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State of Arizona versus Shelton

Written by Subject: Arizona's Top News
A synopsis of the story: On August 27, 2008,  Jason Shelton was videotaping two guys protesting a photo radar van for Freedom's Phoenix, using a camera provided by Freedom's Phoenix in Scottsdale at 11:45PM on the corner of 68th St. and Shea. The guy operating the photo radar van calls his supervisor who calls the police.  Scottsdale PD shows up in under three minutes.  They acknowledge that the protestors are doing nothing wrong.  And arrest the media cameraman (Shelton) who isn't even taking part in the protest "for refusing to show ID."
Shelton before trial begins
[All pictures courtesy of Jet Lacey.] 
 
This is not a crime in either Scottsdale, nor Arizona.  The charge was changed the next morning to refusing to give his true full name. (ARS 13-2412A)  Which is only a crime in Arizona IF the officer suspects the person was involved in a criminal offense, not a civil offense. Otherwise police have no power to compel a person to give their name and never have the power to compel producing ID unless they are driving. "It is unlawful for a person, after being advised that the person's refusal to answer is unlawful, to fail or refuse to state the person's true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime."  They admit there was no crime ... on tape. So Shelton spent the night in jail.

He was additionally charged the next morning with "obstructing governmental operations."  (ARS 13-2402 A2)  This requires that he "by using or threatening to use violence or physical force, such person knowingly obstructs, impairs or hinders ... the enforcement of the penal law or the preservation of the peace by a peace officer acting under color of his official authority."  This was the charge they needed to justify failure to give true name. The problem is enforcing what law?  The cops admitted there were no violations, nor was a guy filming protestors disturbing the peace.

At some point (11/11/2008?) he was additionally charged with "unauthorized sign hiding official sign", (ARS 28-648 A3?) presumably the Scottsdale PD Photo Radar logo on the back of the privately owned ATS photo radar van.   Which is untrue since at no time was Shelton involved in the protest. "A person shall not place, maintain or display on or in view of a highway an unauthorized sign, signal, marking or device that ... Hides from view or interferes with the effectiveness of an official traffic control device."  Photo radar vans are not "official traffic control devices" either under Arizona law, nor federal law.  Nor were these protestors or the photo radar van on or even near a highway.  The defense attorney apparently had not been notified of this charge.

The fourth charge was added on 10/14/08, based upon Shelton's alleged uncooperative behavior on fingerprinting on 8/28/08. Again he was charged with a separate charge of "obstructing governmental operations."  (ARS 13-2402 A1) "by using or threatening to use violence or physical force, such person knowingly obstructs, impairs or hinders: ... The performance of a governmental function by a public servant acting under color of his official authority."  This charge apparently was also not notified to the defense attorney by the prosecutor's office.  There was a motion to dismiss filed by the defense on Wednesday, 3/25/2009 for lack of notification.

A fifth charge apparently was filed at some point (11/11/08?) of criminal nuisance (ARS 13-2908A1).  "A person commits criminal nuisance if, by conduct either unlawful in itself or unreasonable under the circumstances, such person recklessly creates or maintains a condition which endangers the safety or health of others."

More can be found at an initial preliminary report: http://www.freedomsphoenix.com/Feature-Article.htm?InfoNo=037628

Citation Count Description
C01760864 1 DISPLAY OF UNAUTHORIZED SIGN HIDING OFFICIAL SIGN
C01760864 2 OBSTRUCTION-REFUSE TRUE NAME
X01760864 3 CRIM NUISANCE-ENDANGERS
Count #2 is two charges combined.

Citation Count Description Disp. Date Disposition
C01693315 1 OBSTR GOVT OPERNS-PUB SERVANT 10/14/2008 DEF APPEARS/FTA SATISFIED
  03/25/2009 Defense files motion to dismiss.
Shelton finally finds justice in a courthouse
 
Trial 3/27/2009, 1PM, Scottsdale Municipal court. Judge Monty Morgan presiding. State represented by Prosecutor Paul Cargill (sp?) (sorry I did not get the name precisely). Defense attorney was Marc Victor . Shelton present.
Marc Victor hlds Shelton's hand surrounded by the mob  
The motion to dismiss was immediately denied by the judge because of "untimely filing" (two days before trial). 
Then the comedy started.  First there were four or five charges?  What were they exactly?  This went around and around for a few minutes until all three parties felt they knew what was being tried.  This circus would repeat itself once again at the end of the trial.

State decided not to have an opening statement. 

Marc Victor opened by presenting what the state would not be saying.  They would not be saying physical force was used or threatened at any time  which obstruction of government operations requires. That the person claiming Shelton was resisting fingerprinting leading to the second obstructing charge has admitted that he stomped down on Shelton's foot to distract him to get his fingerprints.  This admission was admitted without objection as defense exhibit A.  That that was the only violence committed and it was by an agent of government on Shelton.  That Mr. Shelton was not participating in the protest but was covering it as part of a media outlet call Freedom's Phoenix by taping the event. That he was not charged with any other crime at the time of his arrest other than "failing to provide ID."

State's first witness was Daniel Cooms, ATS employee at the time operating the photo radar van the night of the arrest.  He was unable to identify anyone in the court as having been at the scene that night, saying after eight months he was certain of only one person of the three and that person was not present in the courtroom.  He did say he felt intimidated by three large males hanging around his van late at night.  This had never happened to him before. 

On cross examination he said at no time did the person with the video camera [Shelton] block the photo radar camera.  Nor did anyone try to enter his vehicle, but they were peering in.  And they taunted him.  When asked about that taunting, he responded that they spotted his guitar inside the van and requested he play them a song.  Don't get me wrong, Mr. Cooms came away as an honest man relaying his story.


Next on the stand was Officer Keith English, badge #40, Scottsdale PD, 4 1/2 years on the force.  When he first arrived at the scene -- which he estimated was only four minutes after receiving the dispatch -- he noted two people standing  near the rear of the van holding a sign, and one person with a camera on a tripod.  He identified Shelton as the guy with the camera.  Both the van and all three of the people were on a public sidewalk at all times.

Under cross examination he stated to the best of his knowledge Shelton did not block the photo radar camera. 

That he requested ID's from the three individuals and Shelton refused.  He said he demands ID from everyone he questions as routine. That he runs ID to form a baseline for his own safety later on.  That he asked Shelton for his ID four times over a three to five minute period.  Shelton kept repeating that he had a Constitutional Right not to provide it, and that the Constitution trumps state law.

At this point Officer English "detained" Mr. Shelton by telling him to put the camera down, and placing him in an arm bar and handcuffed him.  He then placed him in the back of his squad car.  After two to four minutes, he repeated his request for Shelton (who had no ID on him found in the search of his person) to provide ID.  He then placed him "under arrest" for failure to provide ID.

He transported Shelton to their detention center and noted Shelton did not cooperate with fingerprinting and was placed in a holding cell. 

On cross examination, Mr. Victor asked about Mr. Shelton's alleged uncooperative nature with fingerprinting as to whether Officer English had witnessed that or had been told of it.  Officer English said he had witnessed it as he overheard the repeated requests by the finger printer approximately five to six feet from him while he was entering his report on a computer terminal, and he was notified of it later as well. 

He was asked to describe the type of camera Shelton was holding.  He was unsure of the make but said it was on a tripod.  He was asked to describe the length of the tripod.  He said about three to five feet.  He was asked did the officer feel that Mr. Shelton was threatening to use it as a weapon?   Officer English responded, "no sir."

He was asked about demanding ID.  Officer English said it was his standard policy of demanding ID from anyone he encountered to build up a database of IDs. He had said Shelton was hostile, so Mr. Victor had him describe what sort of hostility Shelton displayed? Ofc. English: Mr. Shelton had refused to provide ID. He was making hand gestures and was animated. And his voice was rising. He was passive-aggressive in refusing repeated requests to produce ID.

Mr. Victor made sure these points then came out under cross exam: 

1.  That Officer English did not advise Mr. Shelton that failure to provide ID would result in his arrest.

Officer English said he did advise Mr. Shelton of this while he sat handcuffed in the back of his squad car.  That led to an interesting legal opinion of Officer English.  Shelton was only being detained at the time.  Being held in an arm bar, handcuffed and placed into the back of a squad car constitutes "detention" not arrest.  Arrest is when Officer English says "you are under arrest."  Sort of the Alberto Gonzales School of Justice and Semantics.

I don't know about you, but being hog tied and secured in a locked car seems like arrest to me.  Being detained is when a cop tells you you are not free to leave.  Being arrested is when you have no doubt.

When Shelton continued to refuse to provide ID he place Shelton under arrest.

2.  Officer English acknowledged Shelton had committed no crime at the time of putting handcuffs on him.

3.  Officer English said he did not witness Shelton blocking the photo radar van's cameras at any time.


Next of the stand was Officer Zak Dylong, badge #1238, 24 month veteran of Scottsdale PD.  He talked with the other two individuals holding the signs.  They readily produced their IDs, which were run through the federal database (NCIC), were cleared and told they were free to go within three to five minutes of Officer Dylong's arrival.  They remained until Officer Dylong left some ten to fifteen minutes later.

They were not cited for anything.

State rests.

After the state presented its criminal case in State of Arizona versus Shelton and rested, defense attorney Marc Victor moved that insufficient evidence was presented for the defense to even bother putting on a defense and asked for immediate dismissal of all charges for lack of evidence.

The state responds to the judges inquiries by agreeing Mr. Shelton did not participate in holding a sign nor was he on a highway so they agreed to a Rule 20 (PDF) dismissal of the display of unauthorized sign.  They also agreed that since the primary complainant -- the finger printer -- was not available to offer testimony (because who wants to get on a stand and reaffirm your foot stomping assault as standard operating procedure on uncooperative prisoners) that the charge of obstructing government operations of a officer carrying out his duties should be dropped as well.  But the rest of the charges should go forward.  Of course this is where just which charge are we talking about here circus starts back up.  Kind of fun to see them try to figure out which charge is being discussed.

The judge then asks the prosecutor about the other obstructing government operations charge.  There was no evidence that Shelton ever did or threatened violence or physical force as required under law, and indeed Officer English testified to such at the time that he never felt threatened by Shelton.  The states tepid reply led to another  Rule 20 dismissal.

Then the criminal nuisance charge was discussed.  The judge asked how was Mr. Shelton recklessly creates or maintains a condition which endangers the safety or health of others?  The state kept trying to say that Mr. Shelton's refusal to provide ID prevented Officer English from leaving the scene in which his car was parked in the street up against the curb.  This led to a safety situation for cars passing by who might get into an accident due to the flashing lights and constricted roadway.  If Mr. Shelton had simply provided his ID, this time would be minimized.  But his refusal prolonged the situation and endangered every passing motorist.  Rule 20 dismissal.

But here is where my jaw dropped.  The judge had just dismissed all charges except the charge of refusing to provide full name on demand.  Upon this charge -- the one charge I thought to be obvious glaring BS from the start -- he declared the trial would go forward on the theory that once a police officer is dispatched to a scene that is in and of itself enough to constitute reasonable suspicion of a criminal offense being or been committed and everyone on the scene can have their identity demanded of them.  And you can bet that means government issued ID.  Walking papers.  Permission to travel optionally granted by cop on the scene with complete judicial support [Regardless of the obvious intent of the law.]

You got to be shitting me, I thought!  Of all the charges, this one was the most obviously one in which the law unambiguously was on Shelton's side.  The legislature had made it very clear, a cop may ONLY demand (under penalty of arrest) a name from someone IF and only if they were suspected of committing a crime.  The testimony had already shown that there was no crime, no suspicion of a crime and no indication of a crime to be committed.  Also, Shelton had been arrested before being advised as required under this law that he must provide his name or face arrest.  This was the arresting officer's own testimony.

What could compel a judge to want to go forward on this charge?  I can only speculate.  Either he wanted to establish a power of law enforcement to demand ID and names of anyone they encounter despite the plain English of the law, or ... ah, I can't think of another reason.  Perhaps a more experienced court aficionado or a lawyer would have a better opinion than mine.

Credit the prosecutor. He knew he did not want to play this game.  This charge standing by itself had nowhere good to go for him.  In my opinion the judge was on his side on this charge, heck he is a judge, he is on the side of the prosecutor from the opening gavel.  I do not know if it is because the prosecutor is inexperienced, he did not realize he had an ally in a black robe, or if he knew the law had been misapplied.  But he knew he could not argue this law with the testimony presented and no violation of the law other than the charge of refusing to provide your name.  The judge finally in exasperation asks him does he want the final charge Rule 20'ed?  Which of course is not the prosecutor's job.  The Supreme Court makes it bloody clear on the Rule 20 link I posted above: It is the judge's job!   The poor prosecutor was let to sort of stand uncomfortably silent until finally the judge granted a Rule 20.

All five charges dropped with prejudice under Rule 20, lack of sufficient evidence for trial to go forward. F!!!! I have never seen anything like it.

     It was fun to finally see Marc Victor in action. Every other time the date approaches the charges mysteriously get dropped. It would have been fun to have watched the defense put on its side of things. Mr. Shelton would be the first witness. And Ernest Hancock, Publisher of Freedom's Phoenix was going to testify that Shelton was using Freedom Phoenix's video camera recording the protest for us (but I think the prosecutor agreed to stipulate to Mr. Shelton being a media guy on scene that would preclude that testimony). But it never happened.
Ernie on crackberry before trial 
      I hope you file charges on the jail house employee who assaulted you Mr. Shelton. I hope you sue the City of Scottsdale and Officer English for violating your civil rights which you so clearly enunciated for Officer English's edification. Though I am afraid the Constitution is lost upon this cop. This trial cost Shelton thousands of dollars. A big chunk of which has been paid for by the generous contributions of others, but I know Shelton is still out several hundred at least, not counting time wasted. By the way for anyone wishing to contribute for what turned out to be a successful trial, there is still a need for money.  Marc Victor was in such a good mood he knocked $1,000 off of what was owed him on the courthouse steps.  And Shelton was arrested by the DPS in November for criminal trespass on the freeway while filming another photo enforcement protest for Freedom's Phoenix . It came out that the "regular" television media have a special understanding with the DPS that they can be on the freeways to film footage of events, but apparently not Internet guys.  It says the citation has been adjudicated but no judgment filed for whatever that means.

Lastly, Shelton, you need to communicate with your lawyer more.  I don't think he was amused to find out you had a $1.5 million law suit filed gainst the judge after the trial. :-D

One final thought: Please keep in mind, the law says you are required to provide your name.  It also says nothing else is compelled.  Yet, your name is not what the officer wants, he wants your driver's license.  He wants your government issued ID.  He wants your walking papers or you are not free to go.  No surprise.  And what the law plainly says is disregarded and a twisted alternate rule is substituted.
 

7 Comments in Response to

Comment by Ed Price
Entered on:

A couple of the slips were...

The State is the one that is the plaintiff. And the State can't get on the stand as required by law and speak into the record. So, the State should not be the plaintiff if it wants a good solid case.

The second slip was that Shelton didn't demand that the plaintiff get on the stand and speak into the record. However, any time in the future, Shelton can declare a void judgment and require the plaintiff to appear.

Comment by mike robins
Entered on:

The first officer's testimony...who caught the slip?

Comment by joe usanow
Entered on:

(6 months ago) i'm 61 and 6weeks after a stroke/caroted artory surgry i'm driving home to colorado from ohio when i was pulled over in a blizzard/ice storm on I70 in missouri and abused by three sherrifs. i was tricked into unlocking my door and was arm held escorted outside to unlock the tool shell/camper on my pick up. iwas made to stand outside in the blowing wind for near 1/2 hour while these three searhed my vehicle because?  i've recovered enough now to want justice for this eldely abuse, any thoughts/help would be apprecated

Comment by Michael Hall
Entered on:

Wow-This article should be in every grade school,every high school,every law school and office,etc...Funny how now we are those poor slobs in E. Germany and Russia we used to snicher about back in school in the 60**Q**s and 70**Q**s eh folks? Show me your papers please!!! Actung!!
We are now the monster eh Pogo?

Comment by Jim Kaiser
Entered on:
Hey - sorry I couldn**Q**t make it to the trial.

I found out about it just a couple hours before it started and had something going that I couldn**Q**t get out of.

A bittersweet deal - nice that it ended the way it did, but it sucks that this kind of garbage had to go as far as it did.

Something tells me we haven**Q**t heard the last of this case.

Jim

Comment by Terry Bressi
Entered on:
Thanks for the coverage and update Powell. This is the first account I**Q**ve heard regarding how the Arizona courts are interpreting (or twisting) ARS-2412A.

Something folks definitely need to be aware of...

Comment by Richard Stone
Entered on:

Good for you Sheldon or should I say teflon Sheldon.


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