Cop Block activist Floyd Wallace was sentenced to 210 days in jail Wednesday after Nebraska’s justice system bamboozled the young activist, failing to “Mirandize” him or provide an attorney in court.
Is it legal to carry a tripod around in public?
Is it legal to carry a tripod inside of a rifle case in public?
Plainly, the answer is “yes” to both.
But Wallace, the Cop Block activist who founded a chapter in Omaha, Nebraska, was still arrested for doing just that, near the sally port of the Douglas County Courthouse, and charged with obstructing a police officer, which is Midwestern legalese for contempt of cop.
Only after Wallace’s court hearing yesterday did we discover prosecutors added a charge of resisting arrest against Wallace as well.
Maybe if he had asked for an attorney as is his Sixth Amendment right under the Constitution, Wallace could have retained his innocence and properly fought the charges after being bailed out.
Instead, the only avenue left for him to leave Douglas County Jail before July 17th is to file an appeal.
UPDATE: PINAC News obtained an exclusive interview with Omaha’s interim City Prosecutor Tom Mumgaard, who confirmed that Wallace was properly charged and tried under municipal ordinances by a city prosecutor, but that Omaha tries all cases in the Douglas County Court.
Mumgaard gave the following statement regarding Wallace, whose situation is beyond the boundaries of his authority now that the activist pled guilty:
“I fear that Mr. Wallace misunderstood his rights, and he created a situation that went beyond his First Amendment right to free speech and gave the officer a reason to investigate,” “If people want to get out and video tape, that’s fine. But they need to be clear about the limits.”
“If you want to exercise your First Amendment rights outside of a public building such as a courthouse, and you are carrying what appears to be a weapon, then you should listen to the officer’s order to drop that item.” “If Mr. Wallace had done that, I think it would’ve turned out entirely different.”
UPDATE II: We added information about the Sixth Amendment right to counsel in the body of the story.
If you review the lengthy footage in Cop Block’s report, it’s notable that at no time was Wallace read his Miranda Rights. You can see the original video below, and the action mostly happens in the first few minutes.
According to sources at Cop Block, Wallace had no lawyer appointed at the initial hearing, and saw two previous inmates get 30 day sentences for felony charges, and thought the judge would “be cool.”
So he pleaded guilty.
The judge threw the book at Wallace.
The famous case Gideon vs. Wainwright applies to Mr. Wallace as it does to all criminal defendants.
The [Supreme] Court held that the Sixth Amendment’s guarantee of counsel is a fundamental right essential to a fair trial and, as such, applies the states through the Due Process Clause of the Fourteenth Amendment. In overturning Betts, Justice Black stated that “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” He further wrote that the “noble ideal” of “fair trials before impartial tribunals in which ever defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
Now, he’s scheduled for release on July 17th, 2016, unless he can find legal counsel and pursue an appeal, a writ of habeus corpus or both as is explained below.
The last time we ran into the 20 year-old Floyd Wallace in December 2015, he was being wrongly arrested for saying “Fuck the Police.”
As you can see in the video below, Wallace was nearly shot by police for his visit to that courthouse, which took place on a public sidewalk adjoining a busy city street.
We don’t recommend that citizen journalists seek to engage in activism with police which anyone may reasonably believe to be “high risk,” but that doesn’t make what Wallace did a criminal offense. Wallace even said, “public, accessible” to himself early on in the video, noting like any good citizen journalist that he wasn’t on the grounds of the courthouse. Make no mistake, his expressive conduct, his cursing and yelling is constitutionally protected free speech, as is his right to record these police under the First Amendment performing their public duties in public.
But it’s not an absolute right, and won’t stop your arrest from taking place, or stop the danger of interacting with police who might shove a gun into your face or letting cops think about pulling the trigger while you’re in their crosshairs, especially if you’re carrying a rifle case near a courthouse, coincidentally at the most sensitive area of any legal facility – the place where judges and prosecutors drive in and out of the building.
And Wallace isn’t the first journalist to face down a firearm for doing nothing more than recording video, as PINAC News recently reported in California.
“You’ve got to go,” said the courthouse security guard
“You don’t have any authority over me, I have rights,” responded Wallace in a high pitched voice.
“What have you got in the case?” they asked.
“I don’t like to talk about it,” replied Wallace.
Again, he is partially right, the Fifth Amendment does give one the right to remain silent, but Wallace didn’t invoke his rights, instead preferring to exercise his 1st Amendment rights frequently with the courthouse security, which he did for several minutes until the police showed up.
“Put the gun case down now. Put the gun case down now,” said the Douglas County Sheriff’s deputy, who approached Wallace wearing a suit and tie.
“Are you going to violate my rights, sir?” asked Wallace.
“You’re violating my rights,” yelled Wallace.
The deputy ignored Wallace and continued walking straight towards him.
“Name and badge number.” yelled Wallace, “Am I being detained?”
The deputy kept his weapon in the holster, but obviously placed his hand on the weapon like a scene out of the old wild west, where he was expecting a shootout on the streets of Tombstone.
Wallace had a camera in one hand and a bulky rifle case in the other.
Clearly, he wasn’t a present threat to anyone by carrying the case, which even had it had a gun, would’ve been pretty difficult to get and then fire.
“AM I BEING DETAINED?” asked Wallace again, as the deputy told him to, “put the case down.”
Then the deputy withdrew his weapon and aimed it at Wallace, raising his voice to say, “Put it down.”
The deputy ordered Wallace to, “Open the gun case. Get on the ground right now,” and Wallace complied while yelling, “GOD DAYUM” at the top of his lungs, before blurting out, “What crime do you suspect me of?”
The deputy replied, “Carrying a concealed weapon.”
For once, an deputy making an investigatory detention actually articulated an actual crime, giving him actual right to conduct an actual legal search, but somehow it all went wrong in the end anyhow, resulting in contempt of cop charges which have now imprisoned Wallace.
Nebraska law actually allows “Open Carry” of firearms, with its virtually non-extant state gun laws, but the City of Omaha – within which Wallace was arrested – does have a municipal ordinance which requires weapons registration.
It’s inarguable that by holding the case, a police deputy would have probable cause to search the rifle case for a municipal ordinance, so Wallace did have the proverbial “hot potato” in his hands.
It took Wallace nearly five days to get a preliminary hearing, which is longer than the 48 hour standard under which a prisoner might request release under habeus corpus aka “the great writ” which may be issued in common law anytime the state is holding a person or until conviction in a Federal court.
In Nebraska part of the habeus corpus law will be on the 2016 election ballot this November too.
“That’s not a weapon,” screamed Wallace and the deputy replied, “Well, I don’t know that, until you set it down. We could’ve taken care of this all then.”
“Jesus Crist why did you have to pull fucking a gun on me?” asked Wallace, and the deputy responded, “Well, I told you to put the gun case down.”
Then Douglas County deputies proceeded to cuff Wallace, inducing numerous new cursing and discussion, and told him that they were charging him with “Obstruction” for failing to put the gun case down. Municipal ordinance Sec. 20-21. in Omaha reads:
Obstructing law enforcement officer or firefighter
It shall be unlawful for any person to purposefully or knowingly do any act, refuse to do any act, or to commit an act of omission with the intent to obstruct or interfere with any law enforcement officer or firefighter performing an official duty.
From the video record – which all happens in the first three minutes – you can see that Wallace did obey the command to allow himself to be placed under arrest once it was properly issued.
The deputy who pointed the gun at Wallace was half-right in saying that it could’ve all been avoided, but he forgot to mention who should be blamed, which is the officer himself, who armed with probable cause, should’ve demanded that Wallace allow himself to be placed under arrest, and THEN drop the case, to then conduct his investigation.
But under the circumstances, the deputy’s conduct was not unreasonable, it merely could’ve been handled slightly better, up until the point that he finished the arrest and hit Wallace with criminal charges, which he just did not have to do.
A big lesson here is that what’s legal and what’s wise are two different things. Police officers can do a lot of things wrong and still be exonerated by a court, and Wallace is very lucky that this deputy was willing to keep him alive, rather than standing off at a distance with his gun drawn and making the streets of Omaha run unnecessarily red with activist blood.
This isn’t the first institutional failure in handling charges against Wallace in Omaha, even this month.
Wallace was recently held without hearing for 30 days until other minor charges were dropped, so this seems to be a major problem in the Nebraska justice system. It’s also expensive for taxpayers to keep paying to jail people for minor offenses, when having rapid -constitutionally required anyways – hearings might dispose of these kinds of dubious claims by police against citizens.
Failing to read Miranda Rights, and then pursuing a conviction without legal counsel is wrong, and may indicate a broader institutional failure that Wallace can spend his time in the clink contemplating how to fight back.
On that score, maybe Wallace’s story will pay off in the end, if he can contact others who’ve experienced similarly unjust trials.
But please, don’t try this at home.
Ed. Note: The below paragraphs were part of the original story, but have been removed after determining the facts in an interview with City of Omaha Interim City Attorney Tom Mumgaard confirming that a municipal ordinance was properly leveled against Mr. Wallace:
The Nebraska deputy was wrong to file an obstructing a peace officer charges, which is why we call the charge contempt of cop because according to the state’s website containing the statute, there’s a precedent at the bottom which reads: “There must be some sort of affirmative physical act, or threat thereof, for a violation of this section to occur. State v. Owen, 7 Neb. App. 153, 580 N.W.2d 566 (1998).” The statute itself reads:
(1) A person commits the offense of obstructing a peace officer, when, by using or threatening to use violence, force, physical interference, or obstacle, he or she intentionally obstructs, impairs, or hinders (a) the enforcement of the penal law or the preservation of the peace by a peace officer or judge acting under color of his or her official authority
It’s also doubtful if the arresting officer would be allowed to allege a municipal ordinance violation, then turn around and arrest Wallace under state statute since his probable cause emanated from municipal authority, giving ripe grounds for a challenge on proper venue under Nebraska’s Writ of Habeus Corpus that the Judgement should be void.
Unless Wallace reached for a gun, which isn’t the case here, mere non-compliance with an order to put down the case probably isn’t sufficient to merit this kind of charge.
Holding Wallace for the offense for over two days without hearing is completely wrong.
Removed: “sloppy arrests, unlawful incarcerations and” from final paragraph