Reckless Officer Nearly Causes a Dangerous Engagement

[Music] welcome to audit the audit where we sort out the who and what and the right and wrong of police interactions this episode covers handgun carry rights the first amendment and de facto arrests and is brought to us by newsnow memphis's channel be sure to check out the description below and give them the credit they deserve in a video posted on september 29th 2019 by first amendment auditor aaron branch deputy james and deputy zhang of the shelby county sheriff's office in tennessee responded to a call regarding a potential package theft reported by mr branch's girlfriend's mother vernita eckles the allegations were based on doorbell camera footage that showed a neighbor taking a package off of the porch the deputies arrived on the scene and began to question the witnesses ms eckles informed the deputies that the neighbor across the street was the one who took the package and that she may have a bench warrant for her arrest after speaking with ms eccles for approximately two minutes the deputies decide to make contact with the neighbor as they make their way across the street deputy james announces that he intends to arrest the neighbor without validating any of the claims made by the callers what's her name once the deputies made contact with the neighbor they immediately placed her into handcuffs while being detained the neighbor informs the deputies that the package in question belonged to her and had been delivered to the wrong address and instructs her partner to produce the box with her name on it after briefly examining the package deputy zhang decides to place the neighbor into the back of his patrol car while they investigate further once inside the vehicle the neighbor explains her side of the story to deputy zhang and essentially proves that the package rightfully belonged to her not miss eccles the deputies then returned to ms eckel's house to clarify that the package was sent to the wrong address as the officers were explaining the situation mr branch arrived on the scene while open carrying a firearm on his hip who's whose name should it be under the alphas okay now that box that came off her front porch did y'all see a name on that box by any chance we didn't get a chance we were headed now if we show you guys how what the box looks like are you officer sir put your hands up man i don't need to put my hands up deputy james orders mr branch to disarm himself for quote-unquote officer safety and when mr branch refuses the deputy unholsters his firearm according to section 39-17-1351 of the tennessee code tennessee citizens quote have a legal right to keep and bear arms for their common defense but the general assembly has the power by law to regulate the wearing of arms with a view to prevent crime the statute also states that tennessee residents can obtain an enhanced handgun carry permit that entitles the permit holder to carry any handgun or handguns that they legally own or possess however while the statute requires a permit holder to have their permit in their immediate possession at all times when carrying a handgun and display it on demand of a law enforcement officer the statute does not require citizens to disarm themselves whenever they are around police officers rather the statute states the quote any law enforcement officer of this state or of any county or municipality may within the realm of the officer's lawful jurisdiction and when the officer is acting in the lawful discharge of the officer's official duties disarm a permit holder at any time when the officer reasonably believes it is necessary for the protection of the permit holder officer or other individual or individuals in the 2011 case of embody versus ward the united states district court for the middle district of tennessee interpreted this statute as authorizing the quote temporary seizure of weapons that raises a threat to public safety and held that it authorized officers to temporarily disarm an individual in a public park who was wearing camouflage and carrying an ak-47 type weapon that had been modified with an orange barrel tip to resemble a toy after several park visitors had expressed concerns the court concluded that under these circumstances the officer quote had a reasonable belief to disarm plaintiff as necessary for the protection of the permit holder officer or other individuals or individuals in the park area until the weapon was determined to be lawful this situation is distinguishable from the situation in the embody case as mr branch was carrying an ordinary firearm rather than an assault rifle and was on private property as nothing and mr branch's behavior indicated he intended to do anything with the firearm besides exercise his second amendment right to carry it it would be incredibly challenging for deputy james to argue that he had a reasonable belief it was necessary to disarm mr branch for officer safety the proper procedure is supposed to ask if he has his hand going you don't know okay yes i do hey yes i do we went to the class police officers back up that's not legal you got you're telling me to disarm myself this this is my family our safety officer safety we're asking you that's not how the law works yes sir it is it's not okay you got a lot of scores you gotta go to law school i did pay i i want you to record them i'm going to make stars out of both of them i'm gonna make big stars out of them i love tyrants i love tyrants like yourself probably you step inside are you gonna go private i'm a law-abiding citizen i'm not your child are you part of this are you part of this that's my mother are you victim i can't okay i'm not talking to you i'm not talking to you you don't have to okay it's not i need to hear your voice because you're about to jail your partner is it against the law speak a freedom of speech right the officers threatened to arrest both mr branch and his girlfriend for disorderly conduct for arguing with them despite the fact they are on private property where they are invited guests while the first amendment does permit some restrictions on the content in a few limited areas as well as reasonable restrictions to the time place and manner of an individual speech these restrictions typically apply to public locations rather than a home in the 1994 case of city of ledoux vs galileo the supreme court held that quote a special respect for individual liberty in the home has long been part of our culture and our law and that principle has special resonance when the government seeks to constrain a person's ability to speak there whereas the government's need to mediate among various competing uses including expressive ones for public streets and facilities is constant and unavoidable its need to regulate temperate speech from the home is surely much less pressing similarly in the 1969 case of stanley versus georgia the supreme court determined that a georgia law criminalizing the private possession of obscene materials violated the first amendment finding that the quote mere categorization of these films as obscene is insufficient justification for such a drastic invasion of personal liberties guaranteed by the 1st and 14th amendments whatever may be the justifications for other statutes regulating obscenity we do not think they reach into the privacy of one's own home if the first amendment means anything it means that a state has no business telling a man sitting alone in his own house what books he may read or what films he may watch our whole constitutional heritage rebels at the thought of giving government the power to control men's minds given the high level of respect given to the rights of individuals to engage in free speech on private property the officer's threats to arrest mr branch and his girlfriend likely violated the first amendment additionally according to section 39-17-305 of the tennessee code which is the state's disorderly conduct statute quote a person commits an offense who in a public place and with intent to cause public annoyance or alarm engages in fighting or in violent or threatening behavior refuses to obey an official order to disperse issued to maintain public safety and dangerous proximity to a fire hazard or other emergency or creates a hazardous or physically offensive condition by any act that serves no legitimate purpose a person also violates this section who makes unreasonable noise that prevents others from carrying on lawful activities under this definition arguing with a police officer on private property could never constitute disorderly conduct even if the first amendment would not be implicated over here the law says i have to present i didn't even have to give you my idea did you present it listen to me okay articulate what crime i've committed i never said you criminal okay you're supposed it is important to bear in mind that while the officers were occupied with their verbal confrontation with mr branch the unidentified woman who was detained at the beginning of this interaction has been in the back of the patrol car this entire time while the court would likely find that the officers had reasonable suspicion to initially detain her based on the reported theft because the officers placed her in handcuffs in the back of a police vehicle for an extended period of time after she offered evidence that could have dispelled their suspicions a court could conclude that the detention transformed into an unreasonable seizure in violation of the fourth amendment in the 1997 case of us versus avery the sixth circuit court of appeals explained that quote although an officer may have reasonable suspicion to detain a person or his possessions for investigation the officer's investigative detention can mature into an arrest or seizure if it occurs over an unreasonable period of time or under unreasonable circumstances similarly in the 1999 case of houston versus clark county sheriff's deputy the sixth circuit stated that quote an investigative terry stop may indeed ripen into an arrest through the passage of time or the use of force when this occurs the continued detention of suspects must be based upon probable cause although there is no bright line that distinguishes an investigative stop from a de facto arrest the supreme court held in the 1985 case of united states vs sharp that quote in assessing whether a detention is too long in duration to be justified as an investigative stop we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly during which time it was necessary to detain the defendant in the houston case the 6th circuit concluded that placing suspects in handcuffs in a police cruiser did not constitute an arrest including that quote detention in a police cruiser does not automatically transform a terry stop into an arrest nor does the use of handcuffs exceed the bounds of a terry stop so long as the circumstances warrant that precaution however given the minor non-violent nature of the offense being investigated the woman's cooperativeness and the fact that the woman provided evidence that the package was in her name her handcuffed attention in the police cruiser does not appear warranted hey dude mr branch mr brown i'm gonna be quiet the officers explained that the package was sent to the wrong address and the contents of the package did not match what miss eckles was expecting after clearing up the issue with the complainants the officers released the unidentified woman after having detained her for approximately 16 minutes the woman then allowed the officers to enter her home and take pictures of the contents of the package in question deputy james informed mr branch's family that he would file a continuation notice and have an officer follow up at a later date after one more brief verbal exchange with mr branch the deputies returned to their patrol vehicles and began circling the street in an effort to locate mr branch's car by running the tags on all the cars parked nearby he came out that black car right yeah once the deputies found his vehicle they issued him parking citations and their body cam footage ends with some interesting remarks do you think i did anything wrong with him pull my gun at him cause he's getting all right it is unclear whether mr branch filed a complaint or took any legal action against the deputies overall deputy james and deputy zhang get an f for attempting to disarm mr branch without a reasonable basis for doing so threatening to arrest mr branch and his girlfriend for exercising their first amendment rights and for detaining the unidentified neighbor for a questionable amount of time prior to conducting a legitimate investigation at no point during this interaction did mr branch's conduct suggest that he was a threat to the deputies and the notion that citizens should be required to disarm themselves in the presence of an officer while on private property is contrary to the current interpretation of the second amendment both of the deputies utterly failed to de-escalate the situation and deputy james's decision to unholster his weapon was unnecessary unwarranted and extremely reckless that action alone had the potential to needlessly escalate this encounter into a deadly altercation but mr branch remained calm and was not intimidated by the deputies empty threats both of the deputies demonstrated a fundamental misunderstanding of the first amendment and the concept of private property and made a concerted effort to overstep their boundaries on multiple occasions ultimately the deputies did not make any arrests but that is likely due to mr branch's challenging dialogue and willingness to stand up for his rights mr branch gets an a-minus because although he could have invoked his right to remain silent more tactfully he rightfully challenged the legitimacy of the deputy's orders refused to be intimidated by their conduct and managed to remain relatively calm and collected despite efforts of the deputies to escalate the encounter when the deputies initially confronted mr branch his response was stern but not vulgar or aggressive the deputies continued to escalate the encounter and while mr branch did eventually get angry he never got physically aggressive with the deputies and everything he said would likely be considered protected speech this interaction boiled down to a battle of egos but the law appears to favor mr branch's assertions it could be argued that mr branch may have benefited from invoking his right to remain silent and that is likely the case in almost every police encounter however it is equally arguable that mr branch's unrelenting demand that his rights be respected likely played a major role in preventing him from being arrested either way i commend mr branch for having the courage and conviction to stand up for his rights and i encourage you all to give your support to the newsnow memphis channel you can find a link in the description below let us know if there is an interaction or legal topic you would like us to discuss in the comments below thank you for watching and don't forget to check out my second channel for more police interaction content you

Channel: Audit the Audit

Views: 1,277,365

Keywords: amagansett press, first amendment audit, 1st amendment audit, auditing america, news now california, sgv news first, high desert community watch, anselmo morales, photography is not a crime, san joaquin valley transparency, first amendment audit fail, walk of shame, news now houston, police fail, 1st amendment audit fail, public photography, auditor arrested, police brutality, highdesert community watch, pinac news, cops triggered, news now patrick, east hampton

Id: dltX-sA3QP8

Length: 16min 4sec (964 seconds)

Published: Mon Jun 21 2021

Reddit Comments

[u/1978manx]

Punk ass cops waste public resources running EVERY tag in a four-block area, simply to get revenge.

[u/kingcobra5352]

I really hate the “are you a lawyer” condescending question. If I don’t know the law, well too bad, that’s no excuse. If I do know the law, I’m just some asshole pretending to be a lawyer.

[u/gadgetsdad]

First degree contempt of cop was how the officers viewed the situation.

[u/jbk92386]

It is rarely about the law with police. It is about bowing down to their inflated ego.

[u/DefendCharterRights]

Here's the original video, which likely shows a Fourth Amendment right violation.

At 1:30, one officer does a Terry frisk, which requires he have reasonable suspicion the subject is armed and dangerous. I see no grounds for that here. The frisk also is restricted to a patdown of the subject's outer clothing, unless the officer feels something that seems like a weapon. This officer immediately enters her right pocket and removes her phone and keys. Then he enters her left pocket, which is apparently empty. This almost certainly is an unlawful search and seizure.

[u/DefendCharterRights]

Audit the Audit usually has fairly solid legal analyses. But, his analysis of this video's handgun issue seemed weak to me.

At 1:56, Mr. Branch entered the scene open carrying a handgun on his hip. At 2:11, Deputy James spotted the weapon and ordered Mr. Branch to put his hands up "for officer safety" (a.k.a., the legal "magic words") and unholstered his handgun at 2:18. Later, at 13:18, the deputy justified his unholstering "because [Mr. Branch] was getting irate." At 2:14, Mr. James was passively non-compliant ("I don't need to put my hands up.") but didn't seem to get upset until some time later.

At 2:22, AtA: "Deputy James orders Mr. Branch to disarm himself 'for officer safety.'"

A minor nit, but, at this point, I didn't hear Deputy James order Mr. Branch to disarm...only to put his hands up. Later, a deputy gave Mr. Branch the option to either disarm or leave the scene.

At 4:19, AtA: "As nothing in Mr. Branch's behaviour indicated he intended to do anything with the firearm besides exercise his Second Amendment right to carry it, it would be incredibly challenging for Deputy James to argue that he had a reasonable belief it was necessary to disarm Mr. Branch for officer safety."

To justify this belief, AtA cited a federal Circuit Court opinion regarding a camouflage-wearing man in a public park carrying an AK-47 with a tip painted orange to resemble a toy gun about whom several park visitors had expressed concern. This court held that this could pose a "risk to officer (or public) safety..."

At 4:09, AtA: "[Mr. Branch's] situation is distinguishable from the situation in the [Circuit Court's] case as Mr. Branch was carrying an ordinary firearm rather than an assault rifle and was on private property."

While Mr. Branch's situation indeed was quite different from the Circuit Court's case, that doesn't necessarily mean "it would be incredibly challenging for Deputy James to argue that he had a reasonable belief it was necessary to disarm Mr. Branch for officer safety." If AtA had found a court case with a situation similar to Mr. Branch's and that judge(s) had decided officer safety was not a legitimate concern, then that would be an entirely different matter. But AtA didn't produce any such case. Instead, he merely claimed "nothing in Mr. Branch's behaviour indicated he intended to do anything with the firearm besides exercise his Second Amendment right to carry it."

I haven't read much case law regarding officer safety concerns when in the presence of someone open carrying. However, I've seen plenty of court decisions where judges are incredibly deferential to officer safety concerns during traffic stops. The mere possibility that a firearm might be present often is enough to justify an officer's order for a driver to exit a vehicle. Combine the actual presence of a handgun with a non-compliant subject, and I wouldn't be shocked if that same deference carries over to situations like Mr. Branch's.

Over the next several minutes, Mr. Branch repeatedly claimed he didn't have to keep his hands up because "I haven't committed a crime." I will note that police can fear for their safety even in the absence of any crime.

I would give AtA a "B" for his overall legal analysis in this video.