Fault Lines
13 October 2017

Galveston Sergeant Archie Chapman’s Trespass Trial

January 24, 2017 (Fault Lines) – Last week, Galveston Police Sergeant Archie Chapman was acquitted of criminal charges arising from his contact and arrest of a photography activist. On November 4, 2015, photography activist, Phillip Turner, was on the sidewalk outside the Galveston Police Department, when Chapman contacted him. Chapman demanded that Turner identify himself, and when Turner declined to do so, Chapman arrested Turner for Failure to Identify.[1]

The problem is that Turner was right—he did not have to identify himself under Texas law unless he had already been lawfully arrested. After Chapman arrested Turner, both he and Galveston County Sheriff’s Sergeant Gilbert Villareal took Turner’s car keys and drove through nearby parking lots pressing the remote until they located Turner’s car. At that point, Chapman opened the car, found Turner’s wallet and driver’s license, and left the vehicle otherwise untouched.

Turner’s charges were dropped and the matter was referred to the Galveston County District Attorney’s Office. The DA, Jack Roady, was kind enough to talk to us on this case and pointed out that it was his duty to ensure that everyone had access to justice, even when the person accused of a criminal act was a police officer. He’s absolutely right. And we need to be absolutely clear on this—both the arrest of Turner and the search of his vehicle were unlawful.

So, DA Roady put the matter before the Galveston County Grand Jury and Chapman was indicted for Criminal Trespass.[2] The case was set in District Court, rather than County Court.[3] Villareal was not indicted. Criminal Trespass is where the problem started. One of the elements of criminal trespass is the entry of the entire body into the property that is being trespassed. But when cops search a vehicle, they never completely enter a vehicle. In almost every case, their feet remain outside of the car. That was the case here.

Criminal Trespass was not the best charge for this case. Official Oppression[4] would have been a much better charge. You see, a police officer commits Official Oppression when the officer subjects another person to an arrest or search that the officer knows is unlawful. Here, Turner was arrested for something that was not a crime, and his vehicle was searched without a warrant or a warrant exception, which Chapman did not have. Either of those would have been good charges.

It allowed Greg Cagle, the lawyer who defended Chapman, to beat the. Cagle also was kind enough to talk to us, and he pointed out a trend that he had observed in the greater-Houston area. He noted that most of the DAs were not charging officers with Official Oppression because they not only had to prove that the arrest or search was intentional, but that the officer knew that the arrest or search was unlawful. So he had noticed that most of the prosecutions were for simple penal code crimes like Assault with Bodily Injury instead of Official Oppression.

Cagle also noted that both Turner and David Warden[5] went all over the State and basically baited law enforcement. He’s right, they do, and they know exactly what the law says and what they can and cannot do. It exposes a problem with police officer training, because most police officers believe that if an officer asks someone for identification, then that person has to provide it.

That’s just not the case, and a long series of U.S. Supreme Court cases[6] explain what has to happen for a person to be required to identify themselves to the police. Every single one of those cases require the police to have reasonable suspicion of criminal activity. This is a long-term training issue, where police assume that they have the power to demand ID and where it becomes a control issue. You can look all over YouTube and find examples of so-called “First Amendment audits” of police stations, post offices, entry points at military bases, and so on.

For some of these people, it is a potential business. Turner, has filed suit against numerous agencies, including Fort Worth PD, Austin PD, Round Rock PD, and so on. Round Rock settled the case, Fort Worth is on interlocutory appeal at the Fifth Circuit, and the Austin case is pending. In almost all cases, it’s baiting, but I understand the point that the videographers are trying to make, that they have a right to film things of interest to the public. I also understand the police position. It’s not normal, it is unusual, and it should be checked out. Which brings us back to Chapman and Turner, and the criminal trespass charges.

Chapman’s case was heard in the 10th District Court in Galveston, where the judge is the Honorable Kerry Neves. Judge Neves is the Texas judge who published an order stating that he would no longer accept plea bargains for probation or deferred adjudication in cases where a police officer was the victim. Judge Neves subsequent walked that order back, after substantial outrage. And at the end of the prosecution’s case, Cagle made a motion for a directed verdict, where the court declared the defendant not guilty and ended the case.

Every criminal defendant moves for a directed verdict. Almost every judge denies that motion. But every once in a while, they grant it. Here, Judge Neves granted it and the trial was over. Turner was upset, Warden expressed disapproval, the internet was in a tither, and so on. I could be morally outraged, upset at the decision, claim that Judge Neves was partial to the police and so on.

Except for one small thing. It was the right decision, without question. To commit a criminal trespass, the entire body has to enter the vehicle. Witnesses showed that this did not happen. Without that, the prosecution has not met its burden, and a directed verdict was proper.

I don’t know Judge Neves, and I probably won’t ever appear before him, but I do know that he made the correct decision here, regardless of what some may want to believe. Both Roady and Cagle spoke highly of the judge and his fairness in the trial. I’ll take their opinion on the matter as fact.

We don’t know yet if Chapman will face any disciplinary action for his conduct. The department decided to wait until after the trial to determine that issue, and repeated calls to the Galveston Police Department did not result in anything but a game of pass the hot potato from one office to another. After the first day of being transferred from office to office, on Friday, the chief’s secretary transferred me to Michael Gray (seen in the news clip, above), who immediately transferred me to the voice mail of a second individual, has not as yet responded.

[1] Texas Penal Code § 38.02.

[2] Texas Penal Code § 30.05.

[3] In Texas, County Courts hear misdemeanor cases unless the matter involves official misconduct.

[4] Texas Penal Code § 39.03.

[5] Another photography activist who accompanied Turner.

[6] Terry v. Ohio, 392 U.S. 1 (1968) (an officer with reasonable suspicion that a person was committing, about to commit, or had committed a crime could stop the person to investigate); Delaware v. Prouse, 440 U.S. 648 (1979) (officer may not demand identification absent reasonable suspicion of a crime); Brown v. Texas, 443 U.S. 47 (1979) (officer may not stop and demand identification absent reasonable suspicion of a crime); and Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004) (statute requiring a person to identify themselves to an officer who has reasonable suspicion of a crime was constitutional).

18 Comments on this post.

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  • Brad
    24 January 2017 at 9:31 am - Reply

    This is not directed at Mr. Prickett, and I don’t think it conflicts with anything he wrote in this post: I only take complaints about baiting seriously from police officers (and their mi who are willing to state that the use of bait cars, by LE, is wrong. The pretty much takes care of the need to take serious-like those who complain about baiting of the police by regcit “auditors.”

    • Greg Prickett
      24 January 2017 at 6:07 pm - Reply

      Baiting, whether by police for car thieves or by photographers for cops, is not wrong. Putting an opportunity out there for someone to do something illegal is not inherently bad, all that good people have to do is what is right (ignore the bait).

      People who take the bait, however, have done something wrong. That’s as true for the thief in a bait car or for the officer making an illegal arrest and conducting an illegal search.

      • Brad
        25 January 2017 at 7:50 am - Reply

        I agree. But I think a reasonable person could think that both types of baiting are wrong. What I won’t abide are people who say baiting by popo is okay, but baiting by informal regcit auditors is a nono.

  • JohnM
    24 January 2017 at 10:31 am - Reply

    So, another case of overcharging the police officer. Deliberate or just a screw up?

    • Greg Prickett
      24 January 2017 at 5:59 pm - Reply

      It wasn’t overcharging, both offenses carry the same penalty. Official oppression requires that you get past two hurdles, while trespass only requires one, it is normally easier to prove.

      I think it was just a screw up. DA Roady was very clear that he would prosecute police officers who violated the law, and I think that he was trying to do what is right.

  • jdgalt
    24 January 2017 at 11:52 am - Reply

    I should think Neves’ standing order is good enough proof of bias in favor of police officers to require his recusal from any case where a police officer is a party, a victim, or even a witness.

    • Greg Prickett
      24 January 2017 at 5:59 pm - Reply

      You have to have someone move for the judge to recuse, and in this case neither side did.

  • Tom H
    24 January 2017 at 12:17 pm - Reply

    While most likely the correct verdict, still unsatisfying. On the plus side one could hope that this caused tongues to wag amongst the troops at Galveston PD and they now know when they can demand ID and when to suck it up. My pessimism makes me think they will consider this a win and vindication for them and just keep doing the same thing.

  • Kimball Rhodes
    24 January 2017 at 2:03 pm - Reply

    Verifiable video reporting is God’s latest gift to a dying America. Bless those citizen reporters. Pearland TX police officer Cary Homeyer refers to Mr. Turner as a ‘black moron’ in an on-line post. Homeyer also refers to other activists as ‘turds’. So much for professionalism and building community trust. Someone now must send a directed verdict against Homeyer. He is an abomination and his behavior reinforces the claim that he and his brothers in blue are tarnished beyond repair.

    • Greg Prickett
      24 January 2017 at 6:02 pm - Reply

      Exactly what “god” is that? And do you have any evidence to support that assertion?

      On Officer Hormeyer, yeah, I would agree that his behavior was unprofessional.

  • Jeff Gray
    25 January 2017 at 7:57 am - Reply

    Mr. Prickett,
    I think you made a very intelligent and honest analysis of this case. However, I take exception with labeling of what Phillip Turner does as baiting.
    When the Civil Rights Act was passed African American youth would intentionally visit businesses that openly defied the new law. This would usually result in violent arrest. Later a law suit would be filed in order to enforce the civil rights act. At the time this was the most effective way of insuring that the Civil Rights Act was being followed. Were the brave people who were taking that non violent yet direct action “baiting” police into violating there rights?

    • Greg Prickett
      25 January 2017 at 12:45 pm - Reply

      Yes, that would be baiting also. All baiting means is that you provide someone with an opportunity – and they can either do well or not.

      In Phillip’s case, he provided the opportunity, and unfortunately, Chapman took the bait and violated Phillip’s rights. But that is still baiting.

  • Somebody
    27 January 2017 at 5:02 am - Reply

    Wouldn’t Unlawful Restraint (Texas Penal Code § 20.02) have been an appropriate charge?

    • Greg Prickett
      27 January 2017 at 10:49 am - Reply

      Potentially, but it has never been used for that and Official Oppression is a better fit.

  • Anthony Hoare
    30 January 2017 at 2:41 am - Reply

    From your report, the only logical conclusion is that Jack Roady is either incompetent or corrupt, or both. Surely Roady would have known that the charge of Criminal Trespass would have been easily defeated (AS IT WAS!). A quick nod/wink to Cagle and it was all over.

    As you quite rightly say ‘both the arrest of Turner and the search of his vehicle were unlawful’, but Chapman, a LEO, gets away with it again.

    ERGO, my question, was justice served? I think not. And I think you think not too!

    Re baiting. I worked for the New South Wales Police (Australia) for some time as a civilian from the 1970’s. A unique position, I could observe and be involved from the inside and not be considered a threat. This police agency was at the forefront of ‘internal affairs’ investigations. IA didn’t stuff around. Money was planted, hidden cameras would roll, search warrants and raids, COPS were arrested (not given paid holidays!), they were terminated, brought before the courts and many went to jail, and still do. I’ve yet to see any hint of real accountability in the US or A.
    Cheers from Queensland, Australia.

  • Jim Monsow
    12 February 2017 at 1:21 pm - Reply

    Agree, cops bait people with prostitution, drugs and so on every day. But if they do it it’s completely legal

    • Greg Prickett
      12 February 2017 at 4:14 pm - Reply

      It was completely legal when Phillip Turner did it too.

  • Earl David Worden: Another Case of Videographers vs. the Police
    21 February 2017 at 9:02 am - Reply

    […] 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 […]