When the caption of a 5th Circuit opinion by Judge Emilio Garza includes a police officer’s nickname, and that nickname happens to be “Taser Joe,” you have to find out why. After all, plenty of deputies use Tasers, so it’s not easy to stand out.
In Ramirez v. “Taser Joe” Martinez, Jim Wells County Deputy Taser Joe went to Reynaldo Ramirez’s landscaping business to arrest Ramirez’s sister-in-law on a warrant. It being Ramirez’s business and sister-in-law, he questioned what Taser Joe was up to. Taser Joe was not pleased.
Ramirez claims the officers had their guns drawn and were pointing the guns at his employees, who were kneeling down. Ramirez approached Deputy Michael Teodecki, another Jim Wells County sheriff’s deputy, and asked him to explain what was happening. Teodecki said Martinez was in charge of the operation and did not disclose any other information.Notably, Ramirez’s “crime” was not shutting his mouth upon command, notwithstanding the fact that the deputies were at his business, pointing guns at his employees, who were kneeling down. There’s no mention of whether the deputies forced the employees who had nothing to do with the arrest to kneel in their presence, but it seems reasonable to assume that wasn’t their preferred position.
Ramirez located Deputy Martinez and asked Martinez what was happening and why the officers were there. The two exchanged profanities. Martinez yelled, “You shut your mouth or I will take you to jail!” Ramirez simultaneously yelled, “This is my business, ok?” twice. Martinez yelled, “Turn around and put your hands behind your back!” Ramirez did not comply. Martinez grabbed Ramirez’s hand and told him to turn around, but Ramirez pulled his arm away. Martinez immediately tased Ramirez in the chest.
Aside from asserting that the deputies had intruded on his business and demanding to know what they were doing, Ramirez did nothing to give rise to suggest a crime. Significant detail? Not even close.
Judge Garza held that Ramirez’s act of “pulling his arm away” when Martinez sought to grab it was all the probable cause he needed, relying on Texas Penal Code §38.03 which provides:
The offense of Resisting Arrest is defined in relevant part as follows:
(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
(b) It is no defense to prosecution under this section that the arrest or search was unlawful.
While caselaw holds that pulling away is resisting, the kicker is in subsection (b), that it is no defense to resisting that there was no basis for the arrest in the first place. This flies in the face of the commonly understood belief that if a person has committed no crime, the police have no authority to arrest or use force to effectuate that arrest. Silly people, thinking that there has to be lawful justification at the outset or what follows can’t be lawful.
What continually stymies people’s understanding of how criminal statutes work is their expectation that it will somehow comport with a logical progression. As most any judge will tell you, the law demands you submit first and complain later. Was Ramirez’s annoying Taser Joe with his insipid questions about why deputies were at his business pointing guns at his kneeling employees a crime? Well, no. Not a crime at all, but the fact that he pissed off the deputy was more than sufficient to set in motion the chain of events that placed the burden on Ramirez to submit to arrest. And his failure to do so, by pulling his arm away from Taser Joe, was a crime in itself, even though no crime occurred upon which the arrest could be justified.
There are no shortage of folks, myself included, who think this view of the relative authority of police to arrest for contempt of cop is not merely wrong, but more than sufficient cause for a citizen to defend his constitutional right to be left alone. But neither the legislators who enacted this law, providing police with authority that bears no connection to reason and subjugates citizens to the craziest whims of police, nor the courts agree. The notion is that protecting cops is the first priority. Protecting citizens from cops, not so much.
As if that isn’t bad enough, after Ramirez pulled his arm away, Taser Joe did what he does, he tased him. Based upon the law that pulling away from a police officer attempting to effectuate an arrest, even if there was no basis for the arrest in the first place, is a crime, Taser Joe contended that he was entitled to one free tase. Taser Joe, meet the line.
Therefore, accepting Ramirez’s version of the facts as true, the first Graham [v. Conner, 490 U.S. 386, 396 (1989)] factor weighs slightly against Martinez. Second, a reasonable officer could not have concluded Ramirez posed an immediate threat to the safety of the officers by questioning their presence at his place of business or laying on the ground in handcuffs. Pulling his arm out of Martinez’s grasp, without more, is insufficient to find an immediate threat to the safety of the officers. Third, as in the first Graham factor, according to Ramirez the only resistance he offered was pulling his arm out of Martinez’s grasp; he alleges several officers then forced him to the ground without resistance on his part. Viewing the facts of this record in the light most favorable to Ramirez, any reasonable officer in Martinez’s place would have recognized Martinez’s conduct was objectively unreasonable under the Graham factors.
While pulling an arm away may be sufficient to give rise to a crime, it isn’t sufficient to pose an “immediate threat to the safety of the officers” such that they can use force against him. This is a curiosity, given that the act of Ramirez pulling his arm away is deemed sufficient “resistance” for arrest, a not-inconsequential intrusion into a person’s life and liberty, but insufficient to justify the use of a Taser. Sweet.
And it thus goes without saying that the second tasing of Ramirez, when he was on the ground, handcuffed and not resisting anything, was unreasonable and a flagrant violation of established law. But then, why do you think they call him Taser Joe?
H/T FritzMuffKnuckle and Courthouse News