Did Austin Police Illegally Arrest The Jogger?

On Thursday morning, Austin police officers arrested a young woman after she jaywalked against a light near The University of Texas campus, charging her with Failure to Identify and the formal term for jaywalking.

There are many valid questions about the event: Is the jaywalking/pedestrian safety initiative a good use of officer’s time? Is the West Campus area the area in most need of such an effort? Should APD focus more on jaywalking, drivers, or cyclists? Did the police treat the woman properly?

I understand the facts as given by APD to be correct, though additionally noted that the individual was wearing headphones while she was running.

The thing I find particularly interesting is the question of is the arrest itself illegal? Going back and forth with a few random folks about the incident, and this issue has come up a few times.

In Texas, you are not required to provide your identity to police officers, except in a relatively narrow scope—when you’re under arrest. (Now, if you lie about who you are, you can get in trouble at other times.)

Courts have ruled that you can’t be arrested solely for Failure to ID if you refuse to offer the information, but this is the context of a traffic stop. In conversing on Twitter about this, a Dallas lawyer pointed this out noting that Austin PD [sic] was successfully sued for this:

@Kraft Dutton v. Hayes-Pupko, No. 03-06-00438-CV, 2008 Tex. App. LEXIS 6030, 2008 WL 3166324 (Tex. App.–Austin 2008, no pet.).

— Hamilton Lindley (@hplindley) February 22, 2014

First, the lawsuit mentioned was against a Williamson County Sheriff Deputy, not APD, and it should be noted it wasn’t in the context of a traffic stop.

Jaywalking is defined in the State’s Transportation Code. I’m not a lawyer, so I’m plain-text reading the following.

The Transportation Code has specifics on the authority of peace officers to arrest someone for a violation of the “Rules of the Road” subtitle, which includes the walking against a don’t walk signal law.

The law specifically says a peace officer can arrest someone without a warrant for a traffic violation and that the peace officer can release the arrested person if they agree to appear before a judge. When you get a citation for a traffic stop in Texas, that’s what you’re signing: a notice that you agree to appear before a judge.

To me, this makes sense that, at least in some form, you’re “under arrest” when stopped for a traffic violation. The passengers of the car aren’t, but if an officer sees you commit a traffic violation, the detainment is “special” in some way. My lawyer friend disagrees:

@Kraft a traffic stop is not an arrest. It is temporary detention. APD has already been successfully sued for doing this same thing.

— Hamilton Lindley (@hplindley) February 22, 2014

He may be, and is likely, right to some degree—namely like a search of your car isn’t allowed without permission, warrant, or a new cause (not just that you were committing a traffic violation), I’d think. I haven’t heard back from the lawyer.

Some of the relevant citations:

An officer who arrests a person for a violation of this subtitle punishable as a misdemeanor and who does not take the person before a magistrate shall issue a written notice to appear in court showing the time and place the person is to appear, the offense charged, the name and address of the person charged, and, if applicable, the license number of the person’s vehicle.

and

To secure release, the person arrested must make a written promise to appear in court by signing the written notice prepared by the arresting officer. The signature may be obtained on a duplicate form or on an electronic device capable of creating a copy of the signed notice. The arresting officer shall retain the paper or electronic original of the notice and deliver the copy of the notice to the person arrested. The officer shall then promptly release the person from custody.

This reads, to me, that you can be “arrested” for a traffic violation, you can make a promise to appear before a judge, and then be promptly let go. While under this “arrest”, I would have to provide my identity for the promise to appear, as it is required by law to include my name and address.

This sounds like the plenty of times I was given a ticket in my younger years, so while it might not be an “arrest” as the term is commonly understood, it does seem to meet the standard of the failure to ID offense.

In either event, a plain-text reading of the law makes sense to me that if you’re pulled over for a traffic violation (whether as a driver of a car, someone walking across a street, or a cyclist), you have the obligation to provide your identity (verbally at least) for the sake of the summons, if nothing else.

All that said, I disagree with the argument that the arrest or the charge of Failure to ID is illegal.

Video of the part of the arrest, which seems mild in my opinion:

For full disclosure: A friend of mine joined APD about 18 months ago. He wasn’t involved in the situation and we haven’t spoke of it.

Featured Image Credit: flickr/conner395 licensed under Creative Commons.