Updated on November 22, 2013
The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.” – Patrick Henry
Every government body in this country – from the federal government to local school boards – operates at the whim of the people. In the Declaration of Independence, our Founding Fathers rightly noted that “Governments are instituted among Men, deriving their just powers from the consent of the governed.” This consent does not extend to those who are elected to the offices in which they serve. It extends to every single government agency, department, and service. And, yes, it even extends to the police forces.
Last weekend, a group from Dallas – DontComply.com – organized the Come and Take It Temple rally. The event was attended by as many as 420 people at its height and averaged about 275, not counting the police officers. Most attendees were armed with openly carried rifles or shotguns, which is legal in Texas. The event was designed to draw attention to the fact that it isn’t against the law to openly carry these firearms so long as it’s not done “in a manner calculated to cause alarm.” Court precedent shows that this section of the Disorderly Conduct statute in the Texas Penal Code refers to pointing at or threatening people with the firearm. Mere possession of a weapon does NOT constitute “a manner calculated to cause alarm.”
The event highlighted what I think has become a major rift in trust between the police and the community they service. According to Cpl. Chris Wilcox, the Temple Police Department only had 44 officers dedicated to the rally. He went on to justify that number as the same used for the annual Bloomin’ Temple Festival. BUZZ!! Wrong! I’ve been to the Bloomin’ Temple Festival and I’ve NEVER seen the kind of police presence there that I saw on June 1st. Maybe there were 44 officers dedicated to a single block, but to try and get away with saying only 44 officers were used is not just a lie, but a grossly disrespectful way of speaking to the community.
I have sources within the PD that told me every officer was called into duty on June 1st, the day of the rally. The police department also had the SWAT or tactical team on standby all geared up for the duration of the event. There were snipes, spotters, and photographers on the roofs of the police station and downtown federal building. There were officers on foot, on bikes, in marked cars, and in unmarked cars. There were also plain-clothed cops, detectives and agents they sprinkled into the group (they were easy to pick out). And in addition to the police officers, agents from the BATFE and FBI were on hand to monitor our peaceful demonstration as well (I personally recognized one FBI agent).
George Washington once said that “Government is not reason; it is not eloquence. It is force. And force, like fire, is a dangerous servant and a fearful master.” The Temple Police Department was in full force that day. For a city that our previous mayor called “pro-gun” I found it the height of hypocrisy that so many police officers were on hand to control the masses of peaceful gun owners. I’ve been to open carry rallies in Austin that didn’t have that many police officers on hand. It was just really embarrassing and I’m highly disappointed in our city and police leadership for wasting so many resources that day.
After the event, I got to wondering why the police department has become so anti-gun so I submitted an open records request for the Temple Police Department General Orders Manual (GOM). The GOM is equivalent to what we in the military call an SOP (standard operating procedures). Last week, I finally got a copy of it and finished reading through it on Friday. What I found was quite shocking.
The first thing that jumped out at me was the “Philosophy of the Temple Police Department.” According to the document, “the basic goal of the Temple Police Department is to protect life, property and to preserve the peace in a manner consistent with the freedoms secured by the Constitution.” [emphasis mine] It continues to say that “knowledge of the law and the ability to understand those ideals the law is designed to accomplish is the cornerstone of law enforcement. Compassion and discretion will play an important role within the philosophy of a law enforcement officer.”
Officer Steve Ermis and Sergeant Thomas Menix must not have read this chapter of their manual. When Officer Ermis stopped my son and I on the side of the road back on March 16 while we were hiking down largely empty country roads, the first thing he did grab my weapon – my property – without asking. I remained calm as he asked me what we were doing and why I was carrying a rifle. I even remained calm when he tried to take my personal property without asking or warning. But, when I asked him why he was disarming me he immediately stomped down on my foot, aimed his service pistol at my head, and threw me into the hood of his patrol unit. That’s when I got heated and turned my camera on.
Nothing in that encounter seemed consistent with the “freedoms secured by the Constitution.” Perhaps the authors of the GOM were only referring to the Constitution before amendments were attached. For the rest of this post, it’s important to watch my video again. This video comprises the every second of recording my son and I got on the road that day. It is not edited in any way either at the beginning, anywhere in the middle, or at the end.
According to the Temple Police Departments GOM, there are three kinds of duty-related contacts between officers and citizens: interviews, stops, and arrests.
Interviews are what officers use to engage the community “in order to gain a more thorough knowledge, and become an integral part of, their assigned districts and community.” These are important and necessary elements to gaining the public trust and confidence. If the only contact a police force has with the community is when they are affecting an arrest or writing a ticket, they separate themselves from those they are tasked to serve. Officers are encouraged to engage the public in a “conversational and not confrontational” manner when conducting these interviews. The manual makes clear that interviews are not stops or arrests and that citizens have the right to “fail to respond to the officer, refuse to identify himself, and walk away from the officer.” There is no requirement for someone to speak to an officer if they are not accused of a crime or a potential witness to a crime.
I hear all the time that had I just done what I was told I would never have been arrested and would have been on my way in five minutes. My critics say that since I didn’t satisfactorily answer the officer’s questions, he had every right to think I was up to something. However, that isn’t what the GOM says: “Negative inferences shall not be made based on a citizen’s refusal to cooperate in the interview.”
I’m sure there are some saying that since they were responding to a call for service the interaction can’t be considered an interview. It was a stop. Really? From the GOM:
Stops are “seizures” under the Fourth Amendment. An officer may stop and question a person when the officer has reasonable suspicion that the person may be involved in past, present or future criminal activity. [emphasis not mine]
The question then becomes, what is reasonable suspicion? In State of Texas v Hernandez, the court found that “the officer in light of his experience and general knowledge had specific and articulable facts which taken together with rational inferences from those facts would reasonably warrant the intrusion on the freedom of the person stopped for further investigation” is what constitutes reasonable suspicion. Officer Ermis is a 25-year veteran of police work in the State of Texas. He is also co-founder of Deuce Tactical, a small gun store and instructor of CHL licenses. So, it’s rational to say that the officer had a working knowledge of Texas laws regarding firearms.
As the officer approached me from behind, it was obvious that I wasn’t engaged in illegal activity and, as there were no calls of crimes in the area, there was no reason to believe I had done anything illegal. In order for the officer to effect a legal stop, “the totality of the circumstances – the whole picture – must be taken into account. Based on that whole picture the detaining officer must have a particularized and objective basis for suspecting the person stopped of criminal activity.” This is a quote directly from the GOM of Supreme Court caselaw U.S. v Cortez. IT’S IN THE MANUAL! It even goes on to say that the officer “must be aware of specific suspicious conduct or circumstances to justify the stop.”
There is nothing suspicious about walking through the country with a rifle or shotgun. I even spoke to a guy at the Come and Take It Temple rally that lived on the road on which I was arrested. He said he instantly recognized where I was arrested because he lived 3/4 of a mile down the road. He found it odd that the officer did what he did because he frequently walks down that same road WITH A RIFLE and never had any problems. He even told me the only rifles he has are ARs, just like mine. He also confirmed the presence of feral hogs and coyotes in the area. So, a man walking with his son in that particular area of the country where I was stopped was not out of the ordinary, suspicious, or even curious.
At one point in the video, Sergeant Menix tells me that I’m required to identify myself and provide my CHL. The GOM says “officers should be familiar with Penal Code Section 38.02. A person is not required to identify himself unless he is under arrest.” Government Code Section 411.205 says “if a license holder is carrying a handgun on or about the license holder’s person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder’s driver’s license…and the license holder’s handgun license.” Let me be clear about this: AT NO TIME WAS I ASKED FOR IDENTIFICATION UNTIL I WAS ALREADY IN HANDCUFFS. And since I wasn’t under arrest, according to PC Section 38.02, I didn’t have to provide identification. If I don’t have to provide identification, I don’t have to display my CHL. Granted, I would have provided ID and CHL if it were asked of me, but I was not asked.
Finally, if the officer had made a legal stop, he was required to release me as soon as I “eliminate the officer’s reasonable suspicion of criminal involvement.” This would have happened the minute the officer asked me what we were doing and I told him we were hiking. This would have been evident by the hiking boots, cambelback and water containers we had with us that morning.
As I was trying to explain to the officers that they can’t just drive around disarming people with guns unless they were doing something threatening, Officer Ermis strikingly suggested, “Oh, I felt threatened.” The fact the officer exited his vehicle and approached me without his gun drawn aside, this statement is laughable on its face. The General Orders Manual states, “reasonable suspicion for a valid frisk is more than a vague hunch and less than probable cause…An officer who conducts a frisk must be prepared to articulate the specific factors which gave him ‘reasonable suspicion’ that he was in danger.” This statement summarizes the SCOTUS opinion in Terry v Ohio. The manual further clarifies, “a mere statement that the officer feared for his safety is not sufficient.” [emphasis not mine]
At the point where the officer placed me in handcuffs, I was technically “under arrest.” The GOM cautions officers, “in order to arrest, there must exist facts or circumstances which would lead a reasonable, cautious and prudent person to believe a crime has been committed. This is most frequently called ‘probable cause'”. The Texas Code of Criminal Procedure defines “arrest” this way: “A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.” [emphasis mine]
To bring everything back full circle, the moment I was placed in handcuffs I was legally under arrest. However, in order to effect an arrest, there must be probable cause. In order to have probable cause, there must be “facts or circumstances which would lead a reasonable, cautious and prudent person to believe a crime has been committed.” In order for those facts and circumstances to be present, there should have been a crime. What was that crime?
“An officer must be faithful to his oath of office, the principles of ethical police service and the objectives of the Department…The public demands that the integrity of its law enforcement employees be above reproach, and the dishonesty of a single employee may impair public confidence and cast suspicion upon the entire Department…An employee must scrupulously avoid any conduct which might compromise the integrity of himself, his fellow employees or the Department.”
This was taken directly out of the Code of Conduct in Chapter 301 of the Temple Police Department GOM. The following is part of an affidavit for probable cause that was submitted and sworn by Officer Steve Ermis in reference to my arrest. It was sent to me by a watchdog group that obtained it through the Open Records Act. It may be difficult to read, so I’ll transcribe it below.
I wrote about the dishonesty of the TPD over a month ago. At the time, I was surprised that I would still be facing false charges over a month later. Now, another month and a half has gone by and it appears that these dishonest officers are still donning the uniform they have already soiled with their false oaths and fraudulent reports.
Ermis’ report states that “as Officer Ermis approached the subject the subject began to become angry and irate and yelling that he had broken no law and officer was not going to take his gun.” He goes on to accuse me of “moving his hands around rapidly and in front of his chest area where the loaded rifle was. As officer Ermis reached to control the loaded rifle the subject at this point started physically trying to pull back from Officer Ermis attempting to keep officer Ermis from taking the rifle or physically maintaining control of the subject.”
This is an abject, unadulterated lie. “The public demands that the integrity of its law enforcement employees be above reproach.”
What boggles my mind is that I was there when I was arrested. Officer Ermis was there when he arrested me. Yet, this write up couldn’t be further from the truth and reality of what happened that day. I’m actually a little surprised that the County keeps moving forward with this case in spite of having watched (I assume) the evidence. I’m sure that the daschcam footage shows what really happened to me that day. I’m sure it shows that there was no “yelling that I had broken no law.” It shows that I wasn’t moving my hands rapidly in front my chest – or anywhere for that matter. I know that it will show that when officer Ermis grabbed my rifle, my hands remained calmly at my side and that there was no “skirmish,” as CPL Chris Wilcox reported to the Temple Daily Telegram.
And yet, this charade continues to cost me legal fees and the citizens of Bell County tax dollars. And who knows who else is in jail or now has a record because some TPD officers have lost their way and forgotten their Code of Ethics. Let me remind them:
As a Law Enforcement Officer, my fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence or disorder; and to respect the Constitutional rights of all men to liberty, equality and justice.
I will keep my private life unsullied as an example to all; maintain courageous calm in the face of danger, scorn, or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in thought and deed in both my personal and official life, I will be exemplary in obeying the laws of the land and the regulations of my department. Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary in the performance of my duty.
I will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence and never accepting gratuities.
I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of the police service. I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession…law enforcement.
The fact that Chief of Police Gary Smith allows these officers to wear the uniform is reason enough that he needs to go. The fact that leaders between him and Officer Ermis cover for these lies highlights that our City Council must immediately do a cleaning of the house. There is a trust deficit in this city between the citizens and our police department. Notice I said “our police department” and not “the police department.” When officers consciously go out of their way and forget they are charged “to protect the innocent against deception” and instead actively engage in that deception, I would argue that those officers have lost their authority to act under the color of authority.