Mayor Sandy Stimpson asked Police Chief James Barber to evaluate an incident in which an “upstanding member of the Mobile community” was detained for questioning and later arrested for disorderly conduct Feb. 1, shortly after he set off to walk his dogs and pick up trash in his midtown neighborhood.
According to Stimpson’s Chief of Staff Colby Cooper, the administration reached out to Tom Herder after the story of Herder’s arrest quickly spread on social media.
Herder, the watershed protection coordinator for the Mobile Bay National Estuary Program, said he was walking his dogs and cleaning trash out of the gutters Saturday morning when two officers with the Mobile Police Department approached him.
“They asked what I was doing and perhaps I gave a sarcastic answer, but I’m standing there with a bag of trash, a bag of dog sh*t and my hand-picker and they wanted to know why I wasn’t carrying an ID,” Herder recalled later. “I gave them my name, my phone number, my address and social security number and they asked me to put my hands on the car.”
Herder, an outspoken ex-Marine, said he was “not happy” with the sudden interrogation but “not belligerent” either. He said he complied with the officers’ requests.
“He told me there was a rash of robberies and they were supposed to be checking everybody,” he said. “I said, ‘Do I look like a burglar? You’re three blocks from my house.’”
Nevertheless, one officer forcibly “kicked his ankles apart,” frisked him, handcuffed him and briefly detained him in the back of a police car.
“We were going back and forth and I may have cursed at him some,” Herder said. “He said he didn’t like my language and attitude and I said I didn’t like being searched and detained in my own neighborhood.”
Herder said he was released and started home. Along the way, he warned a passerby that the police were interrogating people.
“That’s when their lights went on and they told me I was under arrest,” he said. “Suddenly there were three cop cars there and five or six other guys and I was thinking a Sergeant would come up and let me go, but they were just there having a bully convention. They were talking about throwing my dogs in the pound.”
Herder, who said he felt one officer in particular was acting like an instigator, was charged with disorderly conduct and booked in Mobile Metro Jail. A neighbor retrieved his dogs from the scene and paid his $300 bond within a couple of hours.
Incidentally, Herder wasn’t the only person detained that day. Just before Herder’s arrest, local attorney Ginger Poynter received a Facebook message from an acquaintance who had been detained while riding his bike through the same area. Apparently the cyclist, who lacked ID, was also searched.
“The officer told him it was a Terry-pat and he wanted to search him for their own safety,” Poynter said. “He refused, but they did it anyway. The law is you need reasonable suspicion to request a search, they can’t just stop you for any reason. You’re not required to carry ID and refusing a search is not suspicious.”
Poynter, who practices criminal defense, said she has heard stories from black clients for years about similar policing tactics in other parts of town. Speaking about profiling in general, she said, “Maybe if you look like you don’t belong there, they can find out what you are doing there, but a white guy picking up trash and walking his dogs in midtown? Would that raise any suspicions to you?”
By definition, a “Terry-pat” or “Terry-stop” is the brief detention of a person by police if there is a reasonable suspicion the person has been involved in criminal activity. It gets its name from a Supreme Court case out of Ohio, in which the technique was upheld.
“A Terry-pat doesn’t allow police officers to pat you down for any reason,” she said. “If you’re stopped, they have to believe you are armed and dangerous or about to commit a crime. There are some exceptions like if the officer was by himself and felt threatened. But in this situation, there were two young officers against a 58-year-old man — they are trained to take abusive language. Under the circumstances, it looks like a complete violation of Fourth Amendment rights.”
Poynter said Herder’s language would have only risen to the standards of disorderly conduct if it had included “fighting words.” Herder insists it didn’t.
“I came home and googled it,” he said. “I’m allowed to swear.”
Cooper said contacting Herder after the arrest was “the right thing to do.”
“Tom is someone both the mayor and I know to be an upstanding member of the Mobile community,” he wrote in an email. “We saw the traffic on social media detailing Tom’s incident and we asked Chief Barber to look into it from the MPD side. We communicated to Tom that we had engaged the Chief and we would work to understand the facts behind the incident.”
Herder said he had not had further communication with the police department and was exploring his legal options prior to a March 10 court date.
Poynter said she would be interested in how Chief Barber responds.
“Id be surprised if [the arresting officer] even showed up for court,” she said. “They’ll probably let it die a quiet death, but Tom still had to bond out and can’t expunge his arrest record and as far as I can tell it was an illegal arrest. If they tried to defend it I’d sue.”
The Mobile Police Department has withheld a request for comment.
This article was updated to include a legal description of a “Terry-pat” and clarify remarks by Ginger Poynter.