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Contempt of Cop

Donato Garcia was arrested for "failure to identify," according to police records. That's not supposed to happen in this country.
Mark Graham

Alastair Cooke-Goody doesn't seem like the type to get maced four times and have his face mashed in the dirt for ticking off a Dallas cop.

But on April 30 that's precisely what happened to the young Anglican minister, who was here from London as a consultant to the Episcopal Diocese of Dallas. Cooke-Goody had been parked outside the Hyatt Regency Hotel on Reunion Boulevard, waiting for his wife, Margaret Fant Cooke-Goody, to come out.

She had been attending a charitable event at the hotel. Their two small children were in the back seat of Cooke-Goody's Rover station wagon. Having put in a long day at diocesan headquarters, the minister tilted back his car seat while he waited, leaned back, and shut his eyes to rest.

Apparently he fell dead asleep. The car windows were open.

The next thing he knew, a Dallas police officer was rapping loudly on the car door with his leather ticket book, angrily telling him that he had parked too close to a fire hydrant. The officer told Cooke-Goody to present identity papers or be hauled off to jail.

The story gets a little cloudy from here. Cooke-Goody says he was reaching for his wallet to present his identity papers when the police officer yanked open the car door, hauled him out, maced him several times, threw him down on his face in the dirt, jumped on his back with a knee on his spine, maced him again, punched him in the head, got him in a choke hold until he almost blacked out, and then finally--with the help of two other officers who showed up on bicycles--slapped cuffs on him and took him to jail.

The officer tells a different story. He claims that Cooke-Goody looked like he was reaching for a knife. According to a statement the officer gave to a superior later, the officer admits telling Cooke-Goody that he was required by law to present identity papers when ordered to do so by an American police officer, and that he had no right to remain silent. He concedes that, when Cooke-Goody failed to present his identity papers, he did haul him out of the car, throw him down, and mace him.

So we have at least three big problems here. The first is that the only people I know of who are required to carry identity papers all the time are scared-looking East Germans in old black-and-white movies about the Cold War.

Next problem: In a case called Dickerson vs. United States, the U.S. Supreme Court in its last session upheld the requirement that police give people they arrest and intend to interrogate a so-called "Miranda warning," reminding them that the 5th Amendment of the Constitution protects people in this country from forced self-incrimination and therefore affords them "the right to remain silent."

That's important. Under most circumstances, we Americans do have an unalloyed right to remain silent. So telling us that you're going to haul us off to jail if we remain silent would be a violation of our Constitutional rights and, along with the identity papers business, would tend to make us feel like commie slaves.

Now, there was something else. What was it? I think I got some of this case wrong. Oh, darn! I did. His name isn't Alastair Cooke-Goody. Where did that come from? Shucks. And he's not an Anglican minister, and his wife's name isn't Margaret Fant Cooke-Goody.

Major screw-up. Sorry. And she wasn't attending a charitable event. I don't know where I got all that junk.

No, the real person in this incident is Donato Garcia, age 44, a legal immigrant from Mexico who is a construction worker, and he was in his car after work with his two little kids in back, waiting for his wife to get off from her job in housekeeping at the downtown Hyatt.

Now that doesn't change your feelings about the case, does it? Good. Because, as we know, the Constitution and the law apply to all of us, even if our wives aren't named Margaret.

So this is a real deal about real live people. In fact, when the Donato Garcia case is presented to the Dallas Citizens/Police Review Board at its September 14 meeting, that august body will have a chance to do something fairly significant for a change. One way or another, if they uphold Garcia or uphold officer Kenneth D. Pesce, who arrested him, the board will have an opportunity to attack one of the most deeply ingrained myths in all of cop culture--the idea that you can bust somebody for "failure to ID."

You can't. It's not an arrestable offense. Unless we are already under arrest or detained on suspicion of doing something illegal, we don't have to carry or present papers or give our names to anybody in this country. Even when we are arrested, we don't have to say squat if we don't feel like it. And even if the legal basis for our right to remain silent is the Constitution, most Americans also have a strong cultural dislike for the concept of identity papers and spot identity checks by police. It's just not American. We especially have to keep all of that in mind when the ones being hassled are people with limited means of defending themselves.

When I asked the Dallas Police Department about this issue, they referred me to City Attorney Madeleine Johnson. Unfortunately, on this particular issue Ms. Johnson's office seems to be a little goosey about being pinned down publicly.

In a couple of months, after I threaten a lawsuit, she'll probably send me all of her legal opinions on the question. Lucky me, I am able to get this stuff from her department by less formal means.

In 1993, then-City Attorney Sam Lindsay issued a legal bulletin on "Failure to Identify," which closely tracked state law on the issue. The bulletin says a police officer can charge a person with failure to present identification after that person has been arrested on another charge. In that case, an arrested person can be charged if he either refuses to give his name or gives a fake name or fake ID.

If somebody has not been arrested but only detained--you're standing on the corner, the cruiser pulls over, and they say, "Hey, c'mere, we wanna talk to you"--that person can be arrested if he gives a fake name. But if he refuses to give his name at all, and if there is no other charge on which he can be arrested, the cops can't bust him for refusing to give his name. That's the Fifth Amendment kicking in: You can't lie to a cop, but you do have the right to remain silent.

But Lindsay's opinion didn't have a strong "no," an unambiguous directive not to use failure to ID as sole grounds for arrest. I read it several times, and I can see how a police officer reading it on a bulletin board or hearing it at a roll call might even infer from it that he can, in fact, bust someone for failure to ID. The Texas Peace Officers Association, an African-American police union, has complained repeatedly that its members still see failure to ID being used as a "throw-down" charge on the street.

So last year Madeleine Johnson was supposed to issue a clarification. The problem with her clarification, which I have also read several times, is that it also never says "no." It never says don't do it. In fact, I can read it as a set of instructions for how to do it. The main thing it seems to suggest is that after you bust a person for failure to ID, you need to be sure to pile on some other charges in your report.

There is a lengthy Dallas Police Department Internal Affairs Division file on the Donato Garcia case, which I have read, and it is certainly possible to infer from that file that the police in this case heaped on a bunch of after-the-fact charges.

It took them a while. In the original affidavit for the arrest warrant, Pesce's superior officer said: "The suspect was being arrested for failure to ID..." Eventually, Garcia was charged with sleeping in public, resisting arrest, and failure to ID.

From the original report to later reports to Pesce's statement to Internal Affairs, the description of Garcia's attempt to resist arrest grows more alarming. In the first report, Pesce reports that Garcia "slapped [Pesce's] hand away" while Pesce was wrestling him to the ground and macing him for failure to ID.

By the time the incident reaches Internal Affairs, Pesce reports that Garcia attacked him and hit him in the right forearm so hard that Pesce suffered "a severe muscle cramp" and had "no significant strength" in that arm.

Officer Pesce did not return my calls. But I was also unable to speak with Donato Garcia. His lawyer, David Davis, was concerned that Garcia might say things in an interview that would compromise his case before the review board or in the three misdemeanor charges still pending against him.

Cops operate in a complicated and perilous environment. Maybe we shouldn't pre-judge this particular case before the review board hears it. But in the meantime, let's get the message out there loud and clear about identity papers and failure to ID: not in this particular country.


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