Introduction
This assignment is based on a scenario that involves a police officer named Officer Jones, a victim who approaches the officer seeking his help, and a subject that is pursued by Officer Jones in the belief that the subject may have committed a crime against the victim. The following crimes and civil actions could result from the facts presented in the assignment.
The first crime in the scenario is a false report. An example of a false report statute is Texas Penal Code § 37.08 (False Report to Peace Officer Or Law Enforcement Employee). The offense is committed if “a person, with intent to deceive, knowingly makes a false statement that is material to a criminal investigation and makes the statement to a peace officer conducting the investigation or any employee of a law enforcement agency that the actor knows is conducting the investigation” (Tex. Penal Code § 37.08, 1997). In the scenario, the victim made a false statement to the police officer in reporting the crime committed against her as a robbery by an unknown perpetrator, when she knew it was domestic violence committed by her husband.
Second Crime
A second crime in the scenario is an assault. In Texas, assault is governed by Texas Penal Code § 22.01 (Assault). One way to commit an assault is to “intentionally, knowingly, or recklessly cause bodily injury to another, including the person’s spouse” (Tex. Penal Code § 22.01, 2005). As the victim’s shirt was soaked with her blood from cuts on her head and lip, and she testifies that someone did this to her, and there is no evidence or suggestion that the injury was self-inflicted, it appears that the elements of this crime have been met.
Third Crime
Resisting arrest is a third possible crime in this scenario. This crime is defined by Texas Penal Code § 38.03 (Resisting Arrest, Search or Transportation). The offense is committed by when someone “intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another“ (Tex. Penal Code § 38.03, 1993). The subject pursued by Officer Jones in this scenario did obstruct the officer’s attempts to search him by not stopping when he was ordered to do so and by not keeping his hands where they could be seen. However, based on the recited facts the subject may not have used force in his actions. Specifically, when he was reaching into his front right pocket, it appears he was reaching for his cell phone or perhaps to throw away the drugs and not for a gun, as Officer Jones appears to have believed. As a result, all the elements of this crime may not have been met.
Fourth Crime
A fourth crime in this scenario is drug possession. Chapter 481 of the Texas Health and Safety Code governs drug offenses in Texas. Drug possession is made a crime by stating that a person who is not a registrant may not “manufacture, distribute, prescribe, possess, analyze or dispense” a controlled substance in that state (Tex. Health & Safety Code § 481.016, 1997). Registration is governed by Section 481.063 and includes meeting many requirements and submitting an application. Cocaine is within the list of controlled substances (Rosenthal, 2011). In this situation, cocaine was found in the possession of the subject being pursued by Officer Jones and it is very likely the subject was not registered with the state. Thus, the elements of this crime have been met.
Civil Action
A possible civil action that could be brought is where the subject would claim that Officer Jones was conducting an unreasonable seizure when he took the actions that he did. The Fourth Amendment of the United States Constitution prohibits unreasonable search and seizure (U.S. Const., amend. IV). The first part of this scenario involves whether Officer Jones was justified in stopping the subject. The subject’s attorney would argue that the stop was not justified and was therefore an unlawful seizure. Factors for a justified stop include if (1) the subject appears to not fit the time or place, (2) matches a description of a known suspect, (3) acts strangely, is loitering or looking for something, (4) is running away or furtive, (5) is present in the crime scene area, or (6) is present in a high-crime area (although this requires another factor beyond loitering) (Rice, 2007).
In this situation, the stop can be argued as justified by each of these factors. First, it is 2:00 AM so merely being on the street can be said to not fit the time, as most people would then be in bed asleep. Whether or not the subject fits the description of the suspect is an arguable point. The white pants are a key part of the description, however, it is likely that the subject’s attorney will argue that the dark shirt is not enough for the officer to reasonably believe that this was the suspect, as the shirt was described as red. The refusal of the suspect to stop when ordered to do so by Officer Jones can be characterized as acting strangely or furtively. The subject is definitely seen in the crime area and the area is considered high-crime. On the whole, it appears this stop was justified.
A second part of this case would be an argument that Officer used unreasonable force once he had stopped the subject, thus making the officer’s actions an unreasonable seizure. Factors that are considered in determining the amount of force that can be used include (1) how sever the crime is, (2) whether the suspect was an immediate threat to the safety of the officer or others, (3) whether the suspect was actively resisting arrest or fleeing, (4) any other relevant circumstances (Phillips, 2008). In the present situation, the crime involved was armed robbery, which is serious, although the suspect did not use the gun that the victim said he had on the victim. There are arguments that the suspect posed an immediate threat to the safety of the officer, as the suspect was reaching into his pants and the officer had a belief that the suspect was armed.
Although it subsequent turned out that the suspect was not perhaps not actively resisting arrest with his actions, the officer could reasonably have believed that was the case when the suspect reached for his front right pocket. Other relevant circumstances include the fact that the officer shot the suspect in the shoulder, thus wounding rather than killing him. All of these factors will be considered in whether the use of a gun upon the subject by Officer Jones constituted an unreasonable seizure. Although it does seem the stop was justified, whether or not the use of a gun was reasonable force is probably a closer question.
References
Phillips, R. (2008). Use of force. Law Enforcement Legal Update. Retrieved from
http://www.legalupdateonline.com/4th/140
Rice, B. (2007, July). When can the police stop and frisk you on the street? Legalzoom.com. Retrieved from
http://www.legalzoom.com/us-law/privacy/when-can-police-stop
Rosenthal, J. (2011, January 30). A quick guide to Texas drug possession charges. Retrieved from
http://roselawtx.wordpress.com/2011/01/30/a-quick-guide-to-texas-drug-possession-charges/
Tex. Health & Safety Code § 481.016, 1997. Retrieved from
http://law.onecle.com/texas/health/481.061.00.html
Tex. Penal Code § 22.01, 2005. Retrieved from
http://law.onecle.com/texas/penal/22.01.00.html
Tex. Penal Code § 37.08, 1997. Retrieved from
http://law.onecle.com/texas/penal/37.08.00.html
Tex. Penal Code § 38.03, 1993. Retrieved from
http://law.onecle.com/texas/penal/38.03.00.html
U.S. Const., amend. IV. Retrieved from
http://www.usconstitution.net/xconst_Am4.html
