Body camera video from Jan. 5 Cape Coral police TASER incident withheld during internal review

Body camera videos from Cape Coral police officers involved in a TASER incident will not be available for public view until after an internal departmental review of the use of force.

The Jan. 5 incident involved Floyd L. Wallace Jr., a Nebraska man who Cape Coral police used a TASER on outside a fire station on Burnt Store Road. Wallace said he was only trying to perform his constitutional rights.

Meanwhile, a professor of forensic studies at Florida Gulf Cost University said the officers had a legal authority to stop, detain, and investigate the incident but that the use of the TASER was not justified

Previously: Self-described First Amendment auditor Tased by Cape Coral police outside fire department

A cell phone recording of the incident was posted to YouTube

A cell phone recording of the Wednesday incident posted to YouTube shows Wallace, 26, of Omaha, Nebraska, walking in front of fire station #11 carrying a black, zippered case. Wallace recorded the incident on his cell phone.

Wallace was shot by a TASER by one of the officers during their response to a report of a man with what was described as a gun case outside the fire station.

A request made to Cape Coral police for copies of the body cam videos was declined.

An email from a city official said "The body camera worn videos are not available as a public record and are exempt. Anything beyond the arrest report is not available per the Professional Standard Bureau due to an internal review of the use of force."

The city official confirmed that the videos would be available after the use of force review was completed.

A Cape Coral police representative confirmed the department's active investigation into use of force.

Dave Thomas, a former Gainesville Police officer, senior fellow with the National police Foundation and a professor of forensic studies at Florida Gulf Cost University, said it was evident that the incident was a set-up.

"The walking back and forth, walking up to the building and walking away, and hiding behind the bushes all constitute suspicious activity whether he had the case in his hands or not," Thomas said. "The key is did the police have a legal right to be there? Was this on-view, meaning did they happen to drive up and see this and if so can they articulate the behavior independent of any witnesses that would constitute suspicious? Or did a complainant call in a complaint concerning suspicious activity? Either one of those would provide them with the legal authority to stop, detain, and investigate."

The official Cape Coral police report on the incident said that officers were dispatched to the fire station on a report from the station of a man hiding behind trees and carrying what looked like a rifle case.

Thomas said officers responding should have said so and stated exactly what the call was.

"(T)his gives them the legal authority," Thomas said. "Although it is legal to lie as an officer, it just makes everything else suspicious and makes those that you encounter more suspicious."

Thomas also said that the officer's use of the TASER was not justified since it is an intermediate weapon and the subject offered no overt threat or physical resistance and the officers had the tactical advantage.

The legality of the arrest was questioned by Thomas as well.

"The charge of resisting or obstruction are associated with another charge and are not independent stand-alone criminal charges," he said. "If there is no other criminal charge to support obstruction or resisting then the arrest is illegal. This is especially difficult when the subject complied with every command except he refused to turn around and he told the officers why."

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Wallace has been arrested a number of times in similar situations in multiple jurisdictions. On a Facebook page, Omaha Copwatch YouTube, similar videos show Wallace's activities.

"I exercise my constitutional rights," he said.

Although he declined to talk about previous incidents, Wallace said he has never been convicted and had been doing this kind of activity for a couple of years. However, coverage of Wallace's activities did include a 210-day jail sentence he served in March 2016 for a similar occurrence in Douglas County, Nebraska.

Wallace was booked Wednesday evening on a resisting arrest without violence misdemeanor charge and released Thursday morning shortly after 1:30.

His attorney on Monday filed a waiver of his Jan. 25 arraignment and a written plea of not guilty on Wallace's behalf.

Connect with breaking news reporter Michael Braun: MichaelBraunNP (Facebook), @MichaelBraunNP (Twitter) or mbraun@news-press.com.

This article originally appeared on Fort Myers News-Press: Body camera video of Cape Coral TASER incident unavailable during review