Jul 3, 2020

Cop Attacked Enforcing Pool Closure: Legal Rights


Just One in a String of Mob Attacks.

We saw this recently in Dallas after a white police officer enforced the pool closure rules at a private apartment complex. The city closed many private and public pools under certain enumerated circumstances, due to the coronavirus pandemic. But in this case, even if the pool at issue had not been closed due to COVID, it probably would not have mattered to an apparent group of BLM protestors and other anti-police elements in the city. 

According to local media, Thursday, June 25, 2020, at around 9:00 p.m., scared renters living in the Allure Apartment Complex called the police due to noises and disturbances emanating from the private complex' closed pool area (According to Google search, Thursday pool hours are 9:00 a.m. - 6:00 p.m.) Because of these emergency phone calls, an off duty police officer wearing plain clothes arrived before the regular police.

The officer was able to arrive quickly because he worked part-time at these upscale apartments as a private security guard. So he was dispatched to the scene. When he attempted to clear Allure's pool area of the several African American males creating the disturbance in the private, gated apartment community, he was attacked. Again, this was around 9 p.m. in this upscale locale of the North Dallas zip code.

The officer, who was in plainclothes, confronted the group of people and asked them to leave. Several people left after they were approached, but three or four stayed behind and were reportedly talking about the Black Lives Matter movement.

When the officer began taking photos of vehicles believed to belong to those who stayed behind, he was struck in the back and kicked several times, the report said. He lost consciousness and, after waking up, called 911. (Source).

Here is a legal analysis of what likely transpired here. We'll leave it to the jury to decide if social justice or blind justice should decide the case. Once the private swimming pool was closed, it was subject to Texas criminal and possibly civil trespass laws.

Below is the general rule of trespass taught in most law schools:

"Trespass to land is a substantial interference with a person's possessory interest in their land. Which causes substantial harm in the person being wronged. Trespass to land could be something as simple as someone walking across someone's yard, it could be as simple as someone trying to dump toxic waste on someone's property out in the boondocks. The bottom line is if someone goes on to your land, they're trespassing.." (Watch the tutorial here).

Similarly, under Texas Penal Code § 30.05, Criminal Trespass is defined as:

(a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:
   (1) had notice that the entry was forbidden; or
   (2) received notice to depart but failed to do so.

  • Criminal Trespass or Another Breach of Peace?

Here, the off duty cop was likely investigating the violation of a city pool closure law and enforcing Allure's pool safety and closure rules. Whether or not municipal ordinances such as those involving the governmental closure of pools are enforceable, depends on the judge, and whether or not the Constitution is followed. But there are also other Texas laws regarding pools that require visitors to have restroom access, etc.

Also, the governor's recent executive order regarding 50% occupancy and outdoor swimming pools may have no bearing on this case at all. Here, multiple trespassers were inside the gated enclosure and apparently had no permission to be there and they knew entry was forbidden. So assuming the pool was closed after regular hours, or the guests were unauthorized, the off duty police officer had a duty to investigate crimes and warn violators to leave.

Here, after being warned to leave, these African American males beat the white offer unconscious and probably also stole his camera phone. So although the Texas A.G. has already said many of these local Coronavirus rules are illegal under Texas law, existing laws probably cover this matter better.

So it probably does not matter that the Centers for Disease Control and Prevention say no evidence exists that COVID-19 can be transmitted in swimming pools or hot tubs using “proper operation, maintenance, and disinfection" (e.g., use of chlorine and bromine). Assuming that Allure erred on the side of caution, and closed their swimming pool and clubhouse due to COVID (and there is no evidence we could find they had) how would this change things if one of the attackers was a resident of the complex?

Well, to begin with, residents involved in the attack likely could NOT be charged with criminal trespass. And assuming the other BLM supporters involved in the attack were guests using or enjoying common areas after hours, this would be a civil issue, such as a breach of the lease agreement, discussed here. Either way, they can all be charged for their roles in attacking the cop, but that is for another article.

Assuming this mob of criminals were simply non-tenants who hopped over the fence enclosure (and it looks that way), the local DA has a case for criminal trespass.

  • Civil Trespass?

Similarly, the landlord can sue any non-tenant or non-guest for civil trespass. The facts are not yet developed as to this issue. So we will await more information before diagnosing this theory further. Here, the mayor and city council has apparently deemed it necessary to close some swimming pools. But here, that likely does not matter. The pool was already closed because it was after hours.

Because of this, these lawbreakers interfered with the landlord's possessory interest in the swimming pool facilities. Also, after politely asking the group to leave, one or more people attacked him. The violent crowd beat the officer unconscious, even after he ID'd himself as a police officer. The officer regained consciousness and was saved by his fellow officers. So in addition to trespass, these apparent Marxists are also subject criminal charges for assault and battery on a peace officer, and attempted murder, and possibly more crimes.

An off-duty police officer can be employed as a private security guard and still have the power to arrest offenders or in many circumstances carry a concealed weapon.

As noted above, the officer had a right to be employed as private security. But he was also a cop with a sworn, magisterial duty to investigate crimes. Considering the context of the swimming pool attack, this is most troubling. The crowd loudly spoke about the Black Lives Matter movement, which follows a number of similar attacks against white property owners, and against police officers nationwide. This follows a terrible crime in Tulsa, Oklahoma, in which two white law enforcement officers were shot in the head during a traffic stop for expired registration tags. One of them, Sgt. Craig Johnson, died the following day.

The Need for Law Enforcement.

Law is more than just what a legislature passes. It's more than what I fight about in court. It is a common bond between the members of society. Law enforcement is vital to that paradigm. The constant attacks on police-- both rhetorical and violent are a sign of a society on the brink of the disorder. Large cities see the fabric of their societies torn apart by political movements and mass protests. Usually, law enforcement is a thankless job.

The Police Have No Duty To Protect You - Apparently You are Not Allowed to Protect Yourself?

Our U.S. Supreme Court has ruled on multiple occasions that our own government has no duty to protect us. Many old school Americans are asking, what good are the police if you own property, or have a business? Over time, politicians have learned they can use police, or not, to effectuate political agendas.

The court has kept this stance for over 30 years. The Supreme Court has repeatedly ruled that police officers at all levels of the government have no duty to protect the citizens of this country. It is the job of police officers to investigate crimes and arrest criminals. We are on our own for protection. (Source).

Since the Rodney King Riots in Los Angeles, mayors in blue states will simply tell the police to abandon citizens, and lately, even their precincts. Now, police will even let mobs take over, or not depending on the political leanings of the mayor and city councils. Marxists, domestic terrorists, and their compatriots in the "journalism" field have pushed for a"defund the police" move. And they are succeeding in many cities. As a result, crime is skyrocketing.

But why is that? Because politicians decide when and if police will defend you. It's that simple.

But use a gun to defend yourself, "racist." After all, you can call 9-1-1 right? But while you're waiting for the defunded police to arrive late, or never at all if you let the crowd kill you and burn your business and house down, you just paid reparations, are "woke," and not racist. But none of that gets reported or will be glossed over in the news.

The last two months have made the situation much worse-- and much more dangerous for law enforcement and taxpayers. Many law-abiding citizens argue that a Marxist mob can knock down your property gate, and threaten the inhabitants and you, not the mob, will face arrest. Very Orwellian indeed.

"It was like the storming of the Bastille, the gate came down and a large crowd of angry, aggressive people poured through," Mark McCloskey said. "I was terrified that we'd be murdered within seconds. Our house would be burned down, our pets would be killed." Mark said they called 911 and grabbed their guns as they heard the crowd approaching their private, gated community on Portland Place.

"A mob of at least 100 smashed through the historic wrought iron gates of Portland Place, destroying them, rushed towards my home where my family was having dinner outside and put us in fear for our lives," Mark McCloskey said.

Gun sales are at historic high levels since these latest revelations. But efforts to defend your home and wife with a weapon against hundreds of people who just broke down your front security gate, and you will be labeled a racist by journalists. (Even if you're civil rights lawyer primarily representing black people).

To be fair, whether the group "Expect Us" broke down the gates does not matter because their leader says it's ok for them to trespass:

When asked why the group marched on private property, Aldridge said, "Just like in many disobedient protests, even in the '60s, you break laws, make people feel uncomfortable. We're not doing anything where we're hurting anyone or putting anyone in danger."

The couple handles mainly personal injury and civil rights cases, KMOV says. (Source).

Last time I checked, breaking and entering causes damage to property that people worked hard to earn. And even if the gate is broken down, that does not give angry people permission to enter. But I am just a lawyer. So this brings us to the swimming pool police officer.

Legally speaking, when the crowds involved in the swimming pool attack and trespassers case are caught, its members deserve both criminal and civil penalties under the law. Interestingly, politically motivated prosecutors are refusing to file or dropping charges against those who break the law if they are part of organizations donating money to Act Blue.

In addition to assault and battery, the DA representing the officer in the swimming pool case could file a verified complaint against the crowd members for reckless endangerment and conspiracy. The Dallas police union should back the officer to the hilt. Furthermore, it provides a valuable precedent fighting back against this lawlessness. It is a good, and justified start.