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With the San Marcos City Council set to take a final vote on a proposed Cite & Release ordinance during Tuesday's meeting, San Marcos Police Officers Association’s (SMPOA) President Jesse Savaadra and Councilmember Maxfield Baker shared their views on the proposed legislation with the Daily Record.
The ordinance, which has been debated for more than 9 months, would guide police officers on when to give citations rather than arrests for low level, non violent misdemeanors such as Class C misdemeanors other than public intoxication, assault, or family violence; possession of marijuana less than 4 ounces; driving without a valid license; criminal mischief causing damage less than $750; graffiti damage less than $750; theft of property less than $750; and theft of services less than $750.
In its most recent reading, the ordinance had the votes of four out of seven council members. The remaining three supported the policy as a resolution, which would make it an expression of support rather than civil law.
The proposed ordinance draws worry from community members that police officers would not have enough discretion in the ordinance to keep the community safe. The ordinance does, however, provide officers discretion to arrest for the outlined low-level offenses in certain cases: if they are not a county resident, they are a danger to themselves or society, they are publicly intoxicated, they have outstanding warrants or are charged with a more serious offense.
“If they pass an ordinance, officers are going to do what the ordinance asks us to do,” Savaadra said. “Officers are going to follow this to a tee. All of these street diversions that have been happening are going to go away, I think it’s been about 50 per month, and then more people are going to be entered into the system.”
During the council's April 7 meeting, in an effort to preserve diversion practices, the word “only” was removed from the list of instances when an officer can make an arrest, giving them more discretion to determine how to respond to citation eligible offenses. There was also an amendment that placed the responsibility of assessing whether an offender is a danger to themselves or society on the officer, which better protects them if they found themselves in a court of law for making the arrest, so long as they documented their justification for arrest.
San Marcos Director of Public Safety Chase Stapp and Interim Police Chief Bob Klett have said the listed circumstances are fairly exhaustive but maintain there are always unforeseen circumstances in the line of duty. The ordinance requires that if an arrest is made instead of a citation, a paper trail is made with the justification.
Still, the San Marcos Police Officers Association opposes the ordinance because despite added discretion, it creates additional civil liability for the police officer — meaning that a police officer who uses their discretion to make an arrest for a citation eligible offense could be sued as a private citizen for violating the offender’s civil rights. Officers have been using discretion to decide when to arrest and cite for citation eligible offenses since 2007 when the policy was enacted statewide by then-Gov. Rick Perry. The proposed ordinance as it stands in San Marcos includes fewer citation eligible offenses than the state policy outlines.
“I think we will end up with officers that are no longer proactive in the community because you face the possibility of civil action either because you violated this or the state penal code,” Savaadra said.
Baker maintains that holding officers accountable for upholding the civil rights of residents is exactly what the ordinance intends to do, and is concerned that removing the word “only” may give police officers too much discretion.
“The word 'only' seems to really be the cornerstone of creative accountability with this ordinance. This could open an officer to civil liabilities, and yes, that’s the point of it. If an officer is wrongfully arresting someone that they could have written a citation and they use their discretion to justify why they decided to do the arrest and it’s found by a court of law to have been unnecessary as deemed by that judge, then yes there should be accountability. That’s what the ordinance is set up to do. A resolution says, 'hey we wish you would do this just isn’t going to be as effective in my mind.'”
Supporters of Cite and Release as an ordinance recognize that San Marcos Police Department have made arrests in the majority of citation eligible instances; SMPD data shows 77% of people who were eligible for a citation in 2019 were arrested and 87% were arrested in 2018. Supporters have also expressed there is significant damage done to an offender’s family and livelihood when they have to spend a night in jail because they may miss work or school unexpectedly.
Both supporters and detractors of the ordinance understand that the legal process someone undergoes for citation eligible offense is the same whether they receive a citation or if they are arrested. They still have to show up in court and receive a sentence of jail time, a fine, or community service for example. However the night spent in jail can affect a person’s life for years to come because they are entered into the legal system and a criminal record is created, as Councilmember Mark Rockeymoore shared his own experience during a council meeting.
Savaadra says that issuing a citation and releasing an offender for a theft at 3 a.m. or a “peeping tom” incident is not considering the victim’s feelings or safety. Victims may feel they have been neglected and left vulnerable to additional crimes if an officer only issues a citation and releases them on the spot.
Most people who are arrested for a citation eligible offense are allowed to be let out on bond.
“If you are a peeping tom, currently, they can cite and release you, they can divert you, or they can arrest you, that’s all the options they have,” Baker said. “If they arrest you they take you in, and if you have money on hand because you are not poor, you pay your bond, you get out and can go commit the very crimes they are worried about you committing again already,”
The ordinance states that an officer can make an arrest for cases like these if they make the assessment that the offender is endangering the community which might be presumed in the case of a “peeping tom” or a midnight robber but SMPOA encourages officers to issue citations in all cases rather than use their discretion to protect themselves from civil liability.
Savaadra stated in an email to the city council: “In an effort to protect its members the SMPOA will advise its members to cite and release all offenders so the officers are never accused of 'Not being Justified' in their decision to arrest. Resulting in all street diversions receiving citations and all who have benefited from officer discretion and their street diversion to be entered into the criminal justice system.”
In response, the word “only” was removed from the list of instances when an arrest is appropriate.
“Our advice to our Officers would be to follow the ordinance as it is written (where it does not conflict with the Texas Penal Code and the Texas Code of Criminal Procedure) and we would advise them to use their discretion in accordance with the laws of Texas and the city ordinance,” Savaadra said.
Community members have concerns that a citation would not provide for the victim to be paid back for the damages done, Savaadra said.
“Restitution is not guaranteed. It becomes an inconvenience for the victim because they have to file for it,” he said. “They can’t file until the person is convicted. That might take some time.”
However, with the same legal process for a citation or an arrest, Baker says the issue of restitution being paid is more of an income inequality issue than a justice system issue.
“With a citation, a person has time to get their affairs in order, to potentially be in a better position to pay back the damages that they caused,” Baker said.
The citation would allow them to continue to work and arrange time off with their employer, as well as arrange child or parental care for those that have special needs family members. Presumably these people need to keep their jobs to earn the money to pay someone back.
There has also been concern about offenders not showing up for their court date. SMPD data showed that 40% of offenders who were given citations did not show up for their court date in one month, however, upon closer inspection, this figure came from 7 offenders, of which 3 did not show up for their court date. Coupled with a largely transient and student community, ineffective mail notices and the low level of the crimes committed, Baker says these numbers don't appear as troubling.
While SMPOA has concerns about officers being sued in a civil court, that does not mean that supportive council members are free of worry over unintended consequences.
California reported an increase in theft due to reduced criminal penalties and instituting a cite and release policy but no linked increase in crime. Baker hopes that there is no such increase in crime in San Marcos should the ordinance pass, but admits it would be difficult to determine cause amidst new economic pressures from COVID-19.
“My biggest concern right now would be if they stop all street diversions. That is not something I anticipated for officers to blatantly give up whatever discretion we had granted them,” said Baker.
Recently, Hays County asked police officers to use Cite and Release whenever possible to limit the jail population and prevent the spread of COVID-19 at the Hays County Jail.
The SMPOA also takes issue with the kinds of identification that the ordinance accepts, however those forms of ID are already being accepted by police officers because of another state law.
Savaadra said that SM-POA is not against cite and release, they prefer it as a resolution, “A resolution would still allow council to participate and get the data they want. A lot of officers would agree we should use Cite and Release more. We have to have everything in place to be able to use it more. I don't think we will have difficulty with officers using it more. We are finding issues with the difficulty it adds to their job.”
Baker said: “I understand the community has a spectrum of interactions with SMPD, positive and negative, and I understand their fear and their concern about having the discretion they need to make them and the community feel safe. I would not have supported this ordinance if i didn't think that is achieved.”
