Prickett: The Price Of Leon Valley’s First Amendment Retaliation

Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

I was initially going to wait and write a more in-depth post on the going-ons at Leon Valley, Texas,[1] but circumstances compel me to write now. The problem in Leon Valley is a heavy-handed police chief who views any dissent as something to be stopped, without regard to the niceties of complying with state or federal law.

Earlier this year, a so-called First Amendment auditor started wandering through the Leon Valley police station, video-recording what he could see. At some point, he ended up in a restricted area of the department, was confronted by the chief, Joseph P. Salvaggio,[2] and asked to leave. Instead of leaving, the auditor, Jesus Padilla, went off on the chief and ended up being arrested. I don’t see a problem with the arrest in itself,[3] but the auditor community did.

So the auditor community showed up to protest at City Hall, in which the Police Department is located, and several other issues came up. Another auditor, Jack Miller, noted that the building had signs up prohibiting both the open and concealed carry of handguns.[4] So Miller showed up, allegedly wearing a non-functional replica rubber gun openly. Instead of arresting Miller on the spot for the offense, they waited, obtained a search warrant, and sent the SWAT team to his house at midnight. This is something that appears to be completely retaliatory, but it’s within the law.

This prompted more auditors to protest. Phillip Turner, the plaintiff in Turner v. Driver on photography rights, showed up and was advised that the municipal judge had issued an order prohibiting photography in the court building. At that point I became interested, and filed an open records request for documents that I thought would be revealing.

And then the big issues arose. The protest group showed up again to register their displeasure, which included stepping on a thin-blue-line flag and generally being obnoxious, all of which is protected First Amendment rights. The police then swooped in on the protesters, arresting them for a number of charges, the most significant of which was Obstructing Highway or Other Passageway. I was not at all surprised when the arraigning magistrate dropped most of the charges as the protesters did not violate that law.

You see, to charge someone with obstructing, you have to be given an order or request to disperse, or you have to actually block the entrance. Neither of those elements were present, and without that, you don’t have a crime. So the call went out for another protest on Saturday, June 23d.

While at the protest, it was announced that Chief Salvaggio was going to have a press conference, and everyone gathered around. At this point, most of those present were arrested, cuffed, and taken into the station. The charge? Obstruction or Retaliation, a third degree felony punishable by 2 to 10 years in the penitentiary. Texas law prohibits publishing the home address or phone number of a peace officer on a website.

What happened was that a person on the chat screen for the YouTube live-stream put up Salvaggio’s home address. It’s not as if it is hard to find; it took me all of 10 minutes to find it, to determine it had a swimming pool in the back yard, that Google had blurred out the house, and to locate both potential family members and telephone numbers. It is in no way appropriate to post any of that information online, ever, especially because you don’t like what they’ve done. And this was after Salvaggio scrubbed what he could off of the internet.

The problem is that those arrested did not publish the address. Someone else did. Salvaggio stated that the individuals arrested were responsible for it, but that starts a very slippery slope. First, the individuals arrested are not the publisher of the webpage—YouTube is. Second, even if they are the publisher, they didn’t put the address out there, and the statute provides that to show intent, the publisher would have to leave it up for over 48-hours or to repost it to another website. Here, the police acted almost immediately, without even giving notice to the individuals.

In addition to the individuals arrested, a number of other people were detained in handcuffs for several hours. And, as in the prior instances, this included several with press credentials, whose cameras, cellphones, and recording devices were seized as evidence. This is a problem, because those who were collecting information for dissemination to the public are protected under federal law.[5] The police can subpoena the evidence, but they can’t seize it, at least not legally. This brings up another issue, that in Texas, unlike every other state in the union and the federal system, there is a statutory exclusionary rule for any evidence that has been seized by any person in violation of the law. In most states, it’s only the police who are covered.

If the cameras were seized in violation of federal law, they are inadmissible as evidence. If, as the activists are alleging, the police intentionally made bad arrests in retaliation or to curtail the activists’ civil rights, then the police have committed crimes. This is not good for Leon Valley, and I would imagine at some point a lawyer is going to tell the mayor what this is likely to cost the city.

[1] Leon Valley is a town of about 10,000 surrounded by the city of San Antonio. It has a police force of about 30 officers.

[2] Chief Salvaggio was retired as a captain from the San Antonio police. While a lieutenant, he was fired for cheating on the captain’s promotional test, and spent four years fighting to get his job back. After arbitration under the uniot contract, he was reinstated and promoted.

[3] The charge is still pending, and there is some question as to whether a police employee told Padilla that the area was open to the public, but upon being told to leave, he refused to do so.

[4] State laws bars cities from prohibiting the carry of weapons in city buildings, with very limited exceptions.

[5] 42 U.S.C. 2000aa, et seq.

65 comments on “Prickett: The Price Of Leon Valley’s First Amendment Retaliation

  1. icrywhenimcaught

    so… people are mad this guy got arrested for filming and wandering around a police station in a restricted area, who then upon asked to leave would not do so. why are you calling them auditors?? why are people protesting for someone doing dumb shit?

    1. Robert Davidson

      Think of these guys like crash test dummies for 1a and 2a rights. Once this settles, you will have a much better chance of keeping your cell phone in Leon Valley if the police see you filming a physical arrest, and open carry into public buildings.

    2. Greg Prickett

      People do “dumb shit” all the time, it’s one of the reasons that I am gainfully employed. As far as calling them “auditors,” that is what they call themselves. Do you have some other term that is more descriptive? I’m happy to look at other labels.

      1. Justin Pulliam

        Greg, I appreciated your story. I learned two important things from it. Thank you for your citations.

        There is a lot more to the story about why people got involved. Hence, the time separation between Padilla’s first arrest and the more recent events. Padilla’s first arrest merely put the city on a lot of radars. Follow up–via non-confrontational tools (e.g. open records or merely trying to talk to city officials)–is what led to the determination that the city staff was bad news. It wasn’t Padilla’s arrest that sparked the outrage for many of the people on the ground. If anything related to that, it is that they are trespassing people from all city property. The widespread outrage was not until they seized the phones and cameras of bystanders.

        The police there seem fixated on seizing all cameras and association equipment like memory cards.

        To be clear, a lot of people who live in Leon Valley are not pleased with how the city treats them. The city just started a red light camera program and their own impound lot. They have an overall anti-citizen attitude. Email me at JustinPulliam at gmail if you are interested in more details about how this ramped up.

    3. Aaron Landry

      Wasn’t actually a restricted area. Gov’t employees tend to think that anything related to the gov’t is off limits to the First Amendment and they then call it restricted… even though it’s a public place that anyone can walk into willy nilly. I can direct you to many videos of cops claiming that the OUTSIDE of a building is off limits because some room inside or ‘restricted’ and many where they ATTACK the photographer on a public sidewalk!

      1. Scott Jacobs

        Dude. There are LOADS of “restricted areas” in a police building, and they are restricted for perfectly valid reasons.

        1. LocoYokel

          That is right, they are restricted. Which means no one is just going to “wander” into them, they require positive action to access. Like someone opening a locked door and buzzing you through.

  2. Scott Jacobs

    I hope the city has a nice, large tax base, because they are going to end up sued into poverty.

  3. Skink

    Although cop-bosses have been making basic legal errors because they want to since the wild west, I place some of this on the Joe Arpaio effect. His shenanigans were embarrassing, then when people dug it, he took the next step to constitutional violations. Some bosses do this because they pander to the noisy uneducated populace; others because they think it’s cool and they’re untouchable after a couple terms. But they all know the actions are unlawful.

    It should be a law that anyone running a law enforcement agency of any meaningful size be strapped to a not-too-dumb lawyer who gets veto power over dumb ideas.

  4. Mark Bennett

    “It is in no way appropriate to post any of that information online, ever, especially because you don’t like what they’ve done.”

    There’s no “in no way appropriate” exception to the First Amendment.

      1. Skink

        Except it is:
        ” Texas law prohibits publishing the home address or phone number of a peace officer on a website.”

        All states have this statute.

        1. SHG Post author

          We were referring to the characterization of things that are inappropriate rather than this specific thing. Or at least I was.

        2. Chris

          “All states have this statute.”

          How many of those have been challenged and ultimately upheld? From a cursory search, FL and CA’s have been struck down, at least.

            1. Scott Jacobs

              Also, there is a perfectly valid governmental interest served by such a statute. While I’m all for shutting down restrictions on speech, this is NOT the hill I would choose to die on.

            2. Greg Prickett

              Scott, there may be a government interest, but First Amendment claims typically are evaluated based on strict scrutiny. I don’t see how the government can show that it has a compelling interest, that the law is narrowly tailored, and that it is the least restrictive means of addressing the issue.

              And the response by Salvaggio is a perfect example of why speech has to be protected.

        3. Anon E. Mouse

          References to the Texas Penal Code 36.06 seem to leave out the second part of the sentence in 1(a) about “intent to cause harm”. That is:
          “A person commits an offense if the person posts on a publicly accessible website the residence address or telephone number of an individual the actor knows is a public servant or a member of a public servant’s family or household *with the intent to cause harm or a threat of harm* to the individual or a member of the individual’s family or household “

    1. Greg Prickett

      Mark, I don’t disagree with you from a First Amendment view. I don’t like the law, I do not think that it is a legitimate restriction on free speech, and I think that type of speech should be and is protected under the First Amendment.

      That doesn’t mean that I have to like the speech, believe the speech to be appropriate, nor condone the speech. I don’t think it is appropriate to post a police officer’s (or any other public official’s) information online so that they have to worry about the safety of their family.

      I also think that neo-Nazi speech is abhorrent, but that doesn’t mean that we can silence it.

      1. Toby Henderson

        If we are talking about a public servant why should the information be private. On one hand you have a point because criminals would hunt them down yet on the other hand it would pressure them to not be criminals and they would actually have to be good servants.

        This was an enlightening article to say the least.

        1. Scott Jacobs

          Because there is a legitimate concern about retaliation for a cop having lawfully performed their duties. A cop that arrests a member of a gang in a completely legal manner could easily find their lives (or the lives of their family) at risk due to retaliation.

    2. finbar martin

      47 U.S.C. § 230 offers a legal shield to You Tubers and bloggers who act as intermediaries by hosting comments on their channels and blogs. Under the law, You Tubers and bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via email, or information received through RSS feeds. 47 U.S.C. § 230 can still hold even if a blogger is aware of the objectionable content or makes editorial judgments. However, Section 230 does not immunize the actual creator of content. The author of a defamatory statement, whether he is a blogger, commenter, or anything else, remains just as responsible for his online statements as he would be for his offline statements.

      1. SHG Post author

        While I can figure out what the hell this obvious crap (this is a law blog; we’re lawyers and judges) has to do with anything, I couldn’t help but be amused that you would be so ignorantly arrogant as to “teach” one of the country’s foremost first amendment litigators about Section 230. You guys are too funny.

  5. Gateman

    Not only did the police “arrest” the witnesses and seize their cameras, they also took their keys, located their cars and had them towed. How on earth is that justified?

  6. Royce Hudson

    Why did Leon Valley hire this guy to be chief after he had been fired for cheating on the captain’s exam? The fact he was reinstated and retroactively promoted by an arbitrator is not an exoneration in my mind. You mean to tell me that there were no other applicants for chief who had a clean record? This guy was obviously pals with someone already high up in LV city government.

    1. Greg Prickett

      The SAPD chief was pretty strongly opposed to him coming back. They refused to reinstate him immediately, and he had to get a state District Court and Court of Appeals to agree that arbitration was binding, and for the Texas Supreme Court to refuse to hear it before he was reinstated.

    2. Aaron Landry

      Look up Baltimore’s most recent Cadets class of 2018. ALL of them failed the 4th Amendment tests… 15 times! Then the cops took over from the lawyer administering the test in the academy, gave them multiple choice tests (as opposed to having to actually think of the answer from memory because you actually learned it) from 1990 and locked and sealed the results while claiming they passed.

      So now you have an entire set of fresh faced Cadets that don’t know how to respect the 4th Amendment in the slightest and just look at what happens to the lawsuits in the next ten years. And you wonder how Leon Valley can reinstate the Chief? Because they are nearly ALL corrupt and the Union and Qualified Immunity allows them to get away with it!

  7. Tom H

    I wouldn’t want to work for this Chief. Ordering a midnight SWAT raid just to give a guy the bird makes me think he doesn’t care if his people get injured. I’m glad everyone went home safe that night.

  8. James

    First, shame on the City Of Leon Valley in the first place for hiring this tyrant (Joseph Salvaggio).
    I served in the US Marines for 5 years, and I did not serve this country so this type of behavior goes unnoticed and unpunished.
    This Police Chief is a disgrace to the citizens he swore an oath to protect.
    By “Protect” means, protecting the peoples rights.

    The chief was upset and retaliated because someone on a YouTube live stream posted his home address.
    The matter of the fact is, I don’t condone ANYONE’S address being posted on social media, public servant or not.
    But, the chief sent SWAT to a gentleman’s house because he was more but hurt of a guy giving him the “finger”.
    I understand the Chief’s concerns in regards of his family’s safety because his home address was posted on social media.
    But did the Chief even give two rats ass on the gentleman’s family safety when he sent SWAT to raid?
    How violated you must feel? How scared must your kids feel seeing these SWAT officer tear down your door.
    Especially that now a days these police SWAT units look like they are about to invade a country.
    Over what? Now is okay to send militarized police to your home and raid it cause a Police Chief is upset you made him look stupid on YouTube.
    NOPE! The Chief does not give a shit…
    He has gone rouge. Rouge cause his corruption is being exposed by citizens armed with cameras.
    What will he do when the citizens show up with guns instead of cameras?
    Will he violate the 2nd amendment also?

    The City Of Leon Valley needs to fire the Chief immediately and re-educate the remaining police officers on the Constitution Of The United States Of America.

    Semper Fi

  9. Chumba

    Are you f-ing kidding me? This is an open and shut case. Chief Saldouchio should just whip out his checkbook and start filling in numbers with lots of zeros on the end.

    How does a people even tolerate a complete and masterful idiot such as this? Man, you get what you deserve, I guess.

    1. SHG Post author

      That’s “Twiqbal” and it has nothing whatsoever to do with the cause of action, but with pleading requirements. You are hereby forbidden to ever utter twikbal again. GOVERN YOURSELF ACCORDINGLY!

            1. JR

              Greg,

              As much as I liked your writeup of the the situation and the insights from you and others those trained in the law, it couldn’t overcome my feeling of wanting to puke watching a little of this video.

              I admire your legal training and experience, but please folks, don’t touch music unless you know what you are doing. Tell your other lawyer friends to just don’t try it.

            2. Greg Prickett

              Actually, those aren’t my friends, those were law students at Columbia in 2012 that created the video for the annual Above the Law Revue contest, and they were the winners that year (they are also the only 3-time winners in the decade old contest).

              Most lawyers will get a kick out of it, because of all the case law references throughout the video.

          1. Frank

            RICO works for me. I see little difference these days between a street gang and a city police force. The police might have better dental.

  10. Don

    Serious question:
    If his home address was published, and it is illegal to publish it, and he arrested people for someone publishing it…
    Did he get a warrant for the youtube user info of the person who published it?
    Or
    Did he already know who published it? (Fellow officer following the orders of his commander to fabricate)

  11. Lee Fletcher

    Greg,
    Your post claims that the area was restricted, but in a footnote 3 you write:
    … and there is some question as to whether a police employee told Padilla
    that the area was open to the public …

    Your statement is contrary to the available evidence.

    The first video from Mexican Padilla shows no signs and you can hear the female employee clearly
    confirm the area is open to the public.
    please note this time 18:10
    youtube.com/watch?v=d4SD5ibuiS4

    In a subsequent video, they posted paper signs
    please note these times 5:13 13:29
    youtube.com/watch?v=lllu5u4mlB4

    1. Greg Prickett

      Lee, that’s all well and good, but once he’s told to leave, he has to leave or he’s trespassing. He was told to leave and refused, and then resisted. That’s what the court’s going to look at.

      1. rusty

        Can you be told to leave a public space in a public building without having committed some sort of offense? That is kind of like trespassing someone from the sidewalk isn’t it?

        1. Gateman

          I would love to hear a legal opinion on this question. If one of these auditors is somewhere like a common area of city hall or a police station lobby or even outside in the public parking lot of a public building, can they be trespassed if they are not committing a criminal offense of any type? Most of the auditors are certainly of the opinion that they can not be trespassed under those circumstances but I have never seen anything to support that opinion.

        2. Greg Prickett

          The short answer is yes, the government can trespass someone from a public space in a public building without the actor having committed a criminal offense. It is nothing like trespassing someone from a public sidewalk.

          1. Ken Mackenzie

            That’s a horrible use of the verb. To trespass is to be a trespasser. To make someone into a trespasser by ordering them to leave is something else. Whatever it is, it’s not “trespassing someone”. I don’t care if that has become common usage in some necks of the woods (it sounds like the sort of mangling of language that emanates from people employed to enforce the law). It should stop.

          2. Matt

            If this is the case, why aren’t authorities trespassing auditors from any and all public spaces, and then arresting them if they fail to leave?

            There are hundreds, maybe thousands of interactions where officers are taunted that they can do nothing in a public space… And these days, the do nothing.

            The only exception I can recall is court spaces, and there’s an ongoing debate about whether judges’ jurisdiction is restricted to courtrooms, the building or, here in the UK, defining the “precincts” of court.

  12. Aaron Landry

    Just some notes: The first encounter… Padilla wasn’t actually in a restricted area. Multiple employees told him he could go where he was (because it’s open to the public for anyone to go there) and only told him it was restricted AFTER they saw him recording. This is a standard misinformed practice for gov’t employees. They think that simply because it’s the gov’t then people can’t record which is patently false. We even have them claiming you can’t record THE OUTSIDE OF THE BUILDING while out on the public sidewalk claiming that because there is some part of the inside that is ‘restricted’ that the entire building is off limits from any angle or place.

    Second thing, as you may be aware from your own interest in the matter: That order by the Judge may very well be unconstitutional. Several such orders have been challenged and tossed out .. In FL no less! Seems to be a very FL thing for Judges to do. If all the order covers is the actual court ROOMS (and not the entire court house) then all the order does is parrot the existing law that says the same thing. Even if it did cover the court house the Judge doesn’t have the ability to blanket cover the entire building as off limits to the First Amendment and every agency within. He simply does not have that authority, period.

    1. Greg Prickett

      First, what they do in Florida is not normally applicable in Texas. Second, do you have anything to back up that the judges don’t have the authority to issue such an order?

  13. pav

    “Second, even if they are the publisher, they didn’t put the address out there, and the statute provides that to show intent, the publisher would have to leave it up for over 48-hours or to repost it to another website.”

    I think you’re construing what is sufficient evidence of intent with a necessary condition to prove intent. The statute says this condition is “prima facie” evidence of intent, not that this condition is required to prove intent.

    1. Greg Prickett

      If the publisher was not the one that posted the address, how are you going to show intent? The statute provides that it is prime facie evidence of intent to leave it up for 48-hours after notice, or to repost it to another site. Certainly they can prove intent in other manners, but they are going to have a real problem proving intent when the poster of the address and the publisher are not the same.

  14. Anon E. Mouse

    When you noted the applicable “retaliation” law, why did you leave out the “intent to cause harm” bit? That seems to make all the difference.

    Texas Penal Code 36.06 (in part):
    “A person commits an offense if the person posts on a publicly accessible website the residence address or telephone number of an individual the actor knows is a public servant or a member of a public servant’s family or household *with the intent to cause harm or a threat of harm* to the individual or a member of the individual’s family or household “

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