Maryland State P.O.'s Misconduct Raises Important question

[kalipsocs]

[youtube][/youtube]
long version w/out sound

[youtube][/youtube]
short version w/ sound

The reason I put this in CHL discussion because I only had one thought come into my mind when I saw this...if someone cut me off, jumps out of their car and draws a gun, I think I would be drawing my pistol and shooting before he did! This scares me because this gentleman was an officer, but was not clear about that as he had no flashing lights to indicate a stop, no visible identification as such, and he had drawn his pistol well within what I would consider "my personal zone" for someone brandishing a pistol. We can debate his misconduct all day, but does the law IN TEXAS give citizens any protection for prosecution if this incident had gone that far? I know about the clause stating one is justified in use of deadly force against an officer when one is in fear of one's own life through excessive force on the officer's part, but what about something like this?

P.S. I posted both videos so that you viewers can have the whole film footage from the biker to see that there is no slight of hand here as far as the "stop" goes. You can read about the entire ordeal resulting from this video posting on youtube here: http://carlosmiller.com/2010/04/16/mary ... -with-gun/ I do think the blog has a definate bias based on some of the sensationalism, but if all this information is true it scares me at what some agencies can get away with.

DISCLAIMER: THIS IS NOT L.E.O. BASHING!! THIS IS NOT SAYING I WANT TO SHOOT COPS!! It is circumstantial and something I feel needs to at least brought to attention for all of our sake's because MISTAKES HAPPEN THAT COULD HAVE CATASTROPHIC CONSEQUENCES! I personally believe the LEO community as a whole are people who are trying to help the community they work and live in, and do a job most of us wouldn't last a day doing. Thank you!

[sjfcontrol]

Wow -- He (the cop) better not move to Texas. What are the carry laws in MD? Sure looked like some kind of armed attack to me!

[gtrman66]

The biker was wrong for what he did. But holy crap, how long did it take the officer to identify himself? He could have really been screwed. A car cuts me off (or as a LEO on a biker forum stated, he would clip me) and jumps out with a gun and takes that long to identify himself?????... scary thought.

[ELB]

In general, someone who cuts me off and jumps out of his car in plain clothes and pulls a gun is certainly a candidate to be shot, or more likely, be run over with my vehicle (I don't ride bikes).

Specific to this incident: at the very end of the long clip, the biker turns his head (and helmet camera) to the rear, and you can see a marked police car with a light bar. After the biker takes the exit, and just prior to the stop, the biker also turned his head and looked to the rear -- I can't make out the cars in the distance, but it seems he saw something that made him pull over -- he was actually almost stopped when the gray car pulls up.

The fact that what is really jacking up the biker is audio recording the encounter is just flat wrong. I see no privacy element for cops conducting business on a public street.

This is the same thing that the Pennsylvania AG was trying to prosecute with the guy (O'Keefe, I think) and gal (name slips my mind) who went to the Philidelphia ACORN offices and recorded them willing to help set up a prostitution business. Pennsylvania is one of the few states that requires consent of all parties to a conversation before it can be recorded, not just one (as in Texas) As I recall, there is an exception or clause or whatever that says if it is done in a public place (such as an ACORN office open to the public -- or the side of a public highway!) it is not an offense, but I am straining my memory on this and I may be wrong.

[joe817]

At the speed with which the white lines were zipping by about midway through the clip, I'd say the biker was speeding WELL over the limit....perhaps 80 or 90 is my estimated guess.

ELB's right. The biker was almost at a complete stop before the unmarked car, blocked him off, PLUS there was a marked car right behind him.

I suggest this was a 2 car pursuit, in pursuit of a fleeing biker. Just my thoughts.

[JAguirre]

The biker was wrong for what he did. But holy crap, how long did it take the officer to identify himself? He could have really been screwed. A car cuts me off (or as a LEO on a biker forum stated, he would clip me) and jumps out with a gun and takes that long to identify himself?????... scary thought.

I agree about the officer not identifying himself sooner. If he would have gotten out of his vehicle yelling/or very exlaiming very loudly "Maryland State Police", and even shown a badge. I dont know LEO protocol when making a stop and off duty, or a plain clothes officer-in an unmarked and possibly personal vehicle, but did he even need to draw his weapon?

[rexinthecity]

If a guy jumps out of his car with a gun drawn I'm hauling ass out of there. Sad thing is, the biker would probably have been arrested for running from the "cop."

[couzin]

I guess I'll be the minority opinion. Biker said he was speeding (and cutting lanes from the video), he also says he saw the unmarked car as well as the marked cruiser when he went past them. He obviously saw something that made him slow way down when he looked back at some point. Attempting to exit may have bee an attempt to elude. Plain clothes guy did the right thing in waiting for the marked cruiser to catch up, but he should have let the marked unit execute the stop, and he take backup. Either way, a felony stop was in order because the biker may have been running from a crime - you just don't know. If the biker hadn't started back pedalling the bike like he was going to run, that would probably just had the cop keep his gun holstered but hands on JIC. Part of the biker's prosecution is because in Maryland you cannot video or record someone without their permission. You can record video with no sound on your own property (surveillance/security) but recording voice without permission wil get you in trouble. From the other sources reporting this incident - that is what got the biker the jackpot prize - he posted it on Youtube and got sensationalist websites like Carlos Miller to stir up the storm. Sorry - absolutely no sympathy...

[karder]

Maybe I am missing something crucial. I can understand being stopped for traffic violations. While the officer with the drawn gun was clearly over reacting, there was a marked car with lights flashing directly behind the rider involved in the stop so I am guessing he knew they were cops. My problem is with the "wiretapping" charge. Recording video on a helmet cam can in no way be construed as "wiretapping". Secondly, anyone can be filmed or recorded as long as they are in a public place, and a highway is certainly a public place. I can't peep in your window and videotape you through a crack in your curtains as you have a reasonable expectation of privacy in your home, but if you are walking down the street, or conducting a traffic stop, it is completely legal to record anything and everything. Perhaps Maryland laws are different than Texas.

[boomerang]

The law against recording public servants in public place are obviously intended to prevent recordings of police misconduct, politicians taking bribes, politicians soliciting prostitutes, etc.

[srothstein]

The plain clothes cop was wrong in his approach, and almost suicidal. It is very bad tactics to get in front of any suspect, especially one wear you feel the need to draw your weapon. As was already posted, the plain clothes officer should have taken a cover role and let the uniformed officer in the marked car handle the stop.

I am not sure that a felony stop was justified. The taking the exit ramp might have been an attempt to elude, but it might also have been his exit. Since he was already on the exit ramp when we first see the police car (as he turns his head), we really don't know when the officer first tried to stop him. And trying to hide before they try to make the stop is not illegal.

And now, for the original poster's question. Texas penal Code Section 9.31(c) says:

The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to
make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's)
use or attempted use of greater force than necessary.

I would hate to rely on this in a case such as the video presents, but it might make it legal. The biggest problem is seeing if the jury agrees with me that the officer's level of force was unnecessary.

EDIT: Oh yeah, this case should be a reminder to all of us that Texas laws only apply in Texas and other states make their own laws. Maryland is famous for having a law that makes recording of people without their permission or without a warrant a felony. This first became national news when Monica was recorded talking about a stain on a blue dress. I forget her name, but the woman was charged with the unlawful recording of her own conversation since Monica did not know about it. I have not read the law, so I don't know if there are public place or police exceptions. I do remember thinking it must be hard for MD cops to record drunks for field sobriety tests with that law in effect.

[puma guy]

If the biker hadn't started back pedalling the bike like he was going to run, that would probably just had the cop keep his gun holstered but hands on JIC.

The camera lens dramatically distorts the perspective on what you term back pedaling. He appears to be about even with the rear of the unmarked car. When he stops moving backwards it only takes the officer two steps to cover the space between the car and the bike. The motorcycle appears to have a center stand that requires going backward. Regardless of whether or not he was about to flee, it wouldn't warrant stopping him with a bullet. I really see no reasonable cause for a peace officer to behave in that manner. The wiretapping was thrown out by the judge so now the LEO is going to keep throwing something 'til it sticks.
Not the finest hour in Maryland Law Enforcement. "Get off the motorcycle, get out of the car.... " that's what hijackers say.
The guy could have continued off toward the right exit if he was going to flee. He reacted to something after looking backwards and started slowing and came to a stop. He may have heard the B&W's siren and seen lights. We don't know. The point is he stopped. I don't think he had a clue the charcoal car was LEO. That a guy with a badge would behave this way is a very scary thing to me. If he'd reached for his camera to turn it off would he have been shot?

[suthdj]

I have no love of police over stepping their bounds however the only thing I see the LEO did wrong was not identify as he was leaving his vehicle, drawing the weapon I see as a defensive action in case the biker tried to run him over.

[flb_78]

I think the unmarked officer overreacted and he knew it when the marked unit pulled up. When he saw the marked unit pull up, he turned sideways and hid his gun and then reholstered while watching the marked unit.

[The Annoyed Man]

The law against recording public servants in public place are obviously intended to prevent recordings of police misconduct, politicians taking bribes, politicians soliciting prostitutes, etc.

Great minds think alike. Why on earth should there be a law against recording the actions of people on my payroll, doing what I pay them to do? That's just wrong.

On the other hand, the guy was clearly speeding. In the first minute, he wicks it up and blows past a bus using the right lane, and before he slows down, it looks like he's doing nearly 100 mph for 2 or 3 seconds. So whatever happened with the LEOs, he brought it on himself. As to the behavior of the cop in the unmarked car, that didn't seem particularly egregious or furtive to me. He holstered his gun when it was appropriate, not because he was scared of being seen by the other cop from the B&W unit. Lastly, the bike rider was not backpedaling to get his bike onto the center stand. On a sport bike, you have to be off the bike to do that; besides, he wound up using his side stand anyway.