Harris County deputy arrests man taking cellphone video

A Tomball-area man who says he was arrested while taking a cellphone video of an officer claims he was detained illegally.

Officials say the truth is more complicated.

A Harris County Sheriff's Office deputy did take the man's cellphone while he was filmining but not necessarily for videotaping, Harris County Sheriff's Office spokesman Alan Bernstein said Friday.

The video, which shows a uniformed deputy talking to a man sitting in a chair outdoors, was taken and posted on Facebook by Michael Gardner of Pinehurst. The deputy, whose name is H. Nguyen, was incorrectly identified in the Facebook post.

"We'll conduct an internal affairs investigation into the case that the video purports to represent to see if any procedures and policies were violated," Bernstein said.

In the video, the deputy looked toward Gardner and asked if there was any reason he was recording.

Gardner answered, "Yes, sir, but I don't answer questions."

The officer then asked Gardner his relationship to the man in the chair, to which Gardner responded he was a friend of the family.

"OK, you need to leave," the deputy said. "Right now it's a (crime) scene."

Gardner replied that he was on private property, videotaping for the "safety of the patron."

The deputy took the phone as Gardner was heard exclaiming, "Sir, I'm not doing anything. This is highly illegal."

Gardner was arrested and later released, although Bernstein said records did not indicate who released him.

The sheriff's office said the deputy was responding to complaints than an intoxicated man had made threats, had carried out an assault and was also suspected of carrying out a sexual assault. It's unknown whether the seated man in the video was the one accused of making threats, Bernstein said.

"Because of the nature of the complaint, the deputy felt that it was not a safe or proper situation for anybody to be standing where he was standing while videotaping," he said.

"The sheriff's office realizes that a citizen videotaping something is not a crime, but that doesn't mean necessarily it was the right thing for him to be there at that time under those cvircumstances."

In many cases, Bernstein said, it's legal for a citizen to videotape a law enforcement officer.

Whether it's legal to disobey an officer's command depends upon the command, said Alex Bunin, of the Harris County Public Defender's Office.

"If the command is to stop pointing a firearm at the officer, or to leave private property that the person does not have permission to occupy, then that is a lawful command that can be enforced with the power of arrest," Bunin said by email.

If the command has no legal basis, however, a person who refuses to obey it isn't violating the law, he said.

A good example, Bunin said, is long-time Houston activist Ray Hill's 1987 appeal to the U.S. Supreme Court. Convicted of interfering with a Houston police officer, Ray successfully challenged "the constitutionality of a city ordinance that made it illegal to, in any manner, oppose, molest, abuse or interrupt a police officer in the execution of his duty."

The incident that sparked the lawsuit happened Feb. 14, 1982, in Montrose. Hill saw a friend intentionally stopping traffic on a busy street, evidently to help a vehicle enter traffic, according to court records.

Two Houston officers approached Hill's friend and began to talk to him. Hill shouted, "Why don't you pick on someone your own size"? to divert the officers' attention from his friend, court records state.

One cop responded, "Are you interrupting me in my official capacity as a Houston police officer?"

Hill answered, "Yes. Why don't you pick on somebody my size?" He was then arrested.