Welcome to Audit the Audit, where we sort out the who and what and the right and wrong of police interactions. This episode covers traffic infractions on private property, official oppression, and First Amendment retaliation, and is brought to us by TX Christopher's channel. Be sure to check out the description below and give them the credit that they deserve. Before we dive into the interaction, I want to give a big thanks to the sponsor of this episode, Raycon. Summer's here, and it's time to get out of the house. Whether you're exercising, traveling, or just enjoying nature, Raycons are the perfect earbuds for taking anywhere you go. I've been using Raycon earbuds for years now, and I never leave my house without them, whether it's to the gym or the office. They're great for listening to my favorite albums and catching up on podcasts. 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On the morning of April 19th, 2023, Officer Scott Harold of the Texas City Police Department approached driver Christopher Scholl at the pump of a Buc-ee's gas station claiming that he cut through parking spaces at a high speed allegedly causing a white truck to slam on its brakes to avoid a collision. The interaction that followed was captured on Officer Harrell's body camera. Don't walk out to my car, please. What? Don't walk out to my car, please. Hey, man, you can't drive through the parking lot like that. You got your uh driver's license on you? Any weapons in the car I need to worry about? No, man. Is there any particular reason why you felt you needed to come through the parking lot like that? I didn't think I did anything wrong. I just came over to get gas. You were speeding and you cut through parking spaces. You know you can't do that. I didn't think I was doing anything wrong. I'm just I was coming to get gas. Yeah, but are we going to go back and forth or are you just going to You asked me a question. You want me to answer it or not? I'm not I didn't think I thought I was going even slower than normal. No, sir. You Normally people don't even park where you park. And that's the direct path to the gas pumps. You know that Sit that car that was turning right there. I was watching, man. As soon as you cut in front of me like that, I was like looking at it and I watched it happen, so I come here every day. There's almost never ever ever anybody, so yeah, I go through there cuz it's the straight path from the entryway way to here, which is what you're going to see everybody else do. But But I mean, you know, I hear you, man. I got it. To you it looked like I was going fast. To me I thought I was going even slower than normal cuz I didn't want to get too close to you. No, I understand. Thank you. Okay, sit tight for one second. You feel like your car going to fill up with gas? Okay. So, I'm not kidding you either, man. I come here every day, dude. Look, I'm not I send pictures of my wife the price of the gas here every day when I come through. Okay, look, I'm not going to write you tickets, but the only reason I'm not writing you tickets is cuz I'm out of tickets right now. Okay, otherwise you would be receiving a citation. For what? What did the citation I'm just curious. Disregarding traffic control device. On private property? Yes. Okay. You you You still can't do that. It's still illegal. Okay. Officer Harold states that if he were not out of tickets, he would write Mr. Shaw a citation for {quote} disregarding a traffic control device, despite the fact that the alleged violation occurred on private property. Under Section 544.004 of the Texas Transportation Code, {quote} "The operator of a vehicle shall comply with unofficial traffic control device." which Section 541.304 defines as {quote} "a sign, signal, marking, or device that is consistent with this subtitle placed or erected by a public body or officer having jurisdiction and used to regulate, warn, or guide traffic." Although the parking space lines could be considered markings, it is highly unlikely that a public body or officer would place parking line spaces in a private parking lot. Additionally, according to Section 542.001 of the Transportation Code, {quote} "A provision of this subtitle relating to the operation of a vehicle applies only to the operation of a vehicle on a highway unless the provision specifically applies to a different place." Section 541.302 states that the term highway means {quote} "the width between the boundary lines of a publicly maintained way, any part of which is open to the public for vehicular travel." which means that under Texas law, the traffic code generally would not apply to a private parking lot. Therefore, it is highly unlikely that a court would conclude that Mr. Shaw's driving constituted disregarding a traffic control device, even if the parking space lines qualified as an official traffic control device. So, I'm not going to write you a ticket. Um I hear you, man. I'm I'm I understand. I don't One, I don't appreciate the attitude. Two, I get it. You're upset. Nobody likes cops pulling them pulling up on them. Nobody likes it. Okay. But, you know you did wrong. You know you're not supposed to cut through the parking lot. And instead of being like, "Oh yeah, I messed up. Sorry, it won't happen again. You want to sit here and go back and forth with me. There's a lot better things than than this to be doing for you. You're right. I was working on a report. over here and they I mean there's people right now running around or on the thing. want to go to jail? You want to go to jail? You could go to jail for this. You can do what you want to do. I can't stop you. I don't want to take you to jail. Well. That's that is definitely a waste of my time. Okay? But the attitude is not necessary. I agree. That's on your part, sir. I haven't been rude to you at all. I will get in trouble. You go file a complaint, get me in trouble, write me up. I'm not worried about that. All right, well. I'll make sure that I'm there all the time. If I see it happen again, then Okay. we'll go from there, okay? Okay. All right. I'll look that law up. I probably got to keep it in mind. I don't believe you have the authority to do anything here on this on this parking lot like that. I could also take you to jail for class B reckless driving because you did almost hit that car. I didn't almost hit anybody. I was nowhere near There's There's cameras everywhere. Officer Harold claims that he could take Mr. Scholl to jail for {quote} class A reckless driving because he almost hit another vehicle. Section 545.401 of the Texas Transportation Code, which codifies the offense of class A reckless driving, notes that notwithstanding Section 542.001, which as we discussed earlier in this episode limits the application of traffic infractions to public highways unless the provision specifically applies to a different place, {quote} This section applies to a private parking area provided for a client or patron by a business other than a private residential property or the property of a garage or parking lot for which a charge is made for the storing or parking of motor vehicles. Accordingly, unlike the statute prohibiting disregarding a traffic control device, the reckless driving statute would apply in the Buck-ee's parking lot. The statute states that {quote} A person commits an offense if the person drives a vehicle in willful or wanton disregard for the safety of persons or property. And as the Fifth District Court of Appeals of Texas explained in the 2011 case of Franklin versus state, "willful and wanton disregard means the deliberate and conscious indifference to the safety of others. In the Franklin case, the court determined that an officer had reasonable suspicion to stop an individual for reckless driving after he observed him driving through a Shell station parking lot at a high rate of speed, causing the vehicle's tires to squeal. Although Officer Harrell and Mr. Shell disagreed about the speed at which Mr. Shell was driving and whether or not he almost hit another vehicle. Based on this precedent, it is possible that a court could conclude that Officer Harrell had at least reasonable suspicion to stop Mr. Shell for reckless driving if the evidence supported Officer Harrell's version of events." You can do what you want to do, Harrell. I can't stop you. If you want to be this way, then that's up to you. I'm trying to be a reasonable person. I I think I'm having a bad day because you're because you're doing this to me. I think this whole thing is ridiculous. What do you specifically do you think is That we're even talking about. Nothing happened. And here we are talking and you're threatening to take me to jail. And so I I shouldn't be getting upset? I don't call it a threat, sir. No, it's a threat. It's a threat. That is a threat. You're threatening me under current law now that to take something on private property, which I don't believe you even have the authority to do. That is a legal term, sir. It comes from Black's Law Dictionary. A misdemeanor for you to threaten to arrest me over something that you know is not really true. Well, what's the penal code on that, sir? Mr. Shell claims it is a class A misdemeanor for Officer Harrell to threaten to arrest him over something he knows to be untrue. It seems that Mr. Shell is referring to section 39.03 of the Texas Penal Code, which details the offense of official oppression, a class A misdemeanor. Under this statute, "a public servant acting under color of his office or employment commits an offense if he intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful. According to Section 1.07 of the Texas Penal Code, the term unlawful means criminal or tortious conduct. And in the 1996 case of State versus Edmund, the Court of Criminal Appeals of Texas held that a public servant can only be charged under this statute for mistreatment that is either criminal or tortious, meaning that an officer cannot violate this statute by committing mistreatment that is otherwise legal. As the Third District Court of Appeals of Texas explained in the 2020 case of Ratliff versus State, it can be inferred that public servants know their conduct is unlawful based on their actions and remarks, as well as the circumstances surrounding their actions. And evidence regarding a police officer's training can be considered when determining whether they are guilty of official oppression in circumstances where a statutory provision clearly prohibited their conduct. Applying this case law, if a court concluded that Officer Harrell illegally arrested or detained Mr. Shaw, he could potentially be convicted of violating this statute, although it may be challenging for the government to prove that he knew his conduct was unlawful. Trust me. It's okay. Trust you? Okay. We're good. I don't feel like we are. I feel like this is uh This is This is a problem. How is it How is it a problem? How is it a I feel like you're going to continue to to commit these behaviors that are unsafe and put people at risk. So, how do you feel like you did anything wrong? It's possible they may do it in the future, so we're not going to Now we're playing Jean-Claude Van Damme future cop. If you're going to You need to stop me from something I may do in the future? That's now your position? What is the law designed to do, sir? Oh, I I know you want I know you want I know you want voluntary compliance. I know you want voluntary compliance. Let me put your hands behind your Wow. Turn around. I I'm well, I mean, I don't Would you like two sets of handcuffs? No, my head hurts. And now Here's the right. Well, sir, I'm concerned that you're going to continue to do this unsafe behavior. So, it didn't have to go this way. No, it never did. None of this ever had needed to happen, I don't believe. Okay. I disagree with you. Okay, I know. I mean, you you wanted to sit here and argue with me about what I observed with my own eyes. I didn't think I was following you. You didn't almost hit me. You didn't hit another vehicle. Yes, you even know what truck I was talking about. Yeah. Okay, so So, what are we going to do about the park? think I was going to run into You You certainly were, sir. Definitely were. Can we back this down, dude? Can we pull off here, please? You you have forced my hand at this point. I'm sorry. I will Because if I don't go and and see this through to its conclusion, I know you're going to go to the police department and file a complaint on me. Now, the complaint's not going to do anything because I have it all on video. Everything is recorded. I don't talk to anyone in the public unless I have my camera on. Officer Harold tells Mr. Shell that he arrested him because he thinks he's going to file a complaint against him. And earlier in the interaction, he stated that he arrested him because he argued with him about his driving behavior. As the Fifth Circuit Court of Appeals, which has jurisdiction over Texas, explained in the 2021 case of Oliver versus Arnold, quote, "A government official violates the First Amendment by retaliating against a person for exercising First Amendment rights. That is, by taking adverse actions that cause the plaintiff an injury that would chill a person of ordinary firmness from continuing to engage in that protected activity." Similarly, in the 2019 case of Nieves versus Bartlett, the Supreme Court stated that, quote, "It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured. The motive must cause the injury." And that, now quoting again, "It must be a but-for cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive." Despite this recognition, the court ultimately concluded in the Nieves case that because, quote, "probable cause speaks to the objective reasonableness of an arrest. In First Amendment claims involving a potentially retaliatory arrest, quote, the presence of probable cause should generally defeat a First Amendment retaliatory arrest claim." Although the court recognized that, quote, "A narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so, it is not enough for a plaintiff in these circumstances to show that the officer chose to arrest them because of their speech after a originally exercising their discretion to issue a citation, as Officer Harold did here. Rather, the court concluded that, quote, "The no probable cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been." When applying this precedent, it is important to keep in mind that, as the Supreme Court noted in the 2018 case of District of Columbia versus Westby, quote, "Because probable cause is an objective standard, an arrest is lawful if the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking. Accordingly, if a court determined that Officer Harold had probable cause to arrest Mr. Shell for reckless driving, it is highly likely that it would also reject any First Amendment retaliatory arrest claims against Officer Harold, even though he essentially admitted to arresting Mr. Shell for his speech and told Mr. Shell that he was under arrest for a disregarding a traffic control device, an offense for which he clearly did not have probable cause." I'm not going to go complain to Harold at all. I'm just a little upset because I I really honestly Sir, I watched it happen, but I explained it to you, and then you wanted to argue with me. And he came through the parking lot and cut through all the spaces. He came through so fast and whooped into here, and there was a white truck. The white truck had to slam on its brakes. So, I come over here. I was just going to be like, "Hey, man, chill out." Like, "Chill out. Don't be like that." But he wanted to go back and forth and argue with me and give me all kinds of stuff. I didn't have any tickets and I didn't grab a writer this morning, so I was like, man, like this it didn't have to go this way. He kept going back and forth and back and forth, so I was like, all right, chill out, let's change the tone of this. You got a writer? Uh I got uh paper tickets. You got paper tickets? That's what I'm grabbing too. Okay. Okay. We're going to do this a different way. So the other officer has a ticket book he's going to use. You're going to receive be receiving a citation, okay? Cuz I think going to jail is a bit excessive, but well I agree with you, but I didn't have another option. I don't have another ticket book and I don't have a ticket writer with me. So we're going to do it that way, okay? Say that for me. The person that scarred me and it hurt. Okay. I'll see you sign right here. It's not admission of guilt. Mr. Shaw is no longer under arrest. Free to go, sir. After Mr. Shaw was cited and released, he obtained the body camera footage and posted it to his YouTube channel on May 15th, 2023, and it was shared on several other channels. In response to the backlash from the video, Texas City Police Chief Joe Stanton released a statement on May 24th informing the public that he had ordered an internal investigation into Officer Harrell's conduct by the Office of Professional Standards, and that the investigation could lead to possible criminal charges. Chief Stanton also reported that Officer Harrell had been placed on inside administrative duties pending the outcome of the investigation, and stated that, "The Texas City Police Department has strict policies prohibiting officers from violating individuals' rights with whom the officers encounter. These strict policies are underscored in the city's and the Texas City Police Department's policies, training, and practices." Mr. Shaw reported to the Law and Crime Network YouTube channel that he received a letter in the mail on May 26th informing him that his citation had been dismissed. Mr. Shaw also indicated in the comments of his YouTube video that he is pursuing civil action against the department and he has set up both a GoFundMe campaign and a GiveSendGo campaign to assist with legal fees. As of the date of writing this episode, the Bucky surveillance footage showing Mr. Shull driving has not been released to the public. Overall, Officer Harrell gets an F for demonstrating a fundamental misunderstanding of Texas traffic laws, potentially exceeding his legal authority as a police officer, and arresting Mr. Shull for disagreeing with him about a driving behavior and the legality of his conduct. Although it will remain uncertain whether Officer Harrell had reasonable suspicion or probable cause to detain or arrest Mr. Shull for reckless driving until the surveillance footage becomes publicly available, it is inarguable that Mr. Shull did not commit the offense of disregarding a traffic control device, which is the violation that Officer Harrell unambiguously stated that he detained, arrested, and cited Mr. Shull for committing. And while it is possible that a court could reject Amendment claim against Officer Harrell if it found that probable cause existed for a reckless driving arrest, that does not change the fact that Officer Harrell seemingly admitted to Mr. Shull that he was arresting him both because of his speech and to prevent him from filing a complaint. This encounter demonstrates how Supreme Court precedent limits the ability of individuals with legitimate First Amendment retaliatory arrest claims to pursue justice. And because of cases like these, I find myself agreeing with Justice Sonia Sotomayor's dissenting opinion in the Nieves versus Bartlett case, in which she argued that, now quoting, "While probable cause has undeniable evidentiary significance to the underlying question of what motivated an arrest, some arrests are demonstrably retaliation for protected speech, notwithstanding probable cause of some coincidental infraction." And that, now quoting again, "Plaintiffs should have a meaningful opportunity to prove such claims when they arise." Mr. Shull gets an A+ for respectfully voicing his dissent to Officer Harold's actions, complying with Officer Harold's orders even though he disagreed with them, and taking steps to challenge Officer Harold's conduct by pursuing legal action. All too often on this channel, we review encounters where citizens resist officers' attempts to arrest them because they do not believe they should be arrested, which in many states is a crime, regardless of whether or not the arrest was lawful. In this situation, I commend Mr. Scholl for immediately complying with Officer Harold's attempts to arrest him while verbally voicing his disagreement with his decisions and attempting to de-escalate the situation, and then challenging Officer Harold's actions after the completion of the encounter. And although he may have a difficult legal battle ahead of him, I would encourage Mr. Scholl to press on in his pursuit of a civil lawsuit. Let us know if there is an interaction or legal topic that you would like us to discuss in the comments below. Thank you for watching, and don't forget to check out my second channel for even more police interaction content.