Sometimes Police Are Their Own Worst Enemy.

It’s no secret there has been a war on cops since the Obama years. From the federal targeting of Darren Wilson to the massive number of federal “consent decrees,” Democrats have a goal of federalizing and hampering law enforcement.

A few days back I was reading Houston’s local leftist rag, the Chronicle. They were going over a ruling from the federal 5th Circuit Court of Appeals from New Orleans. Arguably it is a conservative court, and the newspaper writers were giddy at this decision.

The nation’s most conservative federal appeals court just published a snarky judicial takedown of a wrongful arrest made by the Houston Police Department back in 2019. 

The opinion is especially notable because it was authored by 5th Circuit Court of Appeals Judge Andrew Oldham, who was general counsel to Gov. Greg Abbott before former President Donald Trump appointed him to the bench in 2018. The two other judges who made the decision were also appointed by Republican presidents.

The court’s decision is from an appeal from the US District Court in the Southern District of Texas. That court stripped the officers of qualified immunity in an incident from 2019. The officers appealed to the 5th Circuit, and that court confirmed the decision of the district court.

In reading the ruling, the basic facts are simple. In 2019, a former police officer name Austin Hughes was driving for Uber at 230am. He observed a pickup driving over four lanes of traffic and called 911. Mr. Hughes followed the truck until it crashed and the driver ran off into highway traffic. Mr. Hughes took a set of handcuffs he had in his car (he has them for a job as part time security at a bar), took the driver into custody and waited for police to arrive. Texas law does allow citizens to make a “citizen’s arrest” for crimes committed in their view.

Upon arrival of the two Houston Police officers (Michael Garcia and Joshua Few), Mr. Hughes explained his actions and said he was a police officer in the past. The officers conducted an initial Driving While Intoxicated (DWI) investigation, beginning with a Horizontal Gaze Nystagmus (HGN) test. This test is the first of a three-test battery (followed by the One Leg Stand and Walk and Turn) to determine impairment. Reportedly the officers found all six clues in the HGN test, which alone is 77% accurate to show legal driver impairment.

To the astonishment of both courts (and surprise to me), the officers let the drunk driver get picked up by a family member. The officers did not entitle their report “Driving While Intoxicated,” but “Impersonating An Officer.”

It gets worse. From the 5th Circuit ruling:

Two days later, Garcia signed a probable cause affidavit based on that incident report. The affidavit asserted Hughes “unlawfully, intentionally impersonate[d] a public servant, namely a peace officer with intent to induce [the drunk driver] to submit to his pretended official authority and to rely on his pretended official acts, by stating he was a Police Officer.” ROA.273–74 (first alteration in original). The affidavit included information gathered by both Garcia and Few during the investigation

With the warrant, the officer arrested Mr. Hughes, the Good Samaritan who called in the drunk driver for Impersonating a Police Officer. The case was later dismissed and Mr. Hughes has filed a civil rights lawsuit against the city, the district attorney’s office, and the officers personally.

Assuming this is an accurate summary of facts (I’ll make that presumption based on two the rulings of two federal courts, not on the Chronicle’s reporting), this is a serious failure by multiple levels of law enforcement.

First, the officers had a very plausible DWI case, where the drunk driver was identified by a wheel witness. For any DWI case, someone must be able to say they saw the suspect operating a motor vehicle on the public streets. That is not in question. Also, he failed the HGN test (and presumably the other two tests for a DWI investigation).

Second, the officers violated Houston Police policy by allowing a suspected drunk driver to be released to a family member. Department policy is a drunk driver will be processed as a DWI, not released to a third party, nor booked for Public Intoxication or transported to the city Sobering Center. I’ve seen officers suspended or terminated for violating this policy.

Three, where are the sergeants in this matter. If a sergeant made the initial scene, he could have corrected the error and insured the suspected drunk driver was booked for DWI. Also, before the officers went to the district attorney’s officer for the warrant, a sergeant should have reviewed their case to insure it was valid.

Four, the assistant district attorney who prepared the warrant seems to have not looked deeply into the actions of Mr. Hughes. The statue states a crime is committed when a person:

(1) impersonates a public servant with intent to induce another to submit to the person’s pretended official authority or to rely on the person’s pretended official acts;  or

(2) knowingly purports to exercise, without legal authority, any function of a public servant or of a public office, including that of a judge and court

No where can it be seen in the ruling that Mr. Hughes did either action.

I have no doubt the city is trying to retain the qualified immunity on the officers to give them cover in a lawsuit. There is a lot of blame to go around in this matter, and if the city attorney is wise, they will try to settle this matter quickly. Hopefully the police department will take actions to ensure an incident like this does not occur again.

Michael A. Thiac is a retired Army intelligence officer, with over 23 years experience, including serving in the Republic of Korea, Japan, and the Middle East. He is also a retired police patrol sergeant, with over 22 years’ service, and over ten year’s experience in field training of newly assigned officers. He has been published at The American Thinker,, and on his personal blog, A Cop’s Watch.

Opinions expressed are his alone and do not necessarily reflect the opinions of current or former employers.

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