A phone call I recently received led me to a possibly new (or broader) threat against law enforcement from self-proclaimed “constitutional auditors” than I’ve seen widely discussed. Maybe it’s time we consider and prepare for it.
The lawsuit that rang my phone
Last month I got a voicemail from a lawyer who wanted to know if I’d consider testifying as a plaintiff’s expert in a lawsuit against the Leon Valley Police Department (TX). He said he was calling me because, “It was almost an exact scenario you blogged about having to do with cellphones of witnesses being seized by police.”
I don’t blog, but I did write about this on Police1. I’m guessing the lawyer had an assistant search online for experts on police and the First Amendment. If he’d actually read my article and bio, he might have surmised I work to help officers and departments avoid getting sued. I declined his invitation.
A typical “constitutional auditor” case
At first glance online, the Leon Valley matter looked like just another “constitutional auditor” case, involving individuals conducting what they term First and Second Amendment “audits.”
If you haven’t heard about or experienced one yet, go to YouTube. You’ll find people who open carry AR-15s because they can and then record the police response. You’ll find people with cameras surveilling government buildings inside and out in broad daylight, or at night from a parked car, and then recording the police response. Or they simply focus on recording police activity. Many videos are embarrassing to law enforcement – or worse. Some auditors also post “good cop” interactions.
Police1 has been addressing the ramifications of such interactions with articles and training, with a focus on how officers and departments might avoid lawsuits and bad public relations. The assumption has been that the intent of these auditors is to – however belligerently – ensure the free exercise of their First and Second Amendment rights without unconstitutional government intervention or suppression.
I planned a cursory online look into the Leon Valley matter. Not to argue the merits of either side – it would take months for all the facts to come out – but rather as a springboard to reiterate the law I’d outlined in my earlier article governing police response to citizens recording them. Then I started coming across stuff that made me more curious.
The curious stuff
As I suspected it would, the plaintiffs’ 45-page “First Amended Complaint and Jury Demand” alleges police violations of 42 USC 1983 and the First, Fourth and Fourteenth Amendments. It’s based on police response to three protests in June that, in combination, involved detaining people, arresting people and seizing digital recording devices.
None of the 11 plaintiffs are from Leon Valley. Four are from San Antonio, a nearby metropolis of 1.5 million people. Leon Valley has around 11,000 people. Google both places and the first image for each is a study in contrasts. San Antonio sports a skyscraper skyline while Leon Valley shows a rural water tank with the town’s name. Only two other plaintiffs were even from Texas – 250 and 300 miles away, respectively. The rest were from Ohio, Arizona and Illinois.
I am curious as to why there aren’t any Leon Valley folks concerned about the constitutionality of their police department’s actions. Similarly, the plaintiff’s attorney is from a northern suburb of Detroit. Where’s the Texas ACLU? Thus far, I haven’t even been able to find any comment from them.
The first protest was of an arrest in Leon Valley in May of Jesus Padilla who self-promotes as Mexican Padilla. He was purportedly arrested three times in April in other places.
But evidence of two May arrests in Leon Valley leaves some confusion. According to the Houston Chronicle, Padilla was wrestled to the ground, handcuffed and arrested for criminal trespass on May 9 because he refused to leave a wing of the police department when told to by Police Chief Joe Salvaggio.
An online video that purports to be a May 9 arrest of Padilla shows a calm man who is recording with his cellphone being arrested without incident in what appears to be a lobby area of the Leon Valley municipal building (which includes the police department) outside a reception window after he asks for a complaint form. He is not arrested by the Chief, and there is no wrestling to the ground.
Padilla was also arrested at the Leon Valley police department on May 2. A video purportedly of that arrest shows a very different acting man. About 17½ minutes into an almost 21-minute video, Padilla, who is recording with his cellphone, leaves a reception window and enters a hallway with offices. Chief Salvaggio comes out one of the offices and asks, “Need some help, sir?” Padilla says, “No.”
The Chief says this is a restricted area and asks him what he’s doing there. Padilla responds in Spanish. The Chief repeatedly says the area is restricted and asks what he’s doing there. Padilla responds only in Spanish. The Chief reaches an arm out. Padilla backs up and says, “No me touches, pendejo!” The two continue their back and forth until the incident ends as the Chronicle described.
I am curious as to which arrest is being protested and why Padilla isn’t a plaintiff.
I talked to Chief Salvaggio
I made clear it wasn’t my intent to get into the merits of any lawsuits, criminal charges, arrests, search warrants or seizures. I merely asked if he had any advice for other police departments. I thought he might discuss how to avoid such incidents.
Instead, the Chief urged departments to prepare. Not simply for people who want to film police activity. If they’re not breaking the law, he said, that’s simple – leave them alone. He said departments need to prepare for outside agitators, harassment, death threats and coordinated efforts at call flooding and records requests flooding intended to overwhelm agencies’ resources. He urged departments to have a pre- and post-incident plan that they coordinate with local prosecutors and city attorneys.
Chief Salvaggio also urged law enforcement agencies to share information. Padilla had been arrested numerous times by different agencies. If departments share such information they will be better able to prepare for what might be an outside organized event that could become huge in scale. The Chief opined that some of these “outside” organizers were interested in anarchy and disrupting local governments by overwhelming demands on their resources, including litigation costs.
Other rumblings
The Houston Chronicle noted that many online comments by Padilla’s anonymous supporters encouraged violence against the cops. That violence didn’t materialize but the Chronicle did observe,
“[L]ibertarians, First Amendment activists and self-styled anarchists from as far away as California, Florida and Ohio gathered at Leon Valley. … Nearly all (of those interviewed) had a run-in with authorities – often child support or divorce-related – that they said ignited their anti-government passion.”
The Chief’s home address was published on YouTube along with threats that included:
“Where is a talented sniper when you need one?” and “Kill pigs.”
Leon Valley City Manager Kelly Kuenstler told Texas Public Radio that city officials and staff had been bombarded with online threats and harassing phone calls at all hours, which included death threats and encompassed spouses and children. She said other small Texas municipalities were dealing with the same problem.
A self-proclaimed activist had a GoFundMe page to raise money for his travel to Leon Valley, adding,
“I’m in talks with many others to arrange for a large organized event in the month of July of 2018 to make clear that the actions being carried out by Leon Valley Police Department that violate people’s civil rights are now getting attention from many of us from across the country.”
A broader threat?
In the immediate aftermath of the Leon Valley incidents, Kevin Lawrence, director of the Texas Municipal Police Association, said he’d like to talk to auditors, “I’d like to know what their end game is. I’d like to know what victory looks like for them.”
The answer may be more complicated than we initially thought. For some it might be simply to test and educate the police on citizens’ rights to record them. For others it might be a passionate, long-held, personal grudge match. For still others, it might be an organized national effort at anarchy and violence.
Police in California have begun discussing, training and planning for anarchists infiltrating peaceful protests and for internet organizing of outside agitators.
Please share your experiences on Police1 – especially if that experience includes “auditors” who seem to have no ties to the local community and its police but come from “outside,” appear organized, and encourage violence and government disruption.
