if the relevant Court decisions say that a person's speech is protected by the first amendment is it reasonable to arrest that person for that speech yeah okay are you planning to testify a trial in this case yes okay I think that's it what would make it reasonable to arrest a person for cursing it a passing motorist displays of offensive and vulgar signs to passer by refusing to speak with officers when they had Reon suspicion to interview him has an individual committed a crime if they don't speak with officers no has an individual committed a crime if they hold up signs with curse words on them not that alone are you saying that although cursing at a passing motorist holding up signs with curse words and refusing to talk to police individually are not enough for an arrest collectively they are I think they had probable calls for an arrest why failure the ID didn't we establish earlier that failure to ID before an arrest is not illegal sir do you understand that the testimony that you give today has the same force and effect as if you were before the judge and jury I do would you please raise your right hand to be sworn do you somly swear the testimony you're about to give will be the truth the whole truth and nothing but the truth so help you God I do thank you all right it's a pleasure to talk with you Dr Stone good to meet you thank you we can get started um where are you from well I grew up in New Boston just down the road so just moved back home when I retired year and a half ago oh very nice very nice I'm from Dallas uh where did you go to high school I went to high school in New Boston New Boston high school and where'd you go to undergrad College uh undergrad was lerno University um did you graduate there I did what was your degree in uh Bachelor's in business management okay and did that have any relation to law enforcement or constitutional rights no okay and then uh what field is your doctorate in uh in public affairs and where did you get that from University Texas at Dallas could you tell me a little bit about uh the topics that that covers yes basically it's government uh but everything from research methodology to uh the Constitution and uh law you know from one Spectrum to the other but it's mainly geared toward uh people that are going to work in governments specifically city managers or people that are going to teach government and what did they teach you about people's constitutional rights well that that um I've clearly before I went to college I understood people's constitutional rights is that they're protected and we hold them up U and follow the Constitution and and protect citizens rights as part of our duties as peace officers too and how'd you get into law enforcement well um started when I was barely 21 years old I had taken a test in Tyler and uh I had a call to go to Athens PD and started at Athens PD as a police officer in 1974 I see so you were already a police officer when you got your doctor yes yes I've been a police officer for a long time I just continue to go to school so do you think uh okay okay oh so what departments have you worked as a police officer and uh started in Athens Texas in 74 uh Greenville police department in December of 75 uh and then Colin County Sheriff's Office in August of 85 um and then I've been a reserve also at at um Wise County sheriff's office when I retired and now I'm a full-time uh deputy sheriff or Lieutenant at Buie County Sheriff's Office here in t count did you have a favorite uh Department um well I stayed at Colin County 36 years so I guess that would have to be my favorite but enjoyed working undercover as well too with DEA I see uh and have you worked in a public policing agency yes can tell me that well um you're talking about a city agencies as opposed to accounting well your your exert report we can go ahead and I'd like to establish um Dr Stone's expert report as exhibit one no objection here we go can you see that yes so I'm asking about this first sentence right here uh you had 15 years in senior leadership of a public policing agency and so I I was hoping you could just tell me a little bit about that what that involved oh okay that's when I was uh at the Colin County Sheriff's Office and uh I served as a major over operations uh an assistant chief deputy and Chief Deputy for Colin County Sheriff's Office and so the work that you've done over the years have you investigated officers for alleged misconduct yes part of my duties um as a sergeant was uh over the internal affairs background investigations and and training yes uh did you ever have any did you ever see any allegations of officers violating anyone's constitutional rights um yes did you could you tell me if you ever if any of those cases ever involved uh an arrest based on an arrest involving a violation of someone's right to free speech no no not in the officer misconduct no could you tell me what some of those cases did involve uh use of force um primarily the majority of them would be use of force uh unprofessional conduct uh conduct Unbecoming an officer I see and in all the work that you've done have you ever helped an organization or an agency um develop general orders yes that was part my duties while I was at Colin County Sheriff's Office so let's use the Colin County Sheriff's Office as an example could you describe for me the process by which that office would develop those general orders uh yes most of the time we would um look at other general orders that are provided by uh International associ associations of chiefs of police the national Sheriff's Association and um look at uh look at those procedures and and choose the ones that were more precise and exact and uh base our policies and procedures upon what had already been established by those organizations okay your report indicates that in preparing your opinions in the report you reviewed the general order 7.1 from the City Police Department is that correct I do okay I'd like to present that general order 7.1 as exhibit two no objection and on article five paragraph a here it indicates that officers will at all times act to preserve and protect the rights of all persons what does that mean to you it just exactly what it says that it's part of like I mentioned before it's part of our duties and responsibilities to protect citizens rights do you think that if an officer acts in compliance with this general order that that officer has acted reasonably do I think he's acted reasonably do you think that these general orders are a guide for reasonable behavior of oh yes without a doubt do you think that the word rights as used here refers to constitutional rights I do okay could you tell me a little bit about the certifications that you have let's see I I've got a quite a list of them but I'll try to go from memory um I'm a master peace officer I'm also a certified peace officer instructor uh I'm a graduate of um Bill Blackwood Law Enforcement Academy which is an extensive Academy as well as the 189th session of the FBI National Academy and quanico Virginia also graduated uh from the Naval Postgraduate School in Monteray California and uh just attended a lot of other those types of training in schools what is a masterpiece officer the Masterpiece officer designated is designation is really the highest level of training experience and education uh you're designated with a certain number of each one of those a masterpiece officer and could you tell me about your experience as a peace officer instructor what did that involve uh I taught at the um Colin County Law Enforcement Academy U subjects interrest search and seizure um use of force um a broad really a broad range over 10 years uh with the Colin County Law Enforcement Academy and then for 14 years I was an adjunct instructor at University of Texas at Dallas and taught various courses in homeland security uh leadership and law enforcement um different courses along that line you mentioned teaching about arrests uh did you teach classes about how to arrest people um in in the academy level that would have been in to date myself that would have been from like 1990 to 2000 U I taught classes in use of oo resin capsicum uh but um not the ACT actual physical arrest of a person but the the facts surrounding the the arrest and and different aspects of an arrest yes did you teach about the way to arrest a person without violating their rights well that was always a consideration uh about their rights um you know we have a a duty to protect the citizens as well as the people that were arresting so uh you know I'm sure that would have been part of my instruction and conversation did you ever teach about the right of a person to speak freely you know I can't than specifically but I would say that that would have been part of my conversation or instruction so when you taught these classes did you use any written materials um I used the material that was provided by the Colin County Law Enforcement Academy when I taught there so you know that was from 1990 to 2000 so that yes there was some material that were provided that I taught from do I understand it right that they were giving you materials that you would then teach to other people yes you did not generate the materials no okay okay did you ever use PowerPoint presentations anything like that not in 1990 but uh later on at the University I I did use PowerPoint presentations uh especially in my leadership classes and things like that but um yes would do you have any written teaching materials that are related to the correct way to arrest a person no I'm sorry I do do not do you have any teaching materials related to People's First Amendment rights I do not so you mentioned earlier the International Association of chiefs of police is that a reliable authority of guidance it's a very well-respected authority of guidance and especially on policies and procedures um they're they're pretty much like I would say the gold standard and so would you expect that an officer acting in accordance with the International Association of chiefs of police's guidance is acting reasonably yes did you know that that organization provides policy guidance for the arrests of suspects yes uh I mean I'm not aware specifically of the language but I know that's part of what they provide I'd like to introduce exhibit three as the guidance from the International Association of chiefs of police the it's a presentation that's titled arrests and investigatory stops Daniel will have a hearsay objection at some point but other than that no objection okay so here it it guides that in when making an arrest no arrest shall be made at a time or in a manner contrary to any Express limitations included in a warrant or in a manner or at a time or place prohibited by relevant Court decisions if the relevant Court decisions say that a person's speech is protected by the first amendment is it reasonable to arrest that person for that speech objection for you can answer yeah um yes there are times and that it would be reasonable to arrest in a matter of issue of speech are you saying that it's reasonable to arrest a person for protected speech objection for prot not for protected speech but outside the guidelines of of U or disorderly conduct of fighting words is not protected speech for example you think that the United States Supreme Court is an authoritative authoritative source of the law in this country I do what about the Texas Supreme Court I do what about the Texas Courts of appeals yes are these courts authorities on individuals rights in this country yes is it reasonable for a police officer to violate the rights of an individual no so do you agree that if the courts say that an action violates an individual's constitutional rights then that action is unreasonable objection far that that action is what I'm sorry I'm asking you if the courts have said that an action is in violation of an individual's constitutional rights is it reasonable for an officer to take that action objection for well I would say that you know all of those are depend on the circumstances but if if there is a specific ruling about language I would say it it would be unreasonable for an officer to do that if there are no other variables associated with the action are you saying that it's reasonable for an officer to sometimes arrest a person in violation of their constitutional rights no I'm certainly not so it's never all right for an officer to arrest a person in violation of their constitutional rights objection form I would agree with that are you familiar with what the United States Supreme Court has said about the acceptable restrictions that a state can put on a person's First Amendment rights to speech I haven't reviewed that I'm not familiar with the the latest uh ruling well there's a there's a case from from 1971 called Co Envy California that says that states can ban fighting words and that's words that are inherently likely to provoke a violent reaction are you familiar with that case objection F I'm not actually familiar with the language but I am I have looked at previous uh Supreme Court rulings about fighting words yes this case was from 1971 are you familiar with it no if the law says that speech is protected unless it's likely to provoke a violent reaction is it reasonable to arrest that person for that speech can you can you state the question one more time please my apologies if the law says that speech is protected unless it's likely to provoke a violent reaction is it reasonable to arrest a person if their speech didn't provoke a violent reaction objection for yeah I would say if if it's uh yes I would agree with with that so speech needs to provoke a violent reaction to be fighting words I I don't think uh no I would disagree with that it's to um the potential well it doesn't have to provoke it's the potential to Pro provoke not that provocation was immediate but circumstances could rise to that level okay there's another case from 1988 or 1989 excuse me called Texas V Johnson are you familiar with that case no sir I'm not it says that the government may not prohibit the verbal or nonverbal expression of an idea merely because the society finds the idea offensive or disagreeable do you think it's reasonable to arrest a person solely because a member of society finds that speech offensive objection for [Music] uh not in every circumstance no do you think it's reasonable in some circumstances to arrest a person for their speech solely because a member of that Society thought that speech was offensive objection [Music] form okay ask the question one more time so I can focus on it a little better I'll ask you a different way if I go outside and scream [ __ ] and the somebody calls the police and says they were offended by that statement should I be arrested objection form no uh especially if you stepped outside of your home and know that certainly not so you're saying that if I'm outside my home and I shout a curse word I should not be arrested even if somebody found it offensive objection form we at your residence I would say no to that should people in ta be arrested for saying speech that is merely offensive objection form not merely offensive no what else is needed um speech that rises to a level that would um Insight or potentially cifi or issue related to the manner of speech and how it was directed so if somebody shouts curse words outside and it could incite a breach of the peace that person should be arrested is that right objection form I would say there there should be some other factors included uded in this but I would certainly think that it would it would go beyond to a probable cause for an arrest if I run outside and scream [ __ ] the draft should I be arrested no if I say [ __ ] this city [ __ ] the government [ __ ] everything should I be arrested objection form well um the matter is is potentially where where you are and the examples you have given me or outside and so I would say that in those circumstances there would be uh really no probable cause for you to be arrested even if there are people circumstances pardon what if there are people around everywhere objection F well we've gone from you being outside of your house and and uh of course that's that's the different circumstances I'm asking you if you go outside your house in a public place with a lot of people around and you shout [ __ ] this city [ __ ] everything [ __ ] the government should I arrested should you be arrested for that objection form well I would say um we have a a duty to preserve the Peace So if it it would it it would have to be more than just a conversation in a can an officer would have to make that decision based on the reaction and sometimes we take action to protect the actor as much as we do the other citizens too so there would be circumstances where you would take somebody in custody uh to avoid inciting a right or having that person potentially be attacked if I go to a high school and I yell [ __ ] the city [ __ ] the government [ __ ] everything and all the children at this High School hear it and someone calls and complains to the police department should I be arrested objection far well even in our schools today I would say that you most likely would yes be protect arrested in a public school shouting and cursing with their uh kids more than likely you would definitely be arrested at that school what if I was a student if what if I were ALS also a high school student there objection for well my experience with high school students I would say that they're going to be they potentially could be but of course they uh at 17 years of age as an adult in Texas but most in most cases dealing with issues in the school they're going to be handled by the school district hopefully and not by the local law enforcement I know but I didn't ask you who was going to handle the oh okay I would say uh it again just in a can uh with with h this circumstance then there's no uh exercise of discretion to to see what the reaction is with the crowd what the what the threat may be if you're um if no action is taken are you saying that the reaction of the crowd is a factor in determining whether it's reasonable to arrest well I would say certainly in fighting words that's a that's a premise is to avoid inciting a riot and having the a disturbance that would arise out of uh someone who's exercising their right but still crossing over into uh you know inciting uh breach of the peace but didn't you say earlier that the question is whether a a speech is likely to cause a violent reaction not whether a violent reaction actually occurred uh yes yes I did say that and that's that's uh that is the point but I was trying to answer your particular example that you were giving me at the time now are you familiar with a case from 2021 called Mahoney area school districts versus BL it's a US Supreme Court decision no I'm not do you think that a person should be arrested if they are expressing criticism with bad words objection form not necessarily no even if they say [ __ ] repeatedly objection four just in words alone um the the words alone um I understand where you're going with your questions but it's not a matter of just the words well what's it a matter of is if it if it will uh cause a breach of the peace and have you ever testified as an expert before I have how many times in the last 10 years probably none in the last 10 years um before that I've given depositions and testified in federal court some years ago have you have you ever written an expert report related to litigation that's related to First Amendment rights no have you ever written an expert report about your opinion about whether an arrest was legal objection form I don't know I'm going U I'm going back a few years thinking about that I'm not certain about that have you ever written an expert report regarding whether probable cause existed yes yes I in this in this report I wrote about that is this the only report where you've ever written that written about that no I have some cases that are ongoing that I've written with that opinion that are still awaiting uh hearings and trials I'd like to go off the record for a minute okay Joe Mr Tulie are you in agreement that's fine yes thanks ch we're going off the Record at 3:3 p.m. Daniel if you need to visit for me I need recording in progress recording stopped recording in progress back on the record at 3:12 p.m. Dr Stone have you ever written an expert report concerning the loud obscene or disruptive behavior of a person [Music] no have you ever written an expert report concerning uh disorderly conduct objection fall yeah no not that I recall so this is the first time that you've ever written an opinion in a lawsuit related to disorderly conduct is that right gosh I'd have to it's definitely the first time one related to Speech but I mean I I started doing this in ' 92 so but you are not aware of having ever written an expert report that includes an opinion about disorderly conduct or about disorderly conduct um no you're not aware of any expert reports that you've written about that topic no form are you aware of any expert reports that you've written regarding resisting arrest I'm certain that there's probably been cases that included factors of resisting arrest related to use of force um but I I can't recall exactly have you written any reports any expert reports involving a person resisting arrest objection for um I would say not in the last 10 years I haven't uh I would have to yeah not in the last 10 years but I'm not you know it's going back 30 years um I don't recall whether I have or have so you're not aware of the existence of any reports that you've written involving resisting arrest is that right objection for not not that I can recall now so you can't remember ever having written an expert report involving resisting arrest is that right objection F yeah um um you know I thinking about it I I would have to think that that I have but I just cannot recall anything that was specifically related to um matters that were related to use of force from resisting arrest I'm sure that at some point in time in the last 30 years I've probably written something about that do you remember writing any expert reports related to disorderly conduct I don't no [Music] one more quick break is that all right Joe sure no problem thanks off the Record at 3:17 p.m. recording stopped recording in progress back on the record at 3:19 p.m. okay Dr Stone could you tell me about how does somebody become a police officer well um most most jurisdictions require some type of testing entrance exam and uh not all but most of them have an entrance exam and uh once you're hired uh now you would U go to an academy and get the training and then uh after you successfully complete your training you would go to uh an fto a field training officer and actually have hands-on experience where someone's observing you uh in a working environment and instructing you and directing you in methods and tactics well let's talk about the academy what do they teach there generally uh um well everything from the penal code to code of criminal procedure um and uh as well as the traffic code and then U most agencies are also F focused on um policies and procedures or something specificy include uh so they're getting a a good uh idea of what's expected from the Department as well as you know regarding policies and procedure uh driving how to use a weapon how to retain a weapon and all the things that we do um does the academy teach about constitutional rights yes I think every Academy would include something on constitutional rights what do they teach people in the academy about constitutional rights well you know I'm keep in mind I I went to the academy in 1975 so um The Academy that I taught in were specialized classes usually not in general classes uh but um I would think they would teach obviously the most critical one would be the fourth amendment and um First Amendment due process the 14th Amendment um so and and I'm I'm sure they vary depending on where they are in regarding the Fourth Amendment uh do they teach how to legally arrest people I would think so when you've taught people about arrests have you taught people how to legally arrest people um you know of course the last 14 years have been in a university environment and then I'd have to go back 23 years to uh even or longer go uh 33 years to to come up with you know an idea about if I had but U most of the classes I taught at the academ level which is more likely where I would teach would be um specialized classes uh tactical operations weapon retention Fitness but uh I don't I don't know that I I don't remember if I taught at the Academy those particular classes when does an officer learn how to arrest someone legally how they learn to arrest someone legally when do they learn that when do they learn that um well I would think they would learn it in the academy and then have it reinforced in field training what are the rules about arresting a person what's required to arrest someone well beginning with um reasonable suspicion um which is required for you to stop someone um and then the next level would be U probable cause more than Reasonable Suspicion of to probable cause to believe that a crime has been committed and uh and it's based on what an officer sees the circumstances so do you need probable cause to arrest someone yes do you need probable cause to search someone no you do not so are you saying that it's reasonable to search someone without probable cost objection absolutely yes reasonable suspicion that a person has committed a crime gives you the right to search someone so if an officer searches someone without probable cause that's reasonable objection for that that is not no that's not what I said no is it reasonable for an officer to search someone without probable cause objection four yes what is probable cause more than mere suspicion that would lead an officer to believe that a crime may have been committed is it reasonable to arrest someone without probable cause no probable cause is required to arrest someone tell me about TCO what is that Texas commission on law enforcement standards it's a the governing state agency that governs peace officer license and training and requirements do they issue licenses to police officers they do yes and do they regulate the continuing education requirements of police officers their only regulation is uh there are certain required courses and then um 40 hours of training every two years what are those required courses usually legislative updates are required but it depends on the certification level of the officer if for in my example uh there I have no mandated classes because I have a PE a masterpiece officer [Music] license how does an officer lose their license um usually it originates with the um the agency and uh Internal Affairs investigation and termination of that officer for misconduct is usually how that unfolds are officers required to take continuing education classes related to First Amendment rights uh you know I'm not anymore I'm not certain for someone that's just basic peace officer or intermediate peace officer or Advanced peace officer but for a master peace officer I'm not required to take U mandated to take classes for first first amendment so you don't know if officers other than Masterpiece officers are required to take first amendment contining education classes is that right well are you talking about continuing continuing education yes yeah I don't know about other officers with other certifications they do have mandated classes but obviously I've had a masterpiece officer a long time so I don't I'm not [Music] certain is it reasonable for an officer not to receive training for First Amendment rights after they get their license objection form gosh I don't um that's so broad I'm not sure how to answer that but I I would just answer it by saying I think that um tcole does a good job on mandated classes so they're they're the agency that issues our license so they would be the one setting that requirement should officers study First Amendment rights after they become an active officer objection for I think they should be familiar with First Amendment rights if an officer doesn't keep up with First Amendment rights after they become an active duty officer is that unreasonable objection for well I would just answer that by saying that we have a Regulatory Commission that oversees that training and you're asking a hypothetical question about something that may exist there may be training I'm just saying that I'm not certain uh what they require for people I understand I'm asking you about the reasonableness of an officer's actions is it unreasonable for an officer to avoid taking First Amendment training after they're an active officer objection for yeah I would just say that um I I would say that precedent is set again like I said by the required training of the Regulatory Commission that governs peace officer license so are you saying that the minimum requirements that tcole places off on an officer dictate what's reasonable objection for I don't just um yeah so ask that question again because I I've been thinking about it and I think I can give you a yes or no answer for that is it reasonable for an officer to study the First Amendment after they become an active duty officer for is it unreasonable for an officer to study First Amendment after they become a peace off is it reasonable I asked you if it's reasonable if it's reasonable I would say that it's that that would be reasonable for them to learn about any of our constitutional rights that's that's what we do in continuing education is it unreasonable not to study First Amendment rights after becoming active objection form no the term unreasonable May mean something diff different to you but I would say no it's not unreasonable not to study First Amendment rights by a peace officer on their unless it's designated by their Department uh by their training or abouto have you ever served as an expert for a plaintiff filing suit against a government official oh um no I haven't so can you give me an estimate of how many times you've served as an expert in litigation you know that would be a guess but I'm going to say somewhere between 40 and 50 times just to guess over 30 years so you've served as an expert 40 or 50 times over 30 years and every one of those times you were an expert for the defense is that right yes that's correct do you think that you can give unbiased opinions as an expert yes I do even though you've never served as an expert for a plaintiff ever yes you think officers should study how to legally arrest people after becoming active officer I would have the same opinion if that for that question that I do the studying the first amendment I think um I think we should all strive to to learn and uh but if you know we're so specialize that I wouldn't think it would be unreasonable they didn't so are you saying that it's reasonable if an officer never studies anything beyond the minimum requirements objection for ask that again I apologize these these questions are similar I'm just want to make sure I understand what you're asking is it reasonable for an officer to engage in the minimum possible study after becoming an active officer same objection I would say as far as the law is concerned it's reasonable I always strive to learn and study more but is it reasonable to you to study the minimum possible requirements as a police officer objection form that's not what I've done so the answer is no so are you saying that if an officer studies the minimum possible material after becoming active that's unreasonable objection from well you asked the question for myself but and then you've asked that before about an officer if it's unreasonable am I respon response was is that uh no it's not unreasonable well I'm not asking about yourself I'm asking about your opinion about the reasonable behavior of other officers okay I I I understood that and my answer is no I don't think it's unreasonable if they didn't continue to study Beyond what's required do you think that an officer that hasn't studied how to make a legal arrest for 15 years can make a legal arrest absolutely far yes do you think it is it is it reasonable that an [Music] officer could remember an individual's First Amendment rights if they haven't studied those rights in 15 years I could only speculate on that question but um we're always better off if we study uh whether the matter of reasonable or unreasonable that's that's so ambiguous I I don't even really understand but if you know I um we have these things structured within departments and and uh Teo to govern that and they seem reasonable I ask you this because earlier you said that you can't remember if you wrote any expert reports related to resisting arrest and the use of force within the last 10 years so it seems that you've established that 10 years is kind of a reasonable limit of memory is that true objection no that's I'm sorry that's not true so are you saying are you saying it's unreasonable that you can't remember if you wrote an expert report about resisting arrest past 10 the last 10 years objection form well the reason I use that time frame is I just started back working as an expert when I retired so um I just yeah I think it's reasonable are you saying that if a person hasn't worked with something in over 10 years it's reasonable they couldn't remember it objection form a lot of variables there I would say um no it wouldn't be unreasonable if they couldn't remember it okay I'd like to turn your attention back to your report uh lists here uh a series of materials that you reviewed in creating your opinions and conclusions in the report I notice here that it doesn't say that you reviewed any actual laws is that right objection for well I think I included a language about um think I included language about disorderly conduct and uh resisting arrest that's included in my report is it yes pardon me let me pull up the screen share yes you cite the language for the for penal code section 42.1 and 38.3 but but I'm asking you did you review these statutes when preparing the opinions in your report yes I reviewed these statutes when yes did you go ahead sorry not I do you did you review any other law in preparing your report those two and then um not when repairing my not when preparing my report but I did look at some different case laws can you tell me what that case law was well the first one I looked at was New Hampshire 1942 Supreme Court decision in the chaplinsky and New Hampshire 3115 us 5568 um I think there's another one if you can get bear with me a second I'll see if I can of course I got to minimize uh can you minimize yours just where I can go and look at um something I have on my computer here Mr Alan I'm not aware that what I'm doing influences what you can minimize okay okay all right well you have the you you're sharing your screen and I can't get to other documents on my computer it shouldn't be locking you out if you if you just minimize okay now I got it so the other one is uh that I looked at was Duran versus fur and uh let's see there we go and Duran versus for fur Supermarket April 4th 1996 and you said earlier that the United States Supreme Court and the Texas Courts establish what the law is is that right objection for that they establish what the law is no I don't think that's correct I didn't so are you saying that United States Supreme Court decisions are not the law absolutely not I said just the opposite are United States Supreme Court's decisions the law in this country objection F yeah they're through appeals they set preceden in our laws in this country and that applies to the Texas Courts as well um yes do you think that an officer would know the law if he doesn't keep up with the court cases objection for well most agencies provide updat especially on legislation that's significant so the agencies that I've worked at have when uh Supreme Court has made decisions has provided that information to the officers that were law in law enforcement and as far as I know well definitely in Colin County Sheriff's Office last 36 years of my career is it unreasonable for an officer to be unaware of the law as established by the courts objection fir well I would say yes when we're out there doing our job that there's a level of of unreasonableness of not knowing or taking the time to learn but um if would an officer know the law if he doesn't study court cases objection for only in the manner that I previously mentioned to you and explained where agencies provide Supreme Court decisions to their officers from review does an officer need to study court cases to know the law objection form no but earlier you said that the courts established the law in this country isn't that right yes so if an officer doesn't know what those courts said how can they know the law by the means that I explained to you a couple of times and that's where an agency provides those U decisions to the officers for their review and part of their training normally and do those do those materials include cases from before the officer became active objection Thor hopefully before they become active they got it in the academy if but this is followup my experience they that I work for they provided Supreme Court rulings that were sign significant to officers doing their job but you're talking about new Supreme Court rulings pardon you're talking about new Supreme Court rulings right yes I am so when an officer becomes first becomes active would that officer know the law if they've not been trained in Court decisions objection for if if they didn't have the training that I've already mentioned before uh which would include um Supreme Court decisions and things that affect their job um which is you know I understand to be the standard so the idea is that they get it in the academy and after they get a Academy they get updates and I'm and again I'm not familiar with the updates for basic intermediate Advanced what what they get I'm I'm not directly involved in that anymore Masterpiece also but if an officer did not keep up with Court decisions after he became active would he know the law objections form the only way that they would know the law if they get the updates from their Agency on updates from Supreme Court decisions but if they didn't read those updates would they know the law objection form probably I wouldn't assume that they would know the law but normally they have to sign the document saying that they received it and read it is a normal practice in law enforcement agencies okay I'd like to turn your attention back to your reports um in your report you list facts starting so let's say here for example Sergeant Dial's contact with Winston nolles was to determine if he was displaying signs as ler an offensive language during officer Clark's officer Clark's contact with Mr nolles Mr nlls turned away from Officer Clark and stated what the [ __ ] to a citizen stopped at the intersection near Winston noll's location video audio evidence shows Mr n's turning toward a truck with the window rolled down and stated what the [ __ ] this is a recitation of the facts is that correct um let's see help me out this where that is in paragraph one under your opinions and concl okay yes that's um what I had seen in the video and then the yes could you repeat that please your audio became a little bit mod oh I'm sorry uh yes this is what I determined from the video as well as the officer's report so it appears that everything written in paragraph one or let me rephrase paragraph one is primarily a recitation of facts it concludes with Sergeant dial advised Kelly stone that he was aware of Mr n's use of vulgar language to a person stopped at the intersection prior to his arrival on the scene so the facts end there then the final sentence of this paragraph is a reasonable officer in the shoes of Sergeant dial with similar training education and experience would believe that there was probable cause to arrest Mr NES for disorderly conduct that's your opinion is that right well one thing that you said that I'm confused about was that that he explained to Kelly Stone you lost me on that um what paragraph were you in when you when you read oh I'm in paragraph one that's how it's written okay okay you're talking about when I interviewed uh Sergeant D correct okay uh on November 22nd Kelly Stone conducted a telephone interview with Sergeant D to determine if he was aware that after he arrived at the scene of the arrest Mr noes had made statements and uh the person stopped at the intersection yes and he had told me that he was advised sergeant dial advised me when I was interviewing him that he was aware Mr NOS use vulgar language to a person stopped at the intersection prior to his arrival at the scene yes correct and the following sentence is your opinion about Dial's reasonable belief that there was probable cause to arrest okay yes a reasonable officer in the shoes of Sergeant D with similar training education experience would believe that there was probable cause to arrest Mr noes for disorderly conduct yes so this is an example of uh this this same Dynamic within this paragraph happens a few other times in the report it goes directly from fact to opinion is there a methodology that you employed to form that opinion the reasonable standard did you form your opinions by applying any principles or methods to the facts of this case number one that there was reason Reasonable Suspicion to begin with number two all the other U facts that were presented and what I observed in in video led me to the opinion that there was probable cause to arrest Mr Noles for disorderly content right but are you saying that you read the facts and immediately formed the opinion absolutely not absolutely not so what happened many well I I watch the videos and can see for myself what's transpiring after you watch the video after you watch the videos talked to dial and gathered all of the facts to inform [Music] yourself did you do anything before you formed the opinion well I of course I looked at um the disorderly conduct and resisting arrest and and uh and found what applied actually in um in 4201 so that's the that's what I looked at so you're saying that you are you saying that you reviewed the case law as applied to the facts to form your opinion I reviewed the the statute itself and um I'm not sure I think I reviewed the case law at some point in time but I don't think it was before I wrote that sentence but you said earlier that the courts determine the law in this country objection for that's true they wrote I mean that's where the penal code comes from and this these particular statutes yes but if you didn't consider the case law ining your opinion was your opinion based on the law well it was based on fighting words and inciting um violence or a right so yes I I did consider that did you consider the case law informing your opinions in this expert report what I was familiar with yes uh and understand uh inide inciting a breach of the peace uh something I've been trained in U we all get that training so that's that's from case law so if the case law if the case law showed let me let me rephrase what case law did you consider specifically objection far ask and answered yeah um again I'm familiar with uh fighting words and and that case law and how U circumstances can get out of control in a situation like that so what is disorderly conduct to you in Texas well it's just looking at the statute um person commits an offense if he intentionally annoyingly number one uses abusive indecent profane or V or language in a public place and The Language by its very utterance tends to in sight an immediate breach of the Peace is that the entire law of disorderly conduct I've got it here somewhere let a I'm asking you if you think it's possible to understand the law regarding disorderly conduct in Texas without reviewing case law objection far yeah I would say based on your training you don't have to review case law every day to understand the law would you understand the law if a recent court decision had been issued that was not part of your training objection for well I certainly wouldn't have that recent decision if but so that's usually argued in courts you just recited the disorderly conduct statute we can review it here in your report I'd like you to focus on this Clause pardon me highlight it and The Language by its very utterance tends to incite and immediate breach of the peace what does that mean to you well it number one it be be uh really is dependent on location earlier we were having discussions about in your front yard but just exactly what it says that that um that it could rise to an occasion where there's violence a or other consequences what Winston nll said that day on his signs and anything he said verbally that couldn't cause actual or threatened violence could it objection for him well I think it could he's standing beside the road where on a day where cars are passing by stopping at a stop sign so the answer to that is yes it could would it change your opinion if there were case law in Texas that a speaker needs to have more contact with the Observer than one motorist passing by objection form there's nothing prohibit a motorist from stopping so he was he was three feet from the edge of the road if there was case law in Texas saying that it's not enough to say a curse word at a motorist passing by would you agree that a subsequent arrest was unreasonable if that's what happened objection foror [Music] yeah I'm just asking you hypothetical yeah uh of course here here um the issue is is that once there's an arrest there's a a need for followup and done by the prosecution so U is normally what takes place in talking to Witnesses and so forth so I know in this case there's so I still believe that um a reasonable ler in U course and Clark Shoes is the one actually that did the rest would have arrested Mr NOS what did Mr nll say that threatened violence objection four well it's in the report he turned to someone and stopped at ass salstein with their window roll down and put his arms out to the side and said what the f so you're saying that if somebody says what the f to somebody in a car with their window rolled down that could threaten violence is that right well that that with the signs and people calling in and complaining to the police department stopping police officers uh where they're where they were yes so you're saying that society's offense to the statements determines whether the conduct was disorderly is that right objection for no but you just said that it's it that a factor is whether people are complaining what I said was is that there were numerous peoples stopping police officers and calling in and complaining and that was a factor in determining whether there was threaten violence is that right yes I think the potential is there for that and if Texas Court say that an immediate breach of the peace contemplates a face-to-face encounter or at least something more than the impersonal Brief Encounter of a passing motorist would that change your opinion objection form at this point um what I know and understand about the fting words doctrine that would not change my opinion so if I go outside and yell [ __ ] at somebody that's driving by in a car with their window rolled down somebody calls the police to complain should I be arrested objection [Music] for no why objection for um going out side that you're you're providing a broad uh description and circumstances that I I I would just say no based on the limited amount of that you shouldn't be arrested the limited amount of information that have you given me if I stand on the same Corner that Winston nolles stood on the day that he was arrested with the same amount of traffic and I yell [ __ ] at a passing motorist with their window rolled down should I be arrested objection form I'm not sure you should be arrested if that's all that was taking place what else needs that person's probably well multiple people stopping and calling in the police and complaining about signs with vulgar language while they're driving down the road so the difference is that people complained this is that right well I say the yeah that's that's part of it Daniel can we take a quick break yeah just shortly sure off the Record at 407m back on back on the record at 4:16 PM so coming back to what we were talking about if I stand on that same corner on the same day that Winston nolles was there and I yell [ __ ] this country [ __ ] the draft [ __ ] everything should I be arrested objection for No One complains no one uh is offended um then you shouldn't be arrested what if some what if one person complains objection form one person complains I think it's appropriate for the officer to U contact that person and find out what's going on with the individual but not arrest has Reasonable Suspicion to contact that person should that person be arrested objection far I think it depends on what happens after he contacts that person what if nothing happens what if nothing else happens then I would say if nothing else happens and they feel confident that he's not going to carry his conduct any further then you know I would wouldn't think that that person would be arrested if that's all that happens so you're saying a person should be arrested because the police think that they're going to say curse words in the future object I didn't say that what I said if nothing else happens um refusing to identify themselves to explain talk to the officers uh carrying at another uh level is is a matter to consider as well too and where it is is a matter to consider does a suspect have have an obligation to identify themselves to officers yes when there's Reasonable Suspicion to stop and talk to an individual they have a they have to identify themselves can a person be arrested if they don't identify themselves to an officer objection for it would other circumstances um but if if a person is uncooperative and committing an offense and fails to identify uh that charge could be added yes is there a statute requiring an individual to identify themselves to police officers before an arrest no not that I'm aware of but didn't you just say that a person be arrested for not identifying themselves I don't think that's what I said I think uh what I was saying is the totality of those circumstances and the individual not cooperating to even where an officer can determine what's going on with that individual they um potential to cause more problems does an individual have an obligation to identify themselves to police officers objection for yes when they're being detained and and interviewed and questioned when there's Reasonable Suspicion but if somebody's just walking down the street minding their own business there's no nothing that requires U that that they identify themselves unless there's Reasonable Suspicion to believe a crime has been committed so if there's so are you saying that if there's Reasonable Suspicion and an officer asks somebody to identify themselves they are legally required to identify themselves yes the fa failure to ID is that based on a state statute I didn't filed that charge in longine time I'm not certain about that is are there common law crimes in Texas no so logically it must be based on a state statute right yeah must be based on a state statute but I don't know the statute and have you reviewed that statute reason recently no I haven't so just to be clear you don't know the statute on by yourself no I don't okay but you do know these other statutes right objection yeah yeah so ear you said that one of the factors in deciding whether or to arrest somebody for the speech that they say is the number of complaints that police receive is that right it wouldn't be just that alone but that would be part of it um especially passer by that are upset enough to stop and contact the law enforcement officer or call the police depart but didn't we say earlier that an essential element of breaching the peace is actual or threatened violence objection form I I don't remember saying that I said that that when the that it could the when it Could biting words could inight a breach of the peace if there was Texas case law that actual or threatened violence is an essential element of the breach of the peace should Winston nlls have been arrested that day objection form please okay ask that question again please I need to focus on what you're saying are you saying you haven't been focusing on what I'm saying before this no I just I just need to refocus on what you just said if Texas case law says that actual or threatened violence is an essential element of a breach of the peace was it reasonable to arrest Winston NS objection Thor if case law said that there had to be actual breach of the peace to arrest on disorderly conduct actual or threatened violence is an essential element of a breach of the Peace essal of the pace um in the case in in the actual case law says that or you if it does but you don't have to take me at my word just we'll speak hypothetically if there was such a case called Woods V state from 1948 that that reads actual or threatened violence is an essential element of a breach of the peace in Texas was it reasonable to arrest Winston nulls objection form yes I think it may still be appropriate to arrest [Music] um an officer has to use their discretion at a at an incident like this and that's that's a critical part an officer has to make use their own discretion and making these decisions does an officer have to know the law the officer needs to know the law yes so is it reasonable to say that an officer should have known if there was a 1948 Texas case saying actual or threatened violence is an essential element of a breach of the peace objection for yeah um instead of in likely it's likely to incite the immediate violence that it says it must have immediate violence for breach for a breach of the peace because US Supreme Court decision that I mentioned earlier um goes back to that doctrine that allows government to limit speech when it's likely to inight immediate violence and retaliation by recipients of the words was there any violence that day just Mr n's falling to the ground on his own behalf was there any other violence that day objection for no not that I'm aware of did any of the complainers say that they felt compelled to Violence by no's speech objection for no did any of them say that they were angry objection far I'm not sure about that what what was said to dispatchers or or to the officers to your knowledge there was no indication that any violence was actually threatened or created by N's statements no that's true um to my knowledge I don't know of any and let me ask you again if there were case law saying that a breach of the peace contemplates a face-to-face encounter or at least something more than the impersonal Brief Encounter of a passing motorist would it be reasonable to arrest wion knows that objection for well we're we're looking at hindsight uh issue of hindsight and U I still believe a reasonable officer would have detained or arrested Mr noes well it's not hindsight in the sense that this case is that said that is from 200 3 so doesn't an officer need to know the law objection form yes if a case said that a breach of the pece requires more than an impersonal brief encounter with a passing motorist then H and an officer arrests a person for that speech is that an illegal arrest objection form no I don't think it's an illegal arrest uh no is it reasonable to arrest a person if that person curses at a passing motorist objection for I don't think on that alone that decision was made but um but the alternative was to leave Mr nolles there so and is it reasonable come from that is it reasonable to arrest a person who curses at a passing motorist not that yeah what would make it reasonable to arrest a person for cursing at a passing motorist displays of offensive and vulgar signs to passor [Music] B refusing to speak with officers when they had Reasonable Suspicion to interview him has an individual committed a a crime if they don't speak with officers no only if they they're conducting an investigation and they believe a crime has been committed they have to have the identity of the person to continue has an individual committed a crime if they hold up signs with curse words on them not that [Music] alone are you saying that although cursing at a passing motorist holding up signs with curse words and refusing to talk to police individually are not enough for an arrest collectively they are objection Farm I think they had probable calls for an arrest why just the totality of those circumstances with uh people complaining the location um I mean you could have a individual that's a it the location has something to do with it too but location the number of people complaining the resistance to complying or identifying cursing a passer by while the officer standing right there trying to in interview him are any one of those things that you just listed a crime objection fir fa ID didn't we establish earlier that failure to ID before an arrest is not illegal objection form yeah I don't I don't know that that's true when when when an officer has reasonable suspicion to stop and talk to somebody so are you saying that the only crime that Winston nolles had committed before he was arrested was failure to ID no that's not what I'm saying was it legal for officer dial to hit those signs objection far when you have an individual holding something up in front of them and you're interviewing that person the officer has a right to uh search that person for weapons so taking the signs away was an appropriate action for the protection of that officer and the other officers there involved to make sure he didn't have a weapon do officers have the right to search anyone for weapons no sir why do they have the right without reasonable suspicion that that a crime has been committed it are the circumstances that an officer may stop and frisk and search someone for the protection of those officers so an officer can search somebody if they suspect that person of any crime is that right well if they have reasonable suspicion that a crime has been committed if I get P if I get pulled over for running a red light and the officer sees me do it did they have reasonable suspicion that I just ran that red light yes do they have the right to sear R the red light yes sir do they have the right to search me yes in your immediate reach of the vehicle they do for the protection of the officer and that is appaled by the Supreme Court if I'm holding some papers in my hand does an officer have the right to knock them out of my hand after he pulls me over objection for well how big are the papers are they 3x5 cards or big placards are you saying that the size of the signs Justified dial hitting those signs the view of noes being able to hide a weapon behind them he could remove those signs to search him and make sure he doesn't have a weapon are you saying that it was reasonable to think that noes was hiding a weapon in between the signs in his hands no could have it on his person not in his hands on his person so why was it reasonable to hit the signs so he could see if there was a weapon or any view of a weapon so are you saying that he had the right to hit the signs yes I am he had the right to hit the signs because he was looking for a weapon that was not in his hands yes and that was reasonable to do yes to your to your knowledge when officers are conducting searches do they always slap things out of your hands objection fir in that situation it was reasonable why couldn't they search him for weapons without knocking the signs out of his hands objection for it was uncooperative he wouldn't even show him the signs so would it have been would it have been reasonable to ask him to hand over the signs they did ask him to show him what's on the signs would it be reasonable to visually inspect his person for weapons that's exactly what he did so is your definition of a visual inspection slapping signs objection far no no it's not so he did more than a visual inspection is that right he removed an object that obstructed his view of the the majority of the person's body could he have changed his vantage point to get a different view objection four I don't know big signs hard to say i' like take a quick break is that all right Joe it'll be quick go ahead off the Record at 437 p.m back on the record at 4:44 PM what is the factual basis for your assertion that dial hit those signs to protect his officers and search for weapons well it asked to see the signs and U the individual they had reasonable suspicion that a crime had been committed so therefore they had the justifications for search and the signs were blocking the view they're big enough that he could have a weapon and his wife band or anywhere else so that's that's my basis for that opinion you just said that you just said that he hit those signs to search for weapons correct well what I I was saying that that's could be that was the purpose of getting the signs out of his hand would be my uh position on it how do you know that that was the purpose um oh well when I interviewed him he he told me that he had knocked the signs away or he was concerned about the person having a weapon so when you gathered information about this case and about the actions of dial you derived most of your facts from the phone call is that right no not at all most of the facts that I got were from the audio and video that I watch for each one of them for extended period of time would it surprise you if dial had never said under questioning or or let me rephrase you're saying that dial told you that he hit those signs to search for weapons is that right I don't well I don't know whether it was inferred or we had a discussion about it any I believe that's the reason that he hit the signs did he tell you that's the reason he hit the signs oh um oh I I did read it in his deposition that we just had gotten recently he had mentioned that so that's where I got that so it wasn't he didn't tell you that when you talked to him no I don't I think that's where I got it was reading it in in the deposition did you ask him when you talked to him why he hit the signs no I didn't did you think that was relevant to your opinion in your report no I didn't you're saying that you didn't think that it was important to your opinion in this report whether dial had a Legal Foundation for hitting those signs not that I not that I could see I mean we don't need a a legal reason to hit a knock a sign from somebody's hand well I don't and I don't understand that question do you need a legal reason to hit a sign no other than to search I mean that had to be that's what he said was his intent and your getting that from his deposition is that right I did not from the call with him I don't think we discuss I don't think I asked him about it in the call so would you agree that if he didn't say that in his deposition then that's not the reason you hit the signs objection for well I believe that that's my understanding is that's why I get the sign so um but an officer can take whatever action they think is necessary to search or protect themselves or the others that are at that scene what you're saying is interesting because these depositions occurred after you wrote your report that's there's nothing in my report about it just your questions so I'm going to share my screen again with your report so is it correct that your understanding of the facts is that n said what the [ __ ] to a citizen stopped at the intersection with his window roll down yes was it reason was it reasonable not to arrest him at that point objection form I think the arrest was reasonable and I haven't heard or seen anything that would lead me to believe that an officer in issues reasonable officer would have not done the same thing when n said what the [ __ ] to a citizen was their probable cause to arrest that with the the other circumstances yes is it right that you think that dial had the legal right to knock the signs out of null's hands solely to see the words that were on the signs legal right when it comes to an officer's discretion at a scene um that's that's um at the officer's discretion and did have I don't know what would be legal about removing the signs for whatever reason if they're there doing an investigation is it reasonable for dial to have hit the signs to be able to read the signs objection for uh yes I think it's reasonable that he knocked the signs if he wanted to read the signs so are you saying that officers can you think that dial had the legal right to read the signs if there was no Reasonable Suspicion objection for but there was Reasonable Suspicion so you're asking a question and you answered it because there is reasonable suspicion and again reasonal suspicion was what gave dial the legal right to hit those signs is that what you're saying OB for reasonable suspicion gave him the right to be in that position interviewing that individual to determine if a crime had been committed part of that was what the how offensive the signs were and so you're saying that there's a range of offensiveness and if it's and if the signs are very offensive no no I didn't yeah no that's not it no objection for isn't that what you just said that he had the you didn't you just say that he had the legal right to hit those signs so he could read them to determine how offensive they are objection for what I'm saying is he had he was there doing an investigation and the one of the points of the investigation was the complaints about the signs would it have mattered if the guy with his window rolled down didn't hear the phrase what the [ __ ] objection Farm not for the probable cause of an arrest I don't think it would matter um but um there again we're talking about probable cause here and reasonable suspicion and what an officer does at the street level is based on their best discretion and that's my answer to that but officers have to act in compliance with the law right they do and the law is determined by the courts correct objection Thor well the law is determined by the courts but an officer has discretion at a seen how to handle something with uh an individual do you think that an officer determines whether probable cause exists objection well that that's that is that and reasonable suspicion is part of their uh duties that's what we're trying to [Music] do would the contents of the signs made a difference in this case quite possibly um you know once they saw what the signs were saying and the people were complaining uh about the vulgar language and and so it's the totality of that but um they were there investigating complaints and one of the complaints was is the or the complaint was the signs in the vulgar language on the signs what if the signs had said back the blue objection should he have been arrested if his sign said back the blue objection F I wouldn't think so what if a lot of people complained about it that they were very upset then I think they should investigate and they they had if a lot of people complained about that then he had Reasonable Suspicion to stop and talk to that individual about it so when does the arrest become Justified objection far with um the officer's observation of him cursing at someone stopped at a stop sign so you're saying if the sign said back the blue then people complained then Winston nolles cursed at somebody that was driving by he should be arrested is that correct I didn't say I'm asking I'm asking you if you think that he should be arrested in that situation objection far I answered that by saying that he had if a lot of people were complaining about the sign that the officer would have uh reason to go and talk to that individual so if the signs had said back the blue and a lot of people complained that they were very upset then he yelled back the blue at a passing driver is it reasonable to arrest no because it goes back to the statute and that's not what the statute says I'm sorry Mr Tulie could you please repeat your objection just just a form objection it was all thank you what part of the statute's not satisfied if all he said was back to the blue and it upset people indecent profane abusive or vulgar language couldn't that be abusive not to my knowledge so are you saying not in the examples of abusive language who decides whether language is abusive according to the courts the courts when they go to court not on the side of the road when officers got someone [Music] detain in your report here you cite the statute for uh resisting arrest Texas Penal Code 3803 reads resisting arrest search or Transportation person commits an offense if he intentionally prevents or obstructs a person who knows is a peace officer or a person acting in a peace officer's presence and if this and at this direction from affecting an arrest search or transportation of the actor or another by using for Force against the peace officer or another what force did Winston NS use 62 300 PBS and these total turnaround he's going to be handcuffed he falls to the ground so are you saying that a reasonable officer would believe that falling to the ground qualifies as using Force against the peace officer for transportation of the actor or another correct but it's got this final Clause at the End by using Force against the peace officer or another force can be described if he fell to the ground he weighs 300 pounds and 6'2 he was using Force to resist I agree he was using force was he using that Force against the peace officer against the peace officer from transporting him yes I believe that's what that means so you're saying that your understanding of this statute is that if you don't move at all and the peace officer wants to transport you you have used Force against that officer if you're resisting right but this statute defines resisting as all of these these words here with the requirement that the individual has used Force against the peace officer well Force could be also if the if they're resisting and standing still right but I'm not asking you about the definition of force I'm asking you about Force against a peace officer well I'm I'm understanding your question but Force to avoid transportation of that person is is force is resisting but the statute requires the use of force against the peace officer otherwise it's not resisting is that do you agree well if the if the officer is attempting to arrest that person and they weigh 300 pounds and fall to the ground they are resisting so you're saying that even though this statute requires the use of force against the peace officer you're saying that if the person falls to the ground there resisting absolutely I'm saying that does this does this Clause by using Force against the peace officer have any meaning to you does it have any yes it does it it it's a a measure now Force doesn't mean hitting the officer it's he's resisting by Falling to the ground how did that how did Winston nolles use his Force against the peace officer the officer was attempting to put handcuffs on him he told him to turn around and put his handcuffs and he fell to the ground avoiding Transportation so he didn't comply the officer was he would he didn't comply with the officer's order and he fell to the ground and and resisted he could have fallen into a hole and that would have been resisting what are the procedures for the physical positioning of an officer during an arrest objection [Music] for well there's a matter of how you position your body when you're talking to someone um if there's other in officers involved uh backing up an officer the position where they're located to be able to see the individual and things like that are there any rules about moving an individual somewhere when you're making an arrest like a safe place to put them during the arrest um well there's policies yes that um that to protect the the person being arrested and most most of the time they're yes there are policies for that so would it be reasonable for an officer to position that suspect in a way that keeps everyone safer before an arrest objection form well that that really gets into what's going on at the at the scene but it it's it's that's somewhat ambiguous but yes it's you want to have a a place where you can arrest someone safely but if they're in the middle of the street you'd want to do your best to get them out of the middle of the street is it reasonable for an officer to try to move someone they intend to arrest away from other people to create a safe space yes when there's other people I would say possibly but that gets into an officer's discretion and where they are in the arrest they made the decision to arrest they usually handcuff the person and arrest them your report says that it's a common practice for law enforcement officers to be aware of their surroundings yes and there's more in the sentence referring to positioning bodies I'm focusing just on this part right here being aware surroundings uh what is what does that mean to you well um just that that take a look around and see um where you are are there anyone else approaching you um things of that matter okay and does that involve knowing the nature of the objects in immediate vicinity knowing what things are um I would would think so yes if they're not sure what something is in the immediate vicinity of an arrest is it reasonable to try to find out what that is objection form I would think so yes if if it could be a threat or a problem um right so are are you saying that that an officer needs to know what something is know whether it's a threat normally was this a normal arrest objection form yeah it's hard hard to say about that but um yes I'm asking in this arrest was it reasonable to be aware of what was in the immediate vicinity of the arrest objection Thoren from you know what I could see um and assess in the videos uh it appeared you know to be an area behind where they were arresting that was wet and muddy um but um had an individual beside the road and you had you should be able to if if uh to control somebody without them running out into the road or things of that nature well let's let's back up for a minute and talk about the your factual understanding of this case uh could you tell me how you generated the facts objection for can I tell you how I generated the facts my my apologies let me rephrase can you tell me how you learned the facts of this case um by reviewing the documents that you're highlighting here as well as watching the videos multiple times um talking to to of the officers um that's that's pretty much it did you ask short why he moved the tripod [Music] um I either asked him or he told me um yes are you saying that you can't remember if you asked him no I had a conversation was short about why he moved the tripod in that conversation did you ask him why he moved it that's what the conversation was about why he moved it yes I know but I'm just looking for a simple yes or no answer did you ask tripod yes and what did he say he said that um that they that he thought that that that the suspect was going to be arrested and that uh there was an area by the tripod that was wet and muddy and he moved it to the side where he wouldn't step in the mud if he needed to assist and so you're saying that it was reasonable him for him to move that tripod to make space for him to assist that's what he said yes oh and I think that's reasonable would it have been reasonable for him to Simply step around the tripod and get closer sir well if he if it wasn't for the mud I guess it would have been was his point he moved it to avoid stepping in the mud if he needed to assist but couldn't he have just gotten closer to the potential arrest without moving the tripod objection far I guess he possibly could but he couldn't have stayed in the same position that he was in observing the suspect did you ask short if he knew what was on the tripod um he told me that he learned later that it was a a cell phone on the tripod but did you ask him when you talked to him if he knew what was on it during the arrest I believe he just told me that he thought that he saw it was a cell phone he did or that he he moved it at the time he didn't know it was a cell phone but um I'm trying to recall um he wasn't sure what the device what it was but it was just uh I think he told me he thought it was a light on a tripod did he tell you why he thought that sure oh um okay having some technical well it was on on top of a yellow stand which is something you would see a light on like that a yellow tripod do you think it was reasonable that he thought it might be a light I don't know what I don't know but yeah I would say if you're there and you're watching a a person and you're there backing someone out up you're you're more focused on that than you are an object um that's potentially in your way would you ever expect a person who wasn't shooting a video to have a light on them outside during the day I don't know I don't have any idea uh your report reads here that shorts that your report reads here that after looking closer at the device he noticed it had a black case attached to it did you follow up with him about what he thought that black case might mean uh I did because he um later on he told me that he learned and I think it's somewhere in my report that [Music] uh that he didn't learn till later that it was a a phone and that uh he didn't see you know he he learned later that it was a phone and the rest of it down at the bottom there that if if he was noes was videoing recorded by a patrol vehicle he knew that Mr nolles was being video recorded by Patrol Vehicles dashboard cameras at the scene which is their policy um and that the C you know that the footage is always properly stored for Recovery right right but I'm asking you about Short's understanding of the object that was on the tripod I it says after looking at the device he noticed it had a black case attached to it did you ask him if that black case changed his opinion about what that might be I didn't ask him that question so are you saying that he told you that he noticed it had a black case attached to it and you ask no follow-up questions about that is that right yeah I think he he thought it might be a phone and but he didn't he didn't think the F that it was uh recording did he tell you that he thought it might be a phone let's see I'm looking at my note at my report uh no he later on he said when when I talked to him that it had been alleged that the device was a cell phone videoing location where Mr nolles was standing officer short did not see any indication that the device was recording but was aware that the contact with Mr noes was being videoed and so forth do you think it was reasonable that short didn't try to figure out what was on that tripod yeah he's there backing up an officer and and uh spending time on something that's remote uh I think his attention should be on the on the officers and the suspect but do you agree that uh cameras are often on tripods uh I know they are from time to time but it's not always what's on a tripod but yeah so you don't associate tripods with cameras is that what you're saying no not a construction yellow construction tripod I don't I'm not sure if the officer did but that's uh if short had known that day that that was a camera on the tripod would it have been reasonable to move it getting his um access to the suspect even if it was a camera that was recording you know it would always be better if he didn't move it if there if he knew it was a camera recording I don't think we should do that and why is that well because it's it's if they're recording something uh they have a right to do that if short suspected that it could be a camera but he didn't know for for sure would it be reasonable for him to move it objection form no so are you saying that if he thought it might be a camera it would be unreasonable to move yeah I would think it would be better not to yeah but would it be unreasonable to move it objection for not if it is impeding his View and progress toward backup so if the camera is recording but it's impeding his mission to to back up the other off it's reasonable to move is that right objection Thor I'm just saying there could be some circumstances where it was reasonable to move it if he knew it was a camera but that wasn't the case it's hypothetical but it could have also been reasonable to reposition himself without moving it assuming that he keeps a similar position is that right objection forign you know I'll just answer that by saying an officer has to do what they think is best when they're at in the scene like that and I think that's what he did with ill intent so that's offer discretion who arrested NS that day well clearly uh Mr Clark did so dial did not arrest nolles no he assisted in the arrest but the arresting officer is clearly Johnny Clark in short did not arrest NOS no how does what establishes someone as the arresting officer Mr Clark was given the call first to respond to the [Music] call told the person that he was under arrest transported into jail did the arrest report and the offense report Mr Clark is the arresting officer even if dial said put your hands behind your back it doesn't yes who put your hands behind your back and what is said is Clark is by practice uh the arresting officer in that at that scene okay I'd like one more quick break we're almost done is that right Joe sure with this off record at 5:21 p.m. recording stopped recording in progress back on the record at 5:26 p.m. Dr Stone you're muted there Dr Stone you got mute on you might you might know that I just I was trying we're ready didn't hit the button sure I want to ask you about paragraph five here from your report it reads in conclusion the evidence I've reviewed overwhelmingly supports that are reasonable prudent and well-trained officer and the shoes of Sergeant dial and officer short would have taken the same or similar action to arrest the suspect based upon the facts known to them at the time doesn't that mean that dial and short either took the same you know doesn't this mean that they arrested him well they were part of the arrest but they were definitely not the arresting officers they assisted with the arrest and they're named in the litigation so my response in all of this uh report is is simply based on the actions of uh dial and short and so um but they weren't the arresting officer Johnny Clark is definitely the arresting officer he's the one that um handled all of the case okay are you planning to testify a trial in this case yes okay I think that's it uh we're observe our questions until trial and Madame Court Porter if you want to send the original to me I'll forward it to Dr Stone okay yes sir and we are going off the Record at 5:28 pm thank you recording stopped