Hell Is a Nuisance
Sometimes the petty offenses the police use to put pressure on bad actors who haven't really broken the law are called nuisance charges. But Leonard Mitchell will tell you one man's nuisance is the next man's hell.
The cops sometimes call them "throw-down" charges, a half-joking reference to the "Saturday Night Special" revolvers that bad police officers plant on unarmed suspects. Years ago, it was "vagrancy." Then it was "pedestrian in the roadway," "disorderly conduct," or "sleeping in public." In Dallas, it's "failure to i.d."
"Failure to i.d." is when somebody refuses to provide identification to the police. The problem is that under most circumstances, it's not really against the law.
Leonard Mitchell, a 37-year-old criminal-law student in night school at El Centro Community College, says two Dallas police officers got mad at him one hot day last July and told him to produce his identification. He quoted the law to them, pointing out that they had no legal right to demand identification.
The police do not have the right to demand identity papers from people who are not being arrested or detained as a witness. If somebody is already being arrested or detained for something else, then that person does have to produce identification. Under any circumstance, you're in trouble if you lie to a police officer. But Mitchell was right: You can refuse to identify yourself if you are not being arrested or detained for something other than refusing to identify yourself.
Since 1987, the Dallas City Attorney's Office has issued five separate legal opinions explaining to the police that they cannot make an arrest on an "original charge" of failure to i.d. That is, the police can't start with failure to i.d. and then tack on charges that have to do with what the person did after failing to produce i.d.
On the other hand, you and I both know what sort of outcome may result from quoting the law to two exasperated cops on a hot day in Dallas (four cops by the time the backups arrived).
It started small and got bigger. Mitchell and his wife got into a verbal beef with two police officers in southern Dallas over a fender-bender. He says he told the police that he had not witnessed the accident and then left the scene with their permission. He says he returned to check on his wife, who was still there arguing with the police. Then he left again.
He says the second time he left, a police officer pursued him. By the time the officer caught up with him, Mitchell had arrived at his place of work and was out of the car, talking to a coworker. The report shows that no radio calls were made to alert other officers that a pursuit was under way.
"The police officer asked me for my driver's license," Mitchell told me. "I said, 'Am I under arrest?' He said, 'No.' I said, 'Am I being lawfully detained as a witness?' He said, 'No.' I said, 'Have I committed a traffic violation?' He said, 'No.' So I said, 'Then you have no right to demand my identification.'"
The police cuffed him and tried to jam him into the back seat of a patrol car. He couldn't fit. Not wouldn't. Couldn't. Leonard Mitchell weighs 460 pounds.
While the police officers pushed and shoved to force him into the back seat of the car, Mitchell says he told them, "Please, sir, it's not that I don't want to get into the vehicle. I am unable to get into the vehicle."
Eventually, they did shoe-horn him into the car, but Mitchell, who was handcuffed behind his back, says he was screaming in pain and begging for mercy by the time they squeezed him into the back seat.
All of this, according to Mitchell, started with a charge of failure to i.d. The police officers involved in the case did not return my phone calls. Lt. Mark Hearn of the Internal Affairs Division discussed general IAD policy with me but declined to comment on this particular case.
The single piece of evidence most strongly supporting Mitchell's version of events is the police department's own summary of the incident, which shows clearly that the original charge against him was "Fail to I.D."
I said to Mitchell: "This is strictly a devil's advocate question. I'm not saying what you should do. But what about the argument that the cops might be having a really bad day, and that you should do exactly what they tell you to do and call them sir and ma'am and stuff like that because you don't want to make things worse?"
"Well," he said, "I'm a criminal law student, and I'm taking a course in which one of the teachers is [state District Judge] Manny Alvarez. He's always teaching us about people's rights as Americans. So shouldn't I defend my rights as an American?"
Good point. Mitchell may still be a guy who creates his own problems to a certain extent. He has two assaults on his record, one of which was dismissed and one of which was reduced to a misdemeanor after he pleaded guilty.
But there are also indications that he's a solid citizen. He asked me not to identify his employer, but I was able to determine that he has a good job with a major institution and has been there for 18 years.
By the time the police got him to the jail, the charges against him had gone through the typical ride-downtown inflation process. On the way, they looked him up in the computer and found two unpaid seat-belt tickets. At the jail, they told the reviewing sergeant that he had fled the scene of an arrest.
But even their own official report begs the question: fled the scene of an arrest for what? They didn't find out about the seat-belt tickets until after he was in custody. You can't be arrested for failure to i.d. So what was he evading?
How did this man wind up going to jail on an original charge of failure to i.d., when five city attorney's opinions and the standing orders of the department say that can't happen?
Mitchell spent two nights in jail. When he was taken to court, he says a judge told him she would give him a sentence of the time he had already served for the tickets and the failure to i.d. if he pleaded guilty.
"I said, 'I really don't want to plead guilty to failure to i.d.,' but she just said, 'Well, it's too late, because you've already served the time, so just go along with it.' Then it was like, 'Next!' You know, she wanted to do the next one in line."
Mitchell wanted out of jail. You and I would want out of jail. He took the plea.
Mitchell, originally arrested for failure to i.d., still faces a trial on a charge of evading arrest. That brings us to another underlying but central element in the mathematics of real-life street justice: a principle sometimes expressed as, "You can beat the rap, but you can't beat the ride."
Once you add up the experience of being arrested, the jail time, and the anxiety and expense of defending yourself in court, you wind up being heavily punished for irritating the police by quoting the law to them whether the charges stick or not.
I recently wrote about the case of Donato Garcia ("Contempt of Cop," September 7), who also was charged with failure to i.d. Garcia is a Mexican immigrant with no criminal record that I could find (I only looked in this country). He was dozing in his car with his kids in the back seat when an officer rapped on the widow with a stick and demanded i.d.
He never refused. He just didn't understand. He wound up getting the snot beat out of him by several officers.
Garcia, like Mitchell, complained to the police department's Internal Affairs Division about being arrested for failure to i.d. In his case, as in Mitchell's, the IAD investigated and rendered a finding of "inconclusive."
Garcia was fortunate enough to gain the sympathy of two experienced lawyers, David Davis and William Dippel, who took his case to the Citizens/Police Review Board. By the time the case got to the review board, the police and prosecutor had revised the charges to another throw-down favorite, sleeping in public.
Garcia won a hands-down victory in which the review board basically said, "What is this man doing here?" The board voted 9-4 to find that the charges against Garcia had been bogus and that the police officer who arrested him used "excessive and unnecessary force."
The police department, which determines discipline for officers, ruled there would be no discipline for the officer who had arrested Garcia.
Garcia still had to go to court on a charge of resisting arrest. Police officials testified all day long. The jury took 15 minutes to acquit Garcia, and afterward jurors told the defense lawyers that they hadn't believed the police.
So guess what? They're still making Garcia go to court later this year on separate charges of sleeping in public and failure to i.d. Even though his lawyers are carrying most of the cost, Garcia, a laborer, is nevertheless in debt in legal fees for 20 percent of his and his wife's annual income. His lawyers may have to go to court two more times to defend him, one trial for each charge. By then his debts will double.
If he were paying the full freight, he would be in debt for at least a full year of his and his wife's combined gross income.
That's for a charge the city attorney and the police department agree is illegal.
Think about that. It's only a nuisance charge when you're watching from afar. When you're on the receiving end of the stick, it can be a disaster.
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