Resisting Arrest vs Excessive Force: Lessons from Fort Worth Police BodyCam

Back on a hot summer night this past August, a Fort Worth Police Officer named Sergeant Kenneth Pierce responded to a 911 domestic disturbance call.  He had been on the job for over 20 years.  Family violence calls weren’t new to him.

He went to the home with a fellow officer, a rookie named Maria Bayona.  So he wasn’t alone when he approached the apartment.  Bayona was wearing a bodycam.

In the 911 call that prompted the response, 29 year old Dorshay Morris told the Fort Worth police dispatcher that she was going to defend herself with a knife against her drunk boyfriend if necessary, who was outside damaging her car.

Bad things happened during this domestic violence investigation by these two responding police officers. 

The woman at the scene who had called the police for help and protection ended up being arrested on charges of aggravated assault with a deadly weapon and resisting arrest.

She was also handcuffed after being zapped with a stun gun (Taser).  The Taser was used by Officer Bayona as ordered by Sgt. Pierce.

Veteran Fort Worth Police Officer Terminated

Now it’s December.  And a couple of weeks ago Sgt. Pierce was fired by Police Chief Joel Fitzgerald for what occurred in that call.  The charges against Dorshay Morris have been dropped.

Officially, Sgt. Pierce was terminated on charges of neglect of duty; failure to supervise; and violating the Fort Worth Police Department’s police regarding the use of force.

And along with announcing the veteran officer’s termination, Police Chief Fitzgerald released the video of the incident as captured by the bodycam.

You can watch it here:

The police officer hired defense counsel, and they released the 911 call that started everything.  They’ve also released an expert report on the use of force taken by Sgt. Pierce which opines he was within policy guidelines and not in violation for the use of the stun gun on Ms. Morris.

Controversy Surrounds This Event

The Fort Worth Star-Telegram is following this story, and they’ve got the bodycam video, the 911 call and its transcript, the expert reports, the official press statements, and the police reports for the incident itself as filed by Sgt. Pierce and Officer Bayona.

Read the details here,  “Fired Fort Worth Police Sergeant Had ‘No Basis’ To Arrest Woman, Chief Says,” written by Ryan Osborne and Prescotte Stokes III and published by the Fort Worth Star Telegram on December 22, 2017.

There is discussion in the Star-Telegram’s coverage of a political ribbon running through this case, tied to last year’s arrest of Jacqueline Craig by Fort Worth Police Officer William Martin. Officer Martin ended up with a suspension for use of excessive force in that case.

The video of the Craig arrest went viral.  The release of the video has been challenged by the City Attorney’s Office.  The City Attorney argues that the bodycam video release was illegal.

Resisting Arrest: The Police Officer’s Defense

When an officer has used force in an arrest and is challenged on that decision, he may argue Texas Penal Code Section 38.03 in his defense.  Under this law, it is illegal to resist arrest.

Texas Penal Code 38.03 states:

A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

Key here:  the police officer does not have to act within the law in order for the person to be arrested for Resisting Arrest.  The person can be convicted under Texas Penal Code 38.03 even if the officer was acting illegally and wrongfully, unless excessive force was involved.

Excessive Force: Defense to Resisting Arrest Charge

It is legal to use force to resist an arrest in the State of Texas if Texas Penal Code Section 9.31(c) applies.

Under Texas Penal Code Section 9.31(c):

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

In other words, if the police officer uses excessive force against the person, then the use of force in resisting that arrest is justifiable and defensible under state law.

We’ve discussed Resisting Arrest as well as Evading Arrest before.  Read “Arrested in Texas: Resisting Arrest, Evading Arrest, Detained Without Arrest.”

We’ve also discussed the ramifications of police excessive force, which is a continuing problem in Texas.  See:

• Can You Trust the Police? Police Excessive Force and the Dallas D.A. List of Names
• Texas Police Excessive Force: Concern Isn’t Just the Police Officer, It’s the Entire Police Department
• Police Brutality in Texas? Robert Tolan Wins as 1983 Excessive Force Case Returned to Trial by US Supreme Court
• 4 Shocking Texas Traffic Stops: Current Texas Law For Arrest After Pulled Over by Police.

Defending Against Arrest Charges and Police Excessive Force in Texas

In Texas, the earlier the better to have criminal defense representation if you have been involved in an incident of force with a Texas police officer.   In fact, having a lawyer present before the police arrive (if you think they are going to charge you with something) is optimal.

However, it’s not always possible to have your defense attorney present when the police show up.   You may not think you need representation at all if you are the one calling for help, like the woman in the video above.

There will be police officers who use force.  They will be wrong to do so.  However, you may need to take action to defend yourself in these cases.  Excessive force is a stigma on law enforcement and it’s not easily revealed or admitted.  And not every officer is wearing a bodycam when bad things happen.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”