Have you ever come back to your car and found a citation for illegal parking on your windshield? You weren’t there when the citation was written, so the officer obviously didn’t need to see your driver’s license to cite you.
Hold that thought…
The police body-cam video, recently posted by the Pagosa Springs SUN, of the February 7 arrest of Gerald Manzanares by Archuleta County Sheriff’s Deputy Brian Reis for what began as alleged illegal parking, and subsequent events, illustrate our system of limited government.
Colorado law recognizes a spectrum of encounters between citizens and law enforcement officers (LEOs). At one end of the spectrum is the “consensual” encounter, an example of which would be, an officer approaching a citizen and simply saying “Excuse me, do you mind if I ask you some questions? You don’t have to answer, and are free to leave!” The other end is an officer arresting a citizen.
The standard for judging the legality of a citizen encounter varies depending where on the spectrum it falls. The one between Manzanares, and Reis began near the consensual end, then was escalated to an arrest by Reis without legal justification. That’s why the District Attorney declined to prosecute Manzanares – a decision with which I wholly agree, after viewing the several video clips shared by the SUN.
So from the point of view of the law, what did Reis do wrong? I’ll address his actions, then suggest what Manzanares should have done differently.
But first a brief comment about body cams. I was an advocate of officers wearing them long before they became widely accepted – for the very reason this case demonstrates. With the video there is no dispute about what happened – we can all see and hear it. Without the video, it would have been a swearing contest between Manzanares and Reis – and in my experience there would have been a wide gulf between their versions of the events.
Now back to to the incident. Dep Reis knocking on Manzanares’ door to speak with him about the parking complaint was appropriate and legal, as was the interaction up to when Manzanares was arrested (4:40 on the video). Reis’ habeas grabbus of Manzanares’ arm is when things went wrong!
By Reis’ own statement (on the video) this citizen encounter was all about alleged illegal parking. At one point, Reis says he will cite Manzanares for violating the county parking ordinance. Reis knew he was there to investigate a non-criminal parking infraction. At any point, he could have simply written a parking citation, put it on the offending vehicle windshield, and left.
If he needed the name of the vehicle owner to write the citation he could “run the tag” on the vehicle to determine ownership – as he would no doubt do if the vehicle were abandoned on a roadside. Besides, from the video it’s obvious Reis already knew Manzanares was the owner.
If Reis can write a parking citation without the co-operation, or even presence, of the vehicle owner, why did he need to see Manzanares’ driver’s license?
He didn’t.
Manzanares was not suspected of committing any crime. Nor was he operating the vehicle at the time. So under Colorado law, CRS 16-3-103, Reis exceeded his legal authority when he ordered Manzanares to “give me your license or you’re going to be under arrest”.
Manzanares’ arrest illustrates that, in the heat of the moment, LEOs sometimes forget the limit of their authority. That’s when they get themselves in trouble.
Our society is based on a hierarchy of power. At the top is the citizenry. This is clear from the Preamble to the United States Constitution which begins (with capital letters) “We the People…”. Similarly, the Colorado Constitution begins “We, the people of Colorado…”
Ultimate power resides with “the people” — not with the government or its employees.
Following those first words, the “people of Colorado” explain why they “ordained and established” the Constitution, by enumerating the reasons they are creating a government. That recitation enshrines as the bedrock of the state’s very existence the natural law concept that government only exists because “the people” create it, and can only do what they empower it to. That is “limited government” in a nutshell.
Within the authority conferred on the Colorado state government by “the people” is for the legislature to create and empower lessor subdivisions of government, to wit: the geographic entity Archuleta County, its county commission (who enacted the parking ordinance), and its sheriff (who enforces that ordinance). But all the way down that pecking order, from the Constitution to Deputy Sheriff Reis, they can exercise only whatever authority “the people” gave them.
The legislature, by statute, both confers and limits the authority of state LEOs to arrest; see Colorado statute §16-3-102. A citizen in Colorado can be arrested only within the limits of that statute. Deputy Reis knows, or should know, those limits.
But occasionally LEOs mistakenly assume the converse — that they have the authority to do anything that is not expressly prohibited. That’s how a “police state” works in practice.
I’ve had officers ask me to show them “the law” which prohibits them from doing something. My response is always the same. Show me “the law” that says you can do it — since if we go to court based on what you did, a judge will only find it legal if I can point to the law which makes it so. That’s how “limited government” works in practice.
Having shown why Deputy Reis’ arrest of Manzanares was wrong, I’ll suggest what Manzanares’ could have done differently. But what he did in no way justifies Reis’ decision to arrest him.
I tell anyone who asks, and make a point of telling my family, the time and place to dispute a LEO is in a courtroom – not on the roadside, or during an encounter such as between Reis and Manzanares. Officers will always prevail “out there” for the simple reason they will call for whatever level of “back up” force they need, as Reis did.
Commensurate with the authority to arrest, the Colorado legislature has also criminalized resisting arrest, CRS § 18-8-103. Interpreting that statute, the Colorado Supreme Court said, “While ‘resisting an unlawful arrest’ is not expressly limited within the statute, we hold the statute does not broaden the long-accepted rule that one may not act to protect himself or property, whether it be in self-defense or otherwise, with more force than is reasonably necessary”.
Manzanares’ properly reacted to his frustration with the situation by telling Reis to “write it up” (meaning a parking citation) and walking away. But then he resisted — which the video clearly shows — by refusing to place his arms behind his back to be handcuffed.
Was Manzanares’ resistance “reasonably necessary” force “while resisting an unlawful arrest”? A jury would have been asked to make that decision, had he gone to trial for resisting arrest.
A jury is comprised of randomly selected members of “we, the people”. Just as the people have the power to establish a constitution that in turn creates a legislature to enact criminal laws, so through the jury the people retain the ultimate power over the government by being the sole arbiters of whether one among them is guilty of a crime.
A jury decision about Manzanares’ actions was forestalled when the District Attorney declined to prosecute. The people elected the District Attorney to make such decisions. So the people indirectly decided Manzanares was not guilty.
If Manzanares still wants to be directly vindicated by his fellow citizens he can have his day in court by filing a civil suit against Reis. Manzanares’ actions may well be found to have been reasonable by a civil jury. Fight using the law in court, not physically at the scene!
Especially in our current culture where LEOs are justifiably hyper-concerned about their own safety. Deputy Reis had no way of knowing if Manzanares was refusing to put his arm behind his back because he was reaching for a pistol concealed in his front waistband — a not uncommon scenario. That may be why the internal investigation by the Sheriff determined Reis did not violate the use of force policy.
But putting aside the physical arrest of Manzanares, which is the focus of media attention because of the video, what is the effect on the underlying cause of the incident? From what I heard on another body cam recording from an earlier encounter between a deputy and Manzanares, this is a disagreement between neighbors apparently being aggravated by actions of a homeowner’s association (a quasi-government body).
Has Manzanares’ arrest, and the subsequent events, further aggravated the feud? I’ve seen where neighbor feuds can lead. It can be fatal.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.