Posted on 07/10/2015 1:45:45 PM PDT by Elderberry
We have been watching the Waco Twin Peaks biker shootout with interest. From the outset, this mass arrest seemed to have some problems, and now that more information has come to light, the City of Waco has opened itself up to serious civil liability. Why? Because this is a textbook example of mass arrests without individual probable cause.
At the heart of every arrest, there must be probable cause. Now, of course, probable cause is a very low standard that can usually be met, but not likely in this case. From what is currently known, the Waco Police Department decided that (nearly) all of the bikers at the Waco Twin Peaks restaurant were guilty by association – in a typical act first, ask questions later fashion.
One attorney has coined the WPD’s actions as “fill-in-the-blank” warrants, which surely could not pass constitutional muster for all 177 arrestees… that is, unless all 177 arrestees were actually in an all out brawl. Apparently, the individuals had even been interviewed separately, so that in theory, Waco actually had the time to craft probable cause affidavits that would have applied to each individual.
Strip these people of their motorcycles and leather vests and this scene could easily have played out in a family reunion setting or a protest. Just because you have the same last name or happen to be attending a giant protest doesn’t automatically make your guilty by association with a few bad seeds. Now stick those people in jail for a month, add a first degree felony, and have several lose their jobs. That creates a recipe for disaster.
If I was bored, I'd go back and check to see how many times he made a direct answer to the substance of a post, rather than a deflection onto a topic of HIS choice.
Quit the hand-wringing over an unrelated issue, counsellor.
He's a bullshit artist. Most of what he says about the law is demonstrably false. Blowhard, big on making demands and shifting burdens.
That you, Cletus? Or your other brother, Cletus? LOL! :)
He was high rolling on a gun post earlier, then backed out and went into some ramble about, find a lawyer in your own area I do not want to be held liable are some stupid something. Sign up date just before this Waco thing broke out.
No question a retread
And a preening lawyer
Whoopteedo
My home state is full of lawyers....about the only consistently democrat voting bloc of whites in my home state
And he used Bill O’Reilly to bolster his cause...on Free Republic....does he not know Bill smears us relentlessly
And has facts wrong
Ironic he and O’Butthead both bloviate
So all the allegations were the same on every form and the only thing changed was the names. You are OK with that? I’ll tell that to my local PD chief. His officers are clearly wasting time by not using a prefilled out form. If I were on the grand jury that would be a red flag. Are you actually excusing this lazy and sloppy police work?
Not from that opinion, but a good summary at South Carolina Bench Book for Summary Court Judges:
Therefore, the magistrate or municipal judge must find within the complainant's affidavit enough information that will justify a reasonable belief that (1) a crime has been committed and (2) the person to be arrested committed the offense. The information in the affidavit must be such that the magistrate can make the determination of probable cause. That is, the affidavit must contain facts, not conclusions. For example, if the complainant merely says, "I swear under oath that Brian Smith stole an automobile," it is conclusory and insufficient.
The requirement to include allegations, "facts," appears as the word "show" (that the named person committed the crime). A complaint without a recitation of fact particular to the named individual is deficient, as a matter of law. "As a matter of law" simply means that the facts stated are taken as true, are not contestable by the accused. Here the complaint is void of specific fact allegations, specific actions taken by the accused. It does not show that the accused has committed an offense.
Art. 45.019. REQUISITES OF COMPLAINT. (a) A complaint is sufficient, without regard to its form, if it substantially satisfies the following requisites:Interesting that Crystal Palace East's professional opinion is that 40% of reviewing appellate courts would find a conclusory complaint to be sufficient.(1) it must be in writing;
(2) it must commence "In the name and by the authority of the State of Texas";
(3) it must state the name of the accused, if known, or if unknown, must include a reasonably definite description of the accused;
(4) it must show that the accused has committed an offense against the law of this state, or state that the affiant has good reason to believe and does believe that the accused has committed an offense against the law of this state;
(5) it must state the date the offense was committed as definitely as the affiant is able to provide;
(6) it must bear the signature or mark of the affiant; and
(7) it must conclude with the words "Against the peace and dignity of the State" and, if the offense charged is an offense only under a municipal ordinance, it may also conclude with the words "Contrary to the said ordinance".
Surprise, surprise, surprise.
Thanks excellent summary.
The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Spinelli v. United States, 393 U.S. 410 (1969); United States v. Ventresca, 380 U.S. 102 (1965); Aguilar v. Texas, 378 U.S. 108 (1964); Rugendorf v. United States, 376 U.S. 528 (1964); Jones v. United States, 362 U.S. 257 (1960); Giordenello v. United States, 357 U.S. 480 (1958). In the instant case - so far as the record stipulated to by the parties [401 U.S. 560, 565] reveals - the sole support for the arrest warrant issued at Sheriff Ogburn's request was the complaint reproduced above. That complaint consists of nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense described in the complaint. The actual basis for Sheriff Ogburn's conclusion was an informer's tip, but that fact, as well as every other operative fact, is omitted from the complaint. Under the cases just cited, that document alone could not support the independent judgment of a disinterested magistrate.The case includes the relevant sections of the complaint.
Yes. As they say: O’Really, Bill?
(4) it must show that the accused has committed an offense against the law of this state, or state that the affiant has good reason to believe and does believe that the accused has committed an offense against the law of this state;The complaints in the Twin Peaks case do have that alternative language. My contention is that Texas Criminal Code will be found to be unconstitutional, if applied so that the complaint does not permit the magistrate to assess the facts relied on to support the conclusion. See case law cited above.
If all the accused are accused of acting in consort to commit the same crime, or simply committing the same crime at the same place, at the sane time, HOW COULD the paperwork be different?
Take a look at the forms they use now. For example, any misdemeanor “ticket,” it’s 98% boilerplate.
The deficiency in allegation isn't that they are "the same" (except for the name). Your lawyer "friend" is not applying his expertise, rather he is using your imprecision in stating the issue as an excuse to avoid confronting the deficiency.
If he was helpful, he'd point out that 98% the same and 100% the same may result in the difference between sufficient and insufficient, and that sufficiency derives from the substance of the allegation.
Best I can see, dialog with Crystal Palace East is good only for flame war and entertainment. He adds no substance, and does not advance the argument in either direction. Nothing but conclusory contentions. Might as well talk to a lamp post.
Agreed. I am guilty of imprecision in the thread. To many distractions. I will correct my imprecision in the future.
Don't sweat it. I was being critical of your foil, not your post. Productive, useful responses don't take advantage of imprecision or error, rather they work around it and aim to get to the nub of the issue or argument.
I'm guilty of tons of imprecision myself, and my posts aren't always helpful even though "helpful" is the direction I want to go in general.
These Waco threads pop up like moles on a regular basis here thanks to a few dedicated liberaltarians and I'd say you whacked this one pretty good. Well done.
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