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lowed. support of his argument that he did not inter-
fere with the Defendants’ official duties. In
To survive a motion to dismiss, Childers Carney, the Texas Court of Appeals reversed a
must allege facts that show the Defendants conviction under Texas Penal Code § 38.15 on
lacked probable cause to arrest him. the ground that the defendant’s interference
“Probable cause exists ‘when the totality of the “consisted of speech only,” which is a com-
facts and circumstances within a police offi- plete defense to a conviction under that
cer’s knowledge at the moment of arrest are statute. Carney was trying to prevent police
sufficient for a reasonable person to conclude officers from entering his house to execute a
that the suspect had committed or was com- search warrant. The court found that the
mitting an offense.’” Moreover, the defendant did not physically block the officers
Defendants are “entitled to qualified immunity from entering the house; he merely argued
if a reasonable officer in [their] position could with the officers, thereby delaying their entry.
have believed that, in light of the totality of the The court held that mere argument was insuffi-
facts and circumstances of which [they were] cient to support a conviction under Texas Penal
aware, there was a fair probability” that Code § 38.15.
Childers committed an offense—namely, inter-
fering with a police officer’s official duties. Even assuming that Childers’s truck was not
Tex. Penal Code § 38.15 (“A person commits blocking the Defendants’ entry, however,
an offense if the person with criminal negli- Carney is distinguishable based on the fact that
gence interrupts, disrupts, impedes, or other- Childers failed to move his truck when Deputy
wise interferes with . . . a peace officer while Iglesias instructed him to do so. This instruc-
the peace officer is performing a duty or exer- tion was made within the scope of the official
cising authority imposed or granted by law.”). duty Deputy Iglesias was performing: trying to
access the ranch through the gate that was
Childers principally argues that he did indisputably located behind Childers’s truck.
nothing to interfere with the Defendants’ offi- Moreover, this instruction concerned the mov-
cial duties. Although Childers concedes that ing of Childers’s truck rather than the content
he did not move his truck when Deputy of his speech.
Iglesias requested he do so, he contends that Thus, Childers did more than just argue
the Defendants could have driven around his with police officers; he failed to comply with
truck or simply walked past it to enter the an officer’s instruction, made within the scope
ranch. Childers also argues that he merely of the officer’s official duty and pertaining to
attempted to explain the situation to the physical conduct rather than speech.
Defendants, which he suggests was protected
speech under the First Amendment. See City of Texas courts have found that failure to
Hous. v. Hill, 482 U.S. 451, 462–63 (1987) comply with an officer’s instructions under
(recognizing “[t]he freedom of individuals ver- similar circumstances violates Texas Penal
bally to oppose or challenge police action Code § 38.15 and is not protected speech.
without thereby risking arrest”). Specifically, several courts have affirmed con-
victions of defendants who failed to comply
Childers cites Carney v. State, 31 S.W.3d with an officer’s instruction to move away from
392, 396 (Tex. App.—Austin 2000, no pet.), in a crime scene.
26 www.texaspoliceassociation.com • 866-997-8282 Texas Police Journal
