a false arrest

Affidavit of Denise Mcvea/RMSJ/SA-14-CA-0073-DAE

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

DENISE MCVEA,

Plaintiff;

v.

JOSEPH SWAN, ET AL, Defendants.

CASE NO.

SA-14-CA-0073-DAE

__________________________________________________________________________

AFFIDAVIT OF DENISE MCVEA IN SUPPORT OF PLAINTIFFS RESPONSE TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT

_________________________________________________________________________

STATE OF TEXAS ) ) COUNTY OF BEXAR ) BEFORE ME, the undersigned notary, on this day personally appeared DENISE McVEA, the affiant, who, being by me duly sworn, deposed as follows: 1. My name is Denise McVea. I am above the age of 18 years, of sound mind, and capable of making this affidavit. I am the Plaintiff pro se in this cause of action. The facts stated in this affidavit are within my personal knowledge and are true and correct. The facts set forth herein would be admissible in evidence and I certify that I am competent to testify on the matters stated. A. Personal Background 2. I am a resident of Bexar County. I am a publisher, writer, historian, and human rights advocate. I graduated in 1990 from Texas Womans University with a Bachelor of Science degree in Journalism. After graduating from TWU, I worked as a general assignment reporter for newspapers in Oregon and Texas. I have written hundreds of articles for numerous magazines and newspaper as a staff writer and freelance writer. My specialty is in investigative, public interest journalism. I am a past recipient of several national journalism awards, and the author of two heavily researched non-fiction books: Power Plays: The Poor Peoples Guide to fighting City Hall (2004), and Making Myth of Emily: Emily West de Zavala and the Yellow Rose of


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Texas Legend (2006). In 2010, I was named a quarter-finalist in Francis Ford Coppolas Zoetrope Virtual Studio National Screenplay Writing Contest. I believe in the literature of exposure, and I view my life purpose as giving voice to those whose voices have been stifled or otherwise oppressed. 3. In 1998, I emigrated to Guanajuato, Mexico, where I worked as publisher of La Farola, a bilingual cultural magazine, and taught English at the University of Guanajuato. In 2003, I was selected as a New Voices Fellow in Human Rights and International Cooperation, where I worked for two years as a communications fellow with the Indian Law Resource Center in Helena, Montana. My purpose at the Indian Law Resource Center was to inform national and international media outlets about the human rights issues affecting Indian tribes and indigenous peoples in the Americas. In 2004, I formed the Auris Project, a 501c3 non-profit whose mission is to help poor and otherwise marginalized communities gain access to key rights and development information. After several years of running successful international programs in Central Mexico, and wishing to develop the organization further, I relocated to San Antonio, with the intention of focusing Auris Project empowerment and information programs on the citys historically disenfranchised Eastside. We supported our work in part with program fees, an online bookstore, donations, and 100 percent of the proceeds from Making Myth of Emily. 4. In 2008, I took legal possession, pursuant to Tex. CP. Code Ann. 16.026, of 1614 Martin Luther King Drive, an abandoned property located in a depressed Eastside neighborhood. Prior to our possession, the property was a notorious crack house and drug den. Our objective was to reform the property into an information center and library for the poor residents of the area. Between 2008 and 2013, we spent thousands of dollars to rehabilitate the building. At the same time, we continued to receive donations from San Antonio residents wanting to assist our programs in Mexico. However, the upsurge in cartel related violence in Mexico prevented us from traveling across the border. We elected to have a sales and information event on January 21, 2013, Martin Luther King Day, at the site of the proposed information center. At all times during the event, the Auris Project was a business entity in good standing to conduct business in Texas. Our purpose on the day of my arrest was to introduce the Auris Project to the marchers participating in the MLK Day March, to sell donations and books from our bookstore, solicit volunteers for future activity, and to celebrate civil rights in America. B. The Incident 5. On January 21, 2013, I began working on setting up the event around 6:30 a.m. with two volunteers, Tedi Butolph and a young pregnant woman named Jennifer. I do not recall Jennifers last name and records of past volunteers were illegally


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seized from the property in a related incident. The three of us were working together on placing items on the property of the proposed information center when a drunken vendor across the street began playing loud music and making lewd gestures to the volunteers. Either a volunteer or I called police to make a noise complaint. 6. San Antonio Police Department Officer Joseph Swan was the first to arrive. He began immediately demanding to see a permit for the garage sale from my volunteers. I approached him and politely explained several things. First, I explained that this was a business event and that the items were the property of my organization. Second, I explained that the property he was standing on was not being used as a residential property, but as a commercial property, and that garage sale permits could not be acquired for use at places of business. Third, I explained that my organization was a corporation registered with the state and as such was permitted to conduct its business without undue interference from police. At all times in my conversation with Officer Swan, I was polite and professional. It was a challenge however, because Officer Swan was belligerent, frequently interrupted me, and repeatedly cited legal justifications that I knew had no basis in fact. For instance, at one point, Office Swan told me that SAPD police officers had discretion to close down any event for any reason and that police officers had discretion to make law. Unable to reason with him, I asked to speak to a supervisor. Within minutes, SAPD Sgt. Daniel Scott arrived, and I repeated to Sgt. Scott what I had explained to Officer Swan. Sgt. Scott was mild-mannered and spoke in a low, modulated voice the entire time we interacted. At no time did I raise my voice to any of the officers on the premises. By this time, at least five officers in three different police cars had descended on the scene. I remarked that it seemed strange that so many officers had answered a noise call, but not one officer had asked the person across the street to turn down his music. 7. I continued to express to Sgt. Scott that a garage sale permit would not only be inappropriate for the MLK event, but also that it would be unlikely that I would even be able to procure a permit because the event was occurring at a place of business and not at my residence. I further explained that a primary purpose of the citys garage sale permit program was to dissuade residents from running yard sale businesses from their home. Sgt. Scott asked to see my drivers license and I provided it to him. The address of my home was different from the address at which the event was taking place. Sgt. Scott then asked to see business documents. I explained to him that, because we were not daily at the information center, I kept business documents secured at my home, but that I would look to see if I had something with the Auris Project name on it. He followed me into one of the buildings and I showed him a check with the Auris Project name on it. He told me that was not enough. I then asked him point blank if he had been trained by the Secretary of States Office or the State Comptrollers office and he said no. I asked him what specific business document he would need to see so that he and the other


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officers would go away and leave us to conduct our business. He told me he did not know and that he would have to consult with code enforcement and the station. I told him that the code enforcement department was typically closed on Martin Luther King Day. I saw him go to his vehicle. 8. When he returned, Sgt. Scott told me that he had spoken to a guy at code enforcement and that he was going to issue me a citation. I asked him again what business document I needed to show him but he ignored the question. I asked for the name of the person he allegedly spoke with, but he told me he did not remember it. I expressed doubt at that time that he had spoken to anyone at code enforcement because I knew city departments were closed. I have attached to the instant motion the city department holiday schedule for 2013, as outlined in its FY budget for that year. 9. Sgt. Scott then instructed Officer Swan to issue me a citation. He turned to me and said that I was being issued a citation and that I would have to sign the citation and return all of the items to the building, in essence shut down my business event. I told him that I had no problem with signing the citation, but that I would not shut down the business event. Sgt. Scott told me that if I signed the citation, that I would be agreeing to shut down the event, and move all of the items, -- books, clothes, furniture, sporting goods, electronics, etc. back into storage. I reminded him that the police had no jurisdiction over business events that were not criminal in nature, and asked him again what criminal code gave him the authority to seize my property and call for my arrest. He continued to ignore the question. He told me then that if I signed the citation but refused to restock our items and discontinue the event, I would be arrested. I told him that the demand amounted to coercion, was an unlawful seizure, and that I would not comply. Scott then ordered Swan to arrest me. While I stood helplessly handcuffed, I heard Scott turn to my workers and tell them that if they did not clear out this junk in 15 minutes they also would be arrested. I sat in the squad car watching officers haranguing my workers, standing over them and badgering them to hurry up and finish. I suffered a severe panic attack in the squad car when I tried to yell instructions to my struggling volunteers, who were standing just a few feet away, and discovered that the squad car was soundproof. C. The Detention 10. Swan then transported me to the San Antonio Municipal Detention Center at 401 S. Frio Street, San Antonio, Texas. When we arrived in the parking lot of the detention center, Officer Swan sat idling the vehicle for about 15 minutes. I asked him what he was charging me with. He responded, failure to sign citation. He then took me inside the detention center where I was booked, photographed, and required to turn over my shoelaces. Officer Swan provided me with a Magistrate Services/Detention Center Arrested Person Registration Property Form to sign. A


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copy of this form is attached to this affidavit and motion and I certify that the copy document is a true and correct copy of the document that I received from Officer Swan on January 21, 2013. In reviewing the form, I noticed that under Charges, Swan had notated that I was being arrested for a Class A/B Misdemeanor, and notated the specific charge as Sec. 16.296. When I later researched that code through the citys online Municode database, I learned that Sec. 16.296 was an administrative code, not a criminal misdemeanor code. 11. However, Swan continued with the arrest. When the booking officer asked under what charge I was being arrested, I heard him tell her that he arrested me because I did not have a garage sale permit. I saw the detention officer look at him incredulously. Her incredulous expression made me laugh. My mug shot was taken and I was then placed in a holding cell with other inmates. I watched Officer Swan walking around talking to various detention center employees, and then watched him go into a room where I saw him sit at a small desktop. I then lost sight of him. 12. Several hours later, a detention officer approached our cell and told us that the magistrate had arrived. We were led outside of the cell and told to stand in line until it was time to go into the magistrates court. However, as the line of inmates began filing into magistrate court, I was pulled out of line, directed to the booking desk, handed a court summons and released. The detention officer releasing me told me jokingly, Next time, sign the citation. I told him then that I did not sign the citation because the arresting officers had imbued the request (and threat of arrest) with illegal pressure for me to consent to an unlawful seizure of my material effects. He did not reply. D. The Prosecution 13. Even though the City of San Antonio refused to permit me to see a magistrate, it nevertheless pursued a misdemeanor prosecution of me in municipal court. On January 21, 2013, a detention center employee handed me a form entitled Case Disposition Orders, which falsely stated that (o)n 1/21/13, you appeared before a judge at the City of San Antonio Municipal Court; listed below are the Judges Orders: [] Appearance Court You are hereby notified to appear in Court #7, City of San Antonio Municipal Court on 2-26-13 at 8:00 a.m. on the cases listed in the appearance court column on the back of this form. A copy of this form is attached to the instant motion and I certify that the attached document is a true and correct copy of the document that I received from detention personnel upon my release from the San Antonio detention center on January 21, 2013. 14. On February 26, 2013, I appeared in municipal court. While waiting for my cause to be called, I witnessed city prosecutors calling other defendants ostensibly to have their cases heard. When the defendants answered, they were led into one of two rooms outside of court. I personally thought this was very odd, because the


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judge was present in the courtroom. After a while, a young female prosecutor called my name. She led me to a small room and told me to sit at a table. She then told me that she was not my lawyer and that she did not represent me and asked me how I wanted to pay my fine. I told her that I did not feel comfortable speaking to her when I had never been arraigned or presented to a magistrate. I told her I protested being examined by a prosecutor off the record and outside of the presence of a judge who was present and able to hear my plea. Neither Swan nor Scott nor the prosecutor informed me of any of my rights, including my right to have an attorney appointed to me if I could not afford one. I requested a jury trial. 15. My trial was noticed for March 25th, 2013. Because I could not afford an attorney and because I had not been permitted a hearing where I could request a court- appointed attorney I elected to represent myself pro se. On the day of trial, both Officer Swan and I entered the courtroom. Officer Swan had a folder and sat at the back of the room. I had prepared thoroughly for the trial. As evidence, I brought the Auris Project account status certification from the Texas Secretary of State, a web advertisement for the Auris bookstore, a copy of Municode Sec. 16-292 that defined personal property as:

Personal Property shall mean property which is owned utilized, and maintained by an individual or members of his or her residence and acquired in the normal course of living in or maintaining a residence.

16. I also brought as evidence a screenshot of the citys own code enforcement website, which clearly stated that the garage sale permit is required for premises zoned or used for residential purposes. However, on the day of the jury trial, no record was ever opened. Outside of Officer Swan, a few other SAPD officers, court personnel, and me, the courtroom was completely empty. Although several persons I believed to be city prosecutors entered the courtroom from behind the bench several times to stare at me, none of them ever engaged me in conversation. After some time had passed, the court administrator called me up to the bench and handed me a document titled Dismissal After Motion by Prosecutor. The dismissal stated that The Court, having duly considered said motion is of the opinion that said cause should be dismissed for the reason that: Insufficient Evidence. To my recollection, the judge of the court was not present in court at the time. I am, however, certain that at no time during the prosecution of my alleged misdemeanor garage sale offense did any Bexar County judge or magistrate take my plea, read me my rights, explain the charge against me, or hear arguments or evidence related to my case. No court transcript record, Cause Number B1468927-01, was ever opened at any time. 17. On January 20, 2015, I accessed for the first time the San Antonio Municipal Courts online records search utility located at:

https://www/municipalrecordssearch.com/sanantoniotx.


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Prior to January 20, 2015, I was unaware of the municipal courts online records search utility. I found it while preparing my response to Defendants motions for summary judgment. When I opened the online information page for Citation B1468927-01, I was shocked to learn that the City of San Antonio records indicated that prosecutors dismissed this case as part of a plea bargain. At no time did I accept, negotiate, agree to, or have any interest in any plea bargain with city prosecutors. A printed copy of the page is attached to the instant motion. 18. I was very emotionally distressed, upset and disturbed by the police actions on January 21, 2103. That distress was compounded by the actions of the city personnel I encountered after the arrest. When I returned to the MLK site, I found many items had been broken because of the hasty fashion by which they were thrown into structures. I also lost much needed revenue and community assistance that day that was sorely needed to sustain the organization and my efforts to weather subsequent attacks against my economic and personal welfare. The arrest left me feeling completely and utterly violated. The arrest affected my ability to sleep, caused me anxiety, cost me financially in a devastatingly ballooning way and I continued to experience a profound sense of insecurity because of the actions taken by the San Antonio Police Department. It was devastating to be handcuffed and arrested in front of hundreds of people who we had been preparing so diligently to reach out to. As Swan drove me away handcuffed in the back of his squad car, I remember looking out the window at the crowd. I saw three distant cousins, between the ages of four and six, staring in confusion and horror at the police car from their perch on the sidewalk along the MLK parade route.

FURTHER AFFIANT SAYETH NOT.

x. ____________________________________ DENISE MCVEA

BEFORE ME, A NOTARY PUBLIC, on this day personally appeared DENISE MCVEA, whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein contained are true and correct.

x. ___________________________________ NOTARY PUBLIC

My commission expires on _________________.

a false arrest

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