Earl David Worden: Another Case of Videographers vs. the Police

February 21, 2017 (Fault Lines) – We’ve run a number of stories on people filming police buildings and the reaction of police to those individuals. I think that it is basically baiting the police, but to be fair, the police do not have to take the bait. The most recent incident occurred in Missouri City, Texas, which is located just southwest of Houston in Fort Bend County. Earl David Worden[1] was filming outside of the police department and both an officer and his sergeant attempted to identify Worden. It’s very clear in the video what happened, and it’s very clear that the officers took the bait.

The problem is that Sergeant Phillip Englishbee wants to know who Worden is, because Worden is filming the police station. I can understand that. I would be curious too. The problem is that Worden is engaged in constitutionally protected activity, as he is well aware. You see, Worden runs with Phillip Turner, the guy that was falsely arrested in Galveston when Sergeant Archie Chapman saw Turner filming. Worden was the guy who filmed Chapman breaking into Turner’s car and searching it without a warrant or probable cause. So Worden knows what he’s doing, and he’s aware of what the law is.

He’s especially aware that Turner just won a case at the Fifth Circuit Court of Appeals, too. In that decision,[2] the Court held that filming the public activities of the police was protected by the First Amendment, stating:

We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police.[3]

The parallels between the two cases continued. As in Turner’s case, Englishbee insisted that Worden identify himself, and Worden refused. Englishbee said that Worden was a suspicious person, and Worden wanted to know if that was a misdemeanor or a felony. Just like in the previous article, Englishbee did not have reasonable articulable suspicion that Worden was involved in criminal activity, but he continued to insist that he be presented with either identification or a name and date of birth. Worden, knowing that he did not have to identify unless he was under arrest, refused. At that point Worden was handcuffed and taken against his will into the police station.

This is where it got really interesting. Worden told Englishbee that he did not have to identify himself under the statute, and Englishbee went to the back, got a copy of the Penal Code, came back, and read the statute to Worden, reciting:

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information. (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has: (1) lawfully arrested the person; (2) lawfully detained the person…[4]

I’m watching this and just groaned—Englishbee just confirmed what Worden had said, that he did not have to identify himself unless he was lawfully arrested, yet Englishbee did not understand what he had read. So long as Worden did not give a false or fictitious name while detained, he committed no offense. But all is well, an Assistant Chief of Police came out and ordered Worden released.

Or is everything okay? This is where the Turner case kicks back in. You see, Turner was handcuffed and moved across the street to a squad car, and was put in the back seat. It wasn’t until the lieutenant came out and checked into the matter that Turner was released. The city said everything was fine, that there was no liability, that it was a mere investigative detention.

The Fifth Circuit said not so fast. The Court said that the initial stop was fine, that Turner could have been casing the police station for an attack or other criminal activity. It then added that:

Grinalds’s and Dyess’s actions—handcuffing Turner and placing him in the patrol car—were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers.[5]

Wait—isn’t that about the same thing that Englishbee did to Worden? Back in Turner, the Court made it crystal clear:

The officers’ handcuffing Turner and placing him in the patrol car, as alleged in the amended complaint, were not reasonable under the circumstances.[6]

I made numerous calls to the Missouri City Police Department, left phone messages, and sent detailed emails to both Chief Michael Berezin and Sergeant Englishbee. Neither responded to my calls, nor did the Public Information Officer (PIO) for the department. It wasn’t until I contacted the city’s PIO that I was able to get any information. She directed me to a statement made by the police department on their Facebook page, and answered several questions.

The statement was good, stating that the matter was under investigation. What impressed me though is that the PIO did not attempt to whitewash this, but immediately stated that it appeared that the officers did not follow “protocol” in dealing with Worden, and that it may be a training issue. Compared to the typical response of cities and their police department, this is an improvement—the typical response is to deny that there was a problem at all.

I’m pleasantly surprised by this, and it bodes well for how Missouri City will handle the investigation. Englishbee does not need to be hung out to dry on this, but the behavior does need to be corrected. It appears that it will be.

[1] Worden has made this into an art. He is very knowledgeable on the law, but he is also somewhat disingenuous, calling himself a “good citizen” and making a big deal that he is not “armed.” Worden cannot legally be armed; he is a convicted felon and a registered sex offender. While that doesn’t affect his right to film, when officers know who he is and his background, it explains some of their disdain for him. [2] Turner v. Driver, et al., No. 16-10312, ____ F.3d ____ (5th Cir., Feb. 16, 2017). [3] Id., slip op. at 12 (internal citations omitted). The Court did note that at the time of Turner’s arrest, the law was not clearly defined, and upheld qualified immunity for the officers on Turner’s First Amendment claim on that basis. [4] Tex. Pen. Code, § 38.02. [5] Turner, at 18. [6] Id., at 19.

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