Dallas Criminal Defense Lawyer Blog

The rise of the paramilitary SWAT team is a testament to the failure of America's criminal justice system. It defines the transition from peace officers, to law enforcement.

One problem with giving the government the power to kick in doors while playing army is that the government can't be trusted to kick down the right doors. "New professionalism" advocates like Scalia would be shocked to learn how often the government wields the shock and awe power of the SWAT team at the wrong location.

Recently I file an open records request on Dallas SWAT wrong house raids. The first report I received detailed an incident from December 2005. The person involved didn't ask for blog publicity, so I won't reveal any personal information.

The victim's story-
The victim was at home with her son. The police came to her door demanding entry. The victim pointed out that they were at the wrong house. The police entered the home without pemission, pointed a gun at her son, and threatened to shoot her dog (Puppycide is epidemic among SWAT teams).

This complaint prompted an internal affairs investigation. IA interviewed the cops involved. Can you guess their version of events? Do you think the officer's testimony was all on the same page?

Cop's story
The officers admit to approaching and entering the wrong house. That's where the similarities end. The officers claim to have received permission to enter and search the house. Furthermore they deny pointing a gun at anyone and threatening to murder any dogs.

Amazingly, each police officer testified to the same version of events. That must make it true, right!

Inconclusive
How did internal affairs rule in this case? "Inconclusive" with "no violation of department rules." The main reason for this decision was "conflicting testimony." That is, the cops who entered the wrong house wouldn't admit to the other mistakes they made.

The standard applied by internal affairs was preponderance of the evidence. IA ruled there was not a 51% chance the victim's story was true.

IA obviously discounted the testimony of anyone who was not law enforcement. The victim wasn't a criminal, she was a citizen whose home was wrongfully invaded by SWAT. Is it not 51% possible she was telling the truth? Or is a police confession required?

This is why all police encounters, much less home invasion SWAT raids, should be recorded. Too often a criminal trial comes down to an officer's testimony. Just like IA many jurors will decide conflicting testimony in favor of the person in uniform.

More reading: Grits has this report on the Dallas Police no snitching culture.

Today I received my new 841 page DPS general operations manual on CD. I thought I knew most of DPS' crime investigation techniques. This section on hypnosis took me by surprise.

25 .05 .00 GENERAL The use of hypnosis as an investigative tool for law enforcement is a fairly recent development. Although it was used for this purpose at various times, there was no concentrated effort to develop it as a practicable working tool until about 1970 when the use of hypnosis in several major cases by the Los Angeles Police Department caused a number of other police agencies to examine the possibility of such use . Currently many major police agencies are using hypnosis to some degree in criminal cases.

INVESTIGATIVE HYPNOSIS
05 .02 These guidelines are designed to outline the criteria to be
used in the selection and training of DPS personnel to use hypnosis
and the use of hypnosis by Department personnel .

There are further sections on how to run the hypnosis session, and who not to hypnotize (those with health conditions, and the defendant), and the various hypnotism related reports that are required. I will probably request the Hypnosis Oversight and Training Committee's reports to see if this program is actually in use.

My lay opinion is that hypnosis is quackery. However, if DPS officers are being instructed to consider hypnotizing witnesses I'll have to keep my cynicism in check and do some research.

Assuming hypnosis is real couldn't the hypnotist DPS officer influence the outcome. Isn't that the point of hypnosis? To make people quit smoking, lose weight, or otherwise influence their behavior?

Finally, the rule of evidence require that witnesses can only testify if they have "personal knowledge." Hypnosis would seem to stretch the limits of that definition to absurdity.

What do you think? Is this a valid crime fighting tool? Should we hypnotize witnesses?

www.sobrietytesting.org is the National Sobriety Testing Resources Center. This website limits access to police/prosecutors and shares DWI testing information. Defense attorney's aren't welcome.

Naturally, I filed an open records request with the Department of Public Safety to see what documentation, emails, or letters they had from this group.

Today I found out- None.

I find it hard to believe that a National Sobriety Testing Resource Center has not a single member from DPS. However, that's what DPS is telling me.

The police pull you over and find a suspicious white powder in your car. You swear this powder is for your athlete's foot. The police believe this powder is cocaine.

You are booked into jail. Bail is set at $25,000. The powder is sent to the DPS lab for further testing. You spend two weeks in jail but the DPS lab report comes back negative. Vindicated, you leave jail, short two weeks of life you will never get back.

Think that never happens? You must not practice criminal defense in Texas.

A similar situation with a client led me to file an open records request with DPS. I asked for documentation of cases in which "drugs" were sent to the DPS lab, tested, and found not to be drugs. Here is a copy of my email I sent to the DPS Public Information Office. (To learn how to send your own Open Records Request, click here).

Please accept this email as an open records requests.

Please send all documentation of DPS lab drug testing in which a substance turned out not to be a controlled substance (including marijuana). Please send all offense/arrest reports for these cases.

Please include Dallas and Kaufman County. Please limit this request to cases from 1/1/2006.

I would also like any training manual for testing controlled substances in the field, and DPS lab testing of substances.

I received 62 cases from Kaufman County, and over 500 from Dallas County!! I am still awaiting the police reports on these cases.

Questions I have-
Were these substances all field tested? Were those field tests positive?
Did the suspects tell the police these were not drugs? Did the cops ignore these pleas?
How long did these suspects sit in jail? What was bail set at?
How many of these tests were for marijuana? In Texas, the police can testify that a substance is marijuana. For other drugs, a lab test is required to confirm the substance is narcotics.

Finally, whenever Dallasnews.com does a story on the horrible conditions in the Dallas jail, there are always a few comments on the lines of "Don't break the law, and you won't go to jail!" I wonder what these people would say to the 500 people arrested in these cases?

I'll update as the story progresses.

A TDCAA message board post led me to the National Sobriety Testing Resource Center, www.sobrietytesting.org.

What is the NSTRC? From their website

Welcome to the National Sobriety Testing Resource Center (NSTRC). The purpose of the Center is to provide a comprehensive source of information regarding standardized field sobriety testing, training and certification for authorized and active law enforcement practitioners and instructors. The NSTRC also provides access to the SFST Training Management System, a voluntary, state oriented practitioner and trainer database. The NSTRC is a cooperative effort of the National Highway Traffic Safety Administration (NHTSA) of the US Department of Transportation and the International Association of Directors of Law Enforcement Standards and Training (IADLEST).

Sounds great. I love learning about field sobriety tests. It seems tax dollars are being used on this project so the public, even defense attorneys, should have access to this data. Right?

Wrong.

This system contains confidential and privileged information that is intended only for use by individuals who have received the permission of the Program Director to access this system. If you have not been granted authority by the Program Director, then you are hereby notified that any access, disclosure, dissemination, copying or distribution of the information contained herein is strictly prohibited. Please treat the contents of this site as LAW ENFORCEMENT SENSITIVE AND FOR OFFICIAL USE ONLY. Further distribution of this information is restricted to law enforcement agencies. Any and all persons or organizations violating distribution restrictions will be prohibited from accessing this system.

I'm supposed to believe that this field sobriety test information is so important, that only law enforcement can view it? I can't think of any legitimate reason to keep this information from the public. This isn't counter terrorism, it's DWI enforcement.

Naturally, I sent an email to the Program Director asking for access to the database, and for their public information officer. Then I sent an email to Texas DPS asking for any records they have on this project.

What top secret field sobriety test information is being kept from the public?... Stay tuned to find out.

I am starting work on a new open records project for the Texas Criminal Defense Lawyers Association. Texas already has many individual defense lawyers doing some great open records work. However, these records are not easily shared with other defense attorneys. Ergo, the benefits of these records are not reaching the maximum number of attorneys/defendants.

A central database of open records PDF files seems long overdue. I am going to the December TCDLA executive committee meeting in Denton to pitch this project.

I want to start with Intoxiylzer records. I am seeking maintenance, failure, repair records for all counties in Texas. I'm also seeking TCLEOSE records, training manuals etc.

Are you a criminal defense attorney with open records experience? Are you a law student interested in criminal defense or open government? Do you have a closet full of records to share? Please contact me via email.

Ever wondered how DPS operates their DWI blood testing machine? Probably not. But if you are a DWI attorney, or defendant, this is an important topic.

I am proud to present the Texas Department of Public Safety's

Standard Operating Procedures for Blood Alcohol Analysis by Gas Chromatography

Interesting fact about Gas Chromatography machines. GC machines do NOT measure the amount of alcohol in a blood sample. Rather a GC measures the chemicals in the head space gas surrounding the sample. Henry's Law is applied to determine what the BAC is.

The manual is short, but not a very exiting read. If any scientists/medical technicians wish to offer some insight please comment.

I filed an open records request for documents pertaining to the Cherry Pit raid. I received the affidavit used to search the premises and the investigation report.

Cherry Pit Search Warrant Affidavit and Return

Cherry Pit Investigation Report

I don't have time to break these down yet. Let me know your thoughts.

Few things on the highway are as ubiquitous as a cop hiding from view, armed with a radar gun. As long as local governments have needed tax revenue, radar guns have been used to fine speeders.

How exactly does a radar gun work? Can this information help beat your ticket?
See for yourself. Here is a copy of the Radar Operations Manual from the Texas Department of Public Safety. Happy reading.

Table of Contents/ Chapter 1- Introduction

Chapter 2 Basic Principles of Radar Speed Measurement

Chapter 3 Legal Considerations

Chapter 4 Additional Considerations

Annexes (Graphs etc)

I'm off to Austin to speak at Netroots Nation. I'm in the Open Records Laws For Bloggers roundtable with some other great speakers.

Here is the official Robert Guest guide to Texas Open Records Law For Bloggers

If you don't want to read two pages of brilliant public information information, here is the three sentence version.
1. Open Records Laws Are Confusing.
2. There is no risk in not knowing the law and asking for records.
3. Start asking for records, learn the law later.

I encourage every one to file Open Records requests. You can email, fax, or mail in a request to any government entity in Texas. If you get denied, you lose nothing! If the government tells you the request costs $1,204.23, you can cancel the request. There is no downside to asking, and it makes great blog material.

Besides being inaccurate, Intoxilyzer machines break down frequently.

Last year Kaufman County's DWI breath test machine was taken out of service. Here is what happened.

Reference Sample
Breath test machines are never calibrated on humans. By that, I mean that you don't have a human take a breath then a blood test to see if the machine is accurrate. Instead we rely on reference sample solutions. These solutions are designed for the machine to report a 08 bac.

Horseshoes, Hand Grenades, and Breath Test Machines
In this case the machine was given a reference sample to analyze. What should the machine score a .08 sample to be verified as fit for service? After all, we are convicting Texans with this machine. How accurate should this state's witness have to be?

If you guessed .08 you'd be wrong. Reading from .073 to .087 are acceptable. Good enough for government work.

This particular machine broke down on 1/9/07. What happened to the DWI defendants from the days and weeks before? Did they receive a letter that the machine was broken? Cases dismissed maybe?

Nope. Unless they subpoenad these records, or filed an open records request, these defendants would have never known they blew into a broken machine.

Some would consider material of a broken inaccurate breath test machine to be Brady material. However, DPS decided not to tell anyone about this broken machine.

RACIAL PROFILING PROHIBITED. A peace officer may not engage in racial profiling.

-Texas Code of Criminal Procedure, Article 2.131

This begs the question- What is racial profiling?

From the Code of Criminal Procedure-

law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity.

Texas racial profiling law also requires each law enforcement agency to keep statistics for each officer. The number of arrests, searches, tickets, and warnings are broken down by the race of the suspect. It is then up to the public to examine this information to discover any possible profiling.

Here are the RP stats for Kaufman County DPS troopers.

How To Order Racial Profiling Stats For Your County
Very simple process. Just send an email to pio@txdps.state.tx.us, and request racial profiling statistics for all officers in your county. The information comes in excel, so you shouldn't have to pay anything.

More How-To Open Records Posts
Open Records 101
Open Records 102

Collin County has jumped on the Vampire Prosecutor bandwagon with "no refusal" DWI weekends. A recent DMN story featured a Collin County ADA talking about their new tough on DWI blood draw program.

I filed an open records request for communications, documents, memos etc regarding implementation of this program. After all, if the Collin County District Attorney is so proud of this program then why not share the details with the public?

As usual, the CCDA sought to keep the records secret via the Attorney General. Cheap "tough on crime" PR stunts are easy for bureaucrats. Actually revealing what they are doing to the public is always met with resistance.

Today I received the Attorney Generals ruling. Collin County's illegal unconstitutional forced blood draw program will remain secret. Th CCDA is allowed to withhold most of the documents I requested. I am still unclear as to what, in anything, they are required to send.

How did Sunshine lose? The Texas Government Code states that "internal records" for "internal use" are exempted if "prepared by an attorney representing the state in anticipation.... [of] criminal litigation."

Unbelievable. Prosecutors use judicial activism to create new law, violate your constitutional rights, violate clear provisions of Texas law, and then get to keep it secret from the public.

Bureaucracy always chooses the path of least disclosure.

Some earlier posts on Vampire Prosecutors and DWI No Refusal Policies

Why They Clearly Violate Texas State Law, (COCA Judicial Activism To The Rescue!)

Fort Worth Police

Putting the Force in Forced Blood Draws

Vampire Prosecutors Part II

Sentry, is an online snitch program run by the Department of Public Safety. Sentry allows the public to make anonymous reports of criminal/terrorist activity. From the DPS website-

Take an active role in Texas Homeland Security! Join in the war on terrorism by submitting information about unusual, suspicious and/or criminal activities. You CAN make a difference! Take an active role in Texas Homeland Security! Join in the war on terrorism by submitting information about unusual, suspicious and/or criminal activities. You CAN make a difference!

Citizen Informants- Historically Not Good For Freedom
Let us start with the obvious.Turning citizens into a vigilante spy network is not the work of a limited government. Historically, only tyrants have used such methods. The Stasi and KGB both used citizen informants extensively.

Our government, state and federal, knows that the public will accept almost any program to "fight terrrorism." Ergo, Sentry is not a "snitch on your neighbor for drugs" program. Sentry is for "homeland security."

I was hoping to shed some light on this program. I wanted to see what "terrorist" activity was being reported. Just like DWI roadblocks are really used to find drugs, I expected to find that Sentry was really being used to catch illegal aliens and drug users.

Sentry received over 2,000 reports during 2007. I filed an open records and asked for a copy. The typical bureaucratic reflexes (stall, delay, never disclose) set in and DPS filed for an Attorney General Opinion.

AG Opinion- Keep The Snitching Secret
The AG ruled and- I lost. These records are going to be kept secret unless I file a lawsuit. How was open government defeated?

First of all, DPS filed their response after the 10 day deadline. It should not have been considered. Procedure aside, here is the AG's logic.

1. Texas Open Records Law allows information to be kept from disclosure if the information is confidential by law.
2. No Texas law makes this information confidential.
3. However, a federal law on intelligence databases prevents this information from becoming public.

How does a federal law apply to Texas Open Records? Bribery. The Omnibus Crime Control Act of 1968 is merely a grant program. If a state wants federal cash, they have to play by the rules. Texas, like all states, has chosen to take the money and adopt federal standards for Texas law enforcement.

A side note on limited government/federalism. An expansive federal government that seeks to solve all problems (education, health care, retirement, crime) is anathematic to state's rights and liberty.

Here is how the federal grant hustle works. The feds annually take billions from the citizens of each state. If a state wants to recover the money they have to sign away their sovereignty. If you want education dollars you have to follow No Child Left Behind. If you want highway money then no drinking under 21.

If a state does not take part in this extortion then their citizen's money will go to another state. It's a crooked system and a reason why our federal government was supposed to be limited. Decisions about Texas Open Records should be made by Texans. A Senator from Oregon or a Rep from Kansas has no business deciding Texas law.

Ratemycop.com is a new website where the public can post information on law enforcement. RMC is sending out open records requests to Texas law enforcement agencies. District Attorney offices are responsible for handling some Open Records requests.

How do you think prosecutors feel about Open Records/RateMyCop.com? Let's ask Jim Tirey of Plainview, Texas. From the TDCAA message board.

There are many PIA requestors who are merely out to harass a particular government organization. They make hundreds, if not thousands of requests on a continuing basis. The government entity has to comply; there is no exception for harassing requests.

The striking aspect about organizations such as ratemycop is that it appears to lack a reasonable purpose. If anything, it probably serves to harass the men and women who are out every day trying to make our society safe.

First of all, no entity is more harassing than law enforcement. Only the State jails people who are innocent, or for unpaid traffic tickets, or for engaging in consensual victimless behavior. It shows a disturbing lack of insight that the a prosecutor would consider making copies of public documents harassment. What would that make a suppression hearing- Murder?

Mr. Tirey also states this information serves no reasonable purpose. He must not read This Week's Corrupt Cop Stories. Maybe a service like RateMyCop could prevent disasters like Tulia in the future.

Finally, no TDCAA post would be complete without a John Bradley quote. How does JB feel about Open Records? He thinks they get in the way of his noble crime fighting mission. If any police department can not solve crime because of open records, they are too inept to be in law enforcement.

Prosecutors are in the unique position of being able to let lawmakers know the sometimes dangerous and often unintended consequences of the bills they pass. In the area of public information, some of those laws directly conflict with our duty to make sure investigations are conducted in a safe and professional manner. Interruption by disclosure of confidential information sometimes can and does prevent a worthy public goal of solving crime.

Prosecutors are not in a unique position. I see the dangers and unintended consequences of stupid laws every day. Mr. Bradley would probably be surprised to learn that his "unique" insight on open records is really one of my arguments against Prohibition.

You know Open Records are important if the Government hates it. The State exists not to make your life better, but to advance the interests of the State. Prosecutors see no benefit to Open Records because it does not benefit them directly.

It is the definition of hypocrisy that our Government demands more of our privacy and personal information yet feels harassed when citizens dare ask for copies of public documents.

If you want to know more about your Government file an Open Records request. Prosecutors have much more pull with the legislature than open records activists. If JB and his ilk get their way, open records may be a thing of the past.

Recap- I am participating in a WikiFOIA open records project. Open records requests are being sent to all 50 governors to see if their interoffice email is available to the public.

I sent a open records request to Rick Perry. I asked for all emails to and from the Office of the Governor for four days.

$217 for email
I received a letter from Office of the Governor today. I was told today that it would cost $217 to produce these emails.

That cost includes 12 hours of staff time at $15 an hour plus an extra 20% "overhead" charge. Government employees require 12 hour to do what my Outlook program can do in 30 seconds. I can't wait until they run my health care.

What Next?
Should I send the $217? Nah. I enjoy open records, but not $217 worth. I am considering asking for a waiver of the fee since this material primarily benefits the public. That is supposed to insulate costs in these requests. However, I'm not sure I want to spend the energy. After all, in the private sector I have to keep working to make money.

Labels: open records, Texas

The Collin County District Attorney is proud of their forced blood draw DWI program. They bragged about it to the media, and on the TDCAA message board.

However, they were less enthusiastic when it came to my open records request. As I expected the Collin County DA fired off a letter to the Attorney General asking to keep details of this program secret.

The AG request (right) is notable only for it's pathetic brevity. AG requests usually carry histrionics about officer safety. Collin County merely lists statute numbers and asks for relief.

My prediction- The AG will rule against Collin County and require disclosure. The AG does not favor short unarticulated arguments.

If I walked into court during a criminal trial and said "Objection, Bill of Rights", and then left I wouldn't expect to win either. Obviously, this is just a delay tactic. There can be no legitimate purpose to a request designed to fail.

Why These Blood Draws Should Be Unconstitutional
From your Texas Constitution-

In all criminal prosecutions the accused shall... not be compelled to give
evidence against himself, and shall have the right of being heard by himself or
counsel...

Let's see, we hold suspects down and force them to give blood all while denying them the right to an attorney. Maybe, just maybe, that could violate these provisions.

Labels: Collin County, DWI, open records

WikiFOIA is running an open records expiriment. Bloggers are filing open records requests asking their Governor for email. I am proud to be part of this project and will send a request to Rick Perry today via email (my preferred method).

This project is in response to a series of incident of email destruction among executives in Government. For the history click here.

If you want to join this Sunshine Bloggers Project feel free. Here are the instructions.

Also, here is an excellent Open Records Letter Generator.

Update- Chelsea, a very cheerful employee of Rick Perry, called me to clarify my request. I have dealt with many PIO workers and they have all been very helpful. I hope to post these emails soon.

Ken Sparks, from the Colorado County DA's office was kind enough to quickly respond to my open records request (Thanks, Ken!). Although I may disagree with my prosecutor colleagues on the issues, it is more often than not that we can work together. If only City Attorneys were as cooperative on open records requests.

Many of you want to know more about Texas Open Records. My open records 101 details the process I use to get open records. In an effort to further educate the public, and train more citizens to pursue open records, I have cut and pasted this FAQ from the Texas Attorney General.

What is the Public Information Act?
The Public Information Act, formerly known as the Open Records Act, is located at chapter 552 of the Government Code. The Act provides a mechanism for citizens to inspect or copy government records. It also provides for instances in which governmental bodies wish to, or are required by law to, withhold government records from the public.
What types of records are subject to the Public Information Act?
Any information collected, assembled, or maintained by or for a governmental body is subject to the Public Information Act. The format (paper, electronic, microfilm, etc.) of the record does not affect its status as a public record.
What is a "governmental body"?
For purposes of the Public Information Act, the term "governmental body" encompasses all Texas public entities at the state and local levels. It does not include the judiciary. Private entities may be considered governmental bodies if they are supported in whole or in part by public funds or they expend public funds. The Public Information Act does not apply, however, to private persons or businesses simply because they provide goods or services under a contract with a governmental body.For purposes of the Public Information Act, a governmental body includes all governmental entities with the exception of the judiciary. In addition, some non-governmental entities that receive public funds are considered governmental bodies. -->
How can I request records of the judiciary?
Many court records are available for inspection or copying at the court clerk's office. However, records of the judiciary do not fall under the Public Information Act. To request records of the judiciary, the request must be in writing and must be addressed to the court's custodian of records. For more information about requesting and withholding records of the judiciary, click here.
How do I make a public information request?
The request must be in writing and must be addressed to the governmental body. While the request does not need to be addressed to any particular person, it is a good practice to clearly label your correspondence as a "Public Information Request" or "Open Records Request." Requests sent via fax or email must be addressed to the public information officer or to the person designated by that officer to receive such requests.
What should I say in my public information request?
No "magic language" is required to trigger the Public Information Act. You should, however, make the request as clear and as specific as possible. This will enable the governmental body to identify exactly what information you are requesting.
How long does the governmental body have to respond to my request for information?
The Act provides that a governmental body must respond "promptly" to a request for information. If a governmental body is unable to produce the requested information within ten business days, the officer for public information must send you correspondence certifying that he is unable to do so and he must set a date and time when the records will be available to you.
May a governmental body ask me why I want the records?
No, a governmental body is forbidden from inquiring about the purpose for which the records will be used. However, if a request is unclear or very broad, the governmental body may ask the requestor to more clearly identify or narrow his or her request. Additionally, a governmental body may require additional identifying information to determine that the requestor is eligible to receive certain types of information.
When may a governmental body refuse to release the information I request?
If the information you request falls within one of the exceptions to disclosure found in the Public Information Act, the governmental body may refuse to release the information while it seeks an open records decision from the Attorney General. Unless the governmental body has a previous determination from a court or the Attorney General regarding the precise information requested, a governmental body cannot determine on its own to withhold information.

To recap- I filed an open records request for any local DWI enforcement materials developed or used by Wylie PD. At trial two officers testified these materials did not exist. Through an open records request I learned that not only do such materials exists, but the City tried to withold them claming-

Release of theInformation requested would give people insight into our procedures, which wouldput officers at a disadvantage in a situation regarding: DWI enforcement....searches, arrest and detention, including but not limited to, placing the officer's life in danger. In addition the Information relates to policies and procedures which are different from those commonly known with law enforcement and crime prevention."

Today I received those materials. Basically Wylie put together a 6 page outline on how to handle a DWI arrest. It contains mostly basic DWI 101 material.

WARNING- WYLIE POLICE OFFICERS MAY DIE IF YOU READ THIS.

The statement from Wylie PD's attorney contains many lies, the two most obvious are that these procedures are somehow different than those commonly known, the second is that officer's lives will be threatened. Hyperbolic boilerplate fabrications seem to be the norm in Open Records requests.

I should change my FOIA request letters to match the garbage these City's Attorneys put out. Maybe something like "Million of children may perish, the Moon may explode, and puppies will be tortured if these records are not released within 24 hours!!!!"

The City of Austin finally turned over their records on the Austin PD/Austin Energy Warrantless surveillance program. To recap, Austin PD has a deal with Austin that gives Austin PD access to customer electricity usage information. I filed an open records request for information on the program. Austin PD fought the request by asking for an AG opinion. The AG ruled for disclosure. Today I received the materials from the City of Austin Law Department.

What I Received
I received a list of email addresses for city employees (I'm not really sure why), the Austin Police's customer service agreement with Austin Energy (to provide electricity, not customer info), and a copy of the Austin PD Organized Crime Division Operation Procedure Manual.

The Procedure Manual is eight pages long. The city redacted all but two sentences. The still sent me 8 pages though, with a nice big "redacted- not responsive" stamped on each page to highlight their power of non disclosure.

The Two Sentences
Here is what the City of Austin fought to keep secret. Here is the information that would "endanger officer safety" if released. Drum roll..........................

"Assigned Personnel will use investigative techniques to include.....
F. Check utilities at reported location."

Tax Dollars At Work?
That's it. Austin PD, though the City of Austin Law Department, wasted tax dollars to fight the release of those two sentences. The City told the Attorney General that releasing those two sentences would "endanger officer safety." Is anyone else insulted by such fraudulent arguments? The City of Austin's Law Department is making a mockery of open records and law enforcement such sorry arguments.

No Program Exists
Sometimes what you don't find in an open records request is as important as what you do find. In this Austin PD has no program for this warrantless surveillance. Their is no oversight, no reporting of searches, no suspicion needed to search, nothing. Austin PD has unfettered access to your personal information with no policy as to how, when, or why the information can be accessed.

If an officer is getting divorced and wants to check his spouse's utility bill then he can. Want to see if you neighbor's house is energy efficient? Call Austin PD. Law enforcement discretion rarely goes without abuse, even seemingly benign powers like utility bill searches.

The Harris County DA is in turmoil for a number of recent events. One being an email that mentioned problematic "Canadian" jurors. This email was sent between Prosecutors. "Canadians" being a code work for African Americans.

I filed an open records request to the Dallas District Attorney's office to see if there had been any mentions of "Canadians" in their email. Specifically, I asked for any emails sent by any attorney that had the word "Canadians" in it.

The response from the Dallas office- We can't search our own email.

Really? You don't have Google desktop? ">Dallasites spend millions of dollars yearly for government technology that can not perform a simple search? No wonder so many innocent people are convicted in Dallas County.

Austin Energy Warrantless Surveillance To recap- Austin Police and Austin Energy have an agreement that allows for warrantless surveillance of consumer electricity bills. Austin PD uses this information to search for marijuana growing operations sans warrant.

Request
I filed an open records request with Austin PD and asked for internal policies, inter alia. I received this information, however other records were not disclosed. Austin PD sought an.. wait for it... Attorney General Opinion to avoid disclosure. ACLU Texas also filed a request for the same information.

Labels: austin energy austin police, open records

Thanks to Mark Bennett for his kind words on my open records work. Open records requests are a patriotic duty. The tree of liberty may not always need the blood of tyrants, only their paper trail.

I have received some email asking about the open records process. Here is how I do it.

Find The Right Entity
Search the Internet for the appropriate agencies open record/public information office. Email requests are perfectly valid and my preferred method.

For the City of Dallas- http://dallascityhall.com/pio/open_records/index.html
You can email, fax, snail mail, or use their online form to request records.

For Fort Worth send an email- publicinformation@fortworthgov.org

How to ask, and What to ask for-
No legalese or magic language is required. Simply state that your letter/email is an open records requests. Then ask for the documents you want. Be as specific as possible and be sure and include a time period for your search (eg all documents since 2002).

You will be charged for copying ($.10 a page) and other expenses. Include your name, address, email, fax, and phone number. I have received a few courtesy calls from a Public Information Officer to help with my request. They are generally helpful and courteous.

My open records requests are very minimal. Here is my Dallas SWAT request.

Please accept this email as an open records request. Please send any documentation, including police reports, that detail any situation in which the Dallas Police, or Dallas SWAT went into a residence to serve a warrant AND the officers either entered the wrong home, or there was mistake in address on the warrant.

In sum, I am looking for reports on how often Dallas PD the SWAT unit have attempted to enter or have entered the wrong house with a search warrant. Please limit the search to documents created on or after January 1, 2002.

That's it. If you want emails, be sure and ask for them. If you want police reports, ask for those. Asking for "all documents" is good, but the PIO may overlook something if you aren't specific.

The Attorney General
If the government wants to keep from disclosing information they will seek an Attorney General Opinion. The government will argue that certain documents are protected by statute or case law from being disclosed. This is a common delay tactic and does not always signal you have uncovered the next Watergate.

You do not have to file any response with the AG. Simply wait for their decision. You can appeal if they rule against you. I never have.

Don't Fear Your Government
Do not be afraid to asking for open records. I have had a few remarks that these requests may result in an IRS audit or my house being raided. Libertarianism can devolve into government paranoia. However, I make these requests without concern.

I started seeing this as good blog content (daily copy is hard to produce), but it is now a civic duty. It has enhanced my defense practice and even created a news item in Austin.

Inspiration- Fight "Sovereign Mischief"
“A fundamental premise of American democratic theory is that government exists to serve the people. … Public records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance” -- Supreme Court Justice Sandra Day O'Conner

"Let the people know the facts, and the country will be safe." -- Abraham Lincoln

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.” —Lord Acton

Labels: open records

First, a recap- I had a DWI trial in Collin County. The arrest was made by the Wylie PD. I subpoenaed the arresting officers to bring any information on local DWI procedures to trial

NHTSA has developed the standard DWI testing and arrest procedures. I was looking for any additional training or procedures used or developed by the Wylie PD. I filed an open records request before trial asking for the same information. By the day of trial I had not received a response to my open records request.

Day of trial- I put both officers on the stand to testify as to the existence of local DWI procedures. The two officers stated no such records exists. At that point I believed there was no point in waiting on the open records request so the trial went on.

Trial Ends- Finding of guilt by the jury. After trial I receive my open records response. Wylie PD, by and through their attorney, states that not only does Wylie have local DWI procedures, they are somehow confidential and not subject to open records disclosure. Wylie PD sought an Attorney General Opinion to deny access to the records.

Finally- I received the Attorney General Opinion which states that all the records I requested must be released. I look forward to finding out what was so important about Wylie DWI procedures as to exclude from the public, and exactly what the two officer's testified to during trial.

For your viewing pleasure, here is the AG opinion. FYI- The CD labeled "Hooker" is not what you think. It is the arresting officer's name.

Labels: DWI, open records

Here are two questions I sent to the Office of National Drug Control Policy-

1. What is the ONDCP policy for drug testing employees?
2. What is the ONDCP policy for past drug use in employment screening?

Here is the response I got from Krystal, a tax payer funded propogandist

If you can provide us with more specific information as to why you are requesting information about internal ONDCP operations and please also supply us with information on how you intend to use the information as that may help expedite your request.Please let us know if you have any questions.

Thank you,

Krystal
Content Specialist
ONDCP Clearinghouse

That's a direct quote. Krystal managed to use the word information 4 times in one sentence. You would think I was asking for George Bush's cell phone number. It is clear that the qualifications for federal propoganda specialist are not that high.

KXAN has picked up on Austin Energy/Austin Police warrant less surveillance program. It's good to see the mainstream press involved. I hope they keep pressing until they get answers.

Next time an Austin Cop questions you, ask for a lawyer. That is what Austin PD did when asked about their Austin Energy customer data mining program. Here is the quote from KXAN

An APD representative agreed to talk to KXAN Austin News about using energy
usage information, but just before the interview, the agency got a call from its
attorneys, advising to refrain from commenting on the issue.

Disgraceful, yet sadly typical. Government always chooses the path of least disclosure. Austin PD is not different. Even more disturbing is the quote from Austin Energy.

"State law allows us to share information with other governmental entities, and
APD is, of course, a city department," said Ed Clark of Austin Energy. " And so,
really and truly, we wouldn't have a basis on which to deny information to them,
and on the other hand, we are interested in assisting them."

Only a bureaucrat, or a fool, could be proud of the disease, death, corruption, and mass incarceration caused by the drug war.

I recently filed an open records request with the Texas Department of Public Safety. I asked for all videos used to train officer for DWI enforcement. I received one DVD. Here is my review of DWI, The Movie.

This film starts off by telling officers that "The Research has shown" that there is a good chance a driver is DWI if he exhibits one or more of these signs while driving- Driving Too Slow, Braking Too Soon, Braking Too Fast, Braking Too Late, Weaving In a Lane, Weaving out of a lane, Turning Too fast, Turning Too Wide, Parking Too Far from the Curb, Turning Without a Signal, Making Illegal U Turns, inter alia.

In sum, nearly every moving violation is a sign of DWI.

To reinforce this idea the video constantly talks about "The Research" that backs up these findings. "The Research has shown" is a constant phrase throught the film. What the video does not state is the research is flawed, biased, has never been subject to peer review, and has only been evaluated by the Government. It is not "research" it is government propoganda disguised as science.

This training video lies to officers. These lies give the moral certainty needed to arrest driver's who are not intoxicated. "The Research" says it must be done, we can not disagree with "The Research".

Common sense tells us this "research" is false. Look at the traffic violations listed as signs of intoxication. How many of those traffic violations have you committed this year? How many times were you intoxicated? Yesterday I parked too far from the curb. I must have been completely intoxicated!!

This video helps explain the illogical testimony I often get from troopers. For example, officers often testify that a defendant's speeding is a sign of intoxication. However, the same officer will then admit that over 99% of speeders are NOT intoxicated.

An officer who will claim that speeding is a sign of intoxication will also never admit the opposite- that the absence of moving violations is a sign of sobriety. Why? "The research" didn't say that and we do not teach logic 101 at DWI school.

DWI is an opinion crime based on junk science. I give DWI, The Movie an F-. It is however, a must see for anyone concerned with the loss of liberty in an age of Neo Prohibiton.

Labels: DWI, Police