William B. Mange

Criminal Defense Lawyer in Austin, Texas

Criminal Law Blog

October 20, 2009

The County Commissioners used poor judgment in refusing to supply the Constable of Precinct 3 with all the requested video cameras. Their reasoning appears to be that the deputy constables are not peace officers who are “equal” to the Sheriff’s Deputies and that their main job is to serve papers involved in legal proceedings.

Their thinking is faulty for several reasons.

First, whether the Commissioners like it or not, Constables and their deputies are in fact Texas Peace Officers. Texas Code of Criminal Procedure art. 2.12(2). Though it’s true that Constables spend much of their time serving process, including protective orders, they are Peace Officers nonetheless. They wear badges, carry guns, and yes, tasers. They have all the lawful authority to arrest that Sheriffs and their deputies have. That includes DWI arrests. If the Commissioners don’t like that law, they should contact their state legislators, not cut funding.

Second, it’s too late to close the stable door after all the horses got out, but if only one horse has left, then those doors need to get shut. The Commissioners recently voted to pay $40,000 to a 72 year old grandmother who had been tased by a Precinct 3 Constable, according to the October 20, 2009 Austin American Statesman. Okay, that $40,000 horse got out, but that doesn’t mean that other deputy constables can’t make equally bad decisions. How do you shut this metaphorical stable door?

Put more video cameras in patrol cars.

Having video cameras in patrol cars can deter bone-headed moves such as tasing little old ladies because officers know that what they say and do is recorded.

True, it appears that Deputy Constable Christopher Bieze should have known that he was videotaping himself, and that he went ahead and tased Kathryn Winkfein anyway. From my review of the video, it appears that Bieze lost control of himself because of Ms. Winkfein’s obnoxious attitude and refusal to sign her ticket acknowledging that she knew she had to show up in Judge Steeg’s court by a certain date. It’s a good thing the video was on. Deputy Bieze might be the only one who knows whether he might have gone further had there not been a video camera recording at all.

Even though his boss stands behind his conduct, Bieze still doesn’t know if the Grand Jury will. So far as I know, the Travis County District Attorney’s office has not yet finished its review of the case.

Moreover, if the only news that people got regarding what happened that day was from Travis County Precinct 3 Constable Richard McCain (scroll down some to see his idiotic opinion that Bieze used force properly), would the truth have ever really gotten out? The answer is obviously “no.” Without the video of the stop, tasing, and arrest, the facts would not be fully on display.

Without that videotape, would Richard McCain sweat his next election as the Constable of Precinct 3 the way he should come the next election?

Peace Officers state-wide will also keep their eyes on another, more serious incident involving a taser in Fort Worth. Peace Officers know that if a coroner has ruled the tasing death a homicide, then the videotape of their conduct may be the most important piece of evidence the prosecutor will need.

But the Commissioners voted against supplying half of the very video cameras that the Constable requested. The Commissioners might as well send hand-written notes to the deputies inviting them to make more bone-headed moves. They might as well hold up signs that say “we’re half-hearted about stopping excessive force against septuagenarian speeders.” This puts the Travis County Treasury at risk for compensating more victims of Constabulary violence.

Third, Texas Code of Criminal Procedure articles 2.134 and 2.135 obligate Peace Officers to either write a separate report regarding every motor vehicle stop to essentially compile data that would confirm or refute claims of racial profiling OR videotape their motor vehicle stops. Understandably, many urban law enforcement agencies choose to videotape so they can spend more time patrolling and less time writing reports.

Fourth, the funding issue is critical, because some equipment requires more training than others. Just like when you give welders, phone equipment repairmen, or surgeons new equipment, you have to give them training. But giving a Peace Officer a video camera just means you tell him that the camera turns on automatically when he switches on his emergency lights, but it can be turned on manually, too. You also teach him when he must have the camera recording. All pretty simple, right?

Training an officer on how and when to use a taser is not so simple. Use of a taser is part of a continuum of force and is the last non-deadly weapon an officer may use on that continuum. Continuum of force training is especially important in assessing threat levels and in helping officers make good judgment calls regarding what force, if any, is needed to get a driver to comply with an officer’s lawful order. More money needs to be spent so that officers such as Deputy Bieze will understand that there were many steps on the continuum of force that he just leaped over to get to the unhappy place where he is now.

But one thing the officer will understand: if he’s videotaping himself making a bone-headed move, it will be a lot harder to hang onto his job and his Peace Officer’s license.

William B. Mange

Criminal Defense Lawyer in Austin, Texas

Criminal Law Blog

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