Here’s the original dash cam footage and audio from a case I handled a few years back that’s educational in several respects. Perhaps the biggest takeaway from this footage, in my mind, is towards the end of the video, where you hear a state trooper come up to the deputy sheriff who had shot my client, and inform him that he was going to be the officer investigating the shooting, and basically told him to stop talking, and to go home and sleep on it first. Indeed, once he did so, the narrative changed from what can be heard in the video.
You hear the shooter tell his version of what had occurred three times at the scene. None of which suggested that the shooting was justified. Not surprisingly, the official written statement which comes out a few days later, is nothing like what he said three times at the scene. Instead, the shooter later claimed to have seen my client with a gun before he fired.
Here are the rounds which traveled through the door.
Also, you can see the boot print from where he kicked the door:
Since this was a police shooting of someone who was not yet in police custody, the legality of the use of force is judged using the Fourth Amendment, under the “Graham Factors.” Here are the actual jury instructions which were to be used at the jury trial:
Your verdict must be for the plaintiff (and against the defendant) for violation of the plaintiff’s Fourth Amendment right to be free from excessive force if all the following elements have been proved:
First, the defendant shot the plaintiff through the front door of his home, and
Second, the force used was excessive because it was not reasonably necessary to shoot the plaintiff through his front door in order to interview the plaintiff, and
Third, the defendant was acting under color of state law.
In determining whether the force was “excessive,” you must consider: the need for the application of force; the relationship between the need and the amount of force that was used; the extent of the injury inflicted; and whether a reasonable officer on the scene, without the benefit of hindsight, would have used that much force under similar circumstances. You should keep in mind that the decision about how much force to use often must be made in circumstances that are tense, uncertain and rapidly changing.
Deadly force may be used only if it is reasonably believed necessary to prevent a significant threat of death or serious physical harm to the officer or others. A warning must be given, if possible, before deadly force may be used. You must decide whether the officer’s actions were reasonable in light of the facts and circumstances confronting the officer without regard to the officer’s own state of mind, intention or motivation. In making this determination, you may take into account the severity of the crime at issue, whether the plaintiff posed an immediate threat to the safety of the defendant or others, and whether the plaintiff actively resisted arrest or attempted to evade arrest by flight.
If any of the above elements has not been proved, then your verdict must be for the defendant. “Deadly force” is force intended or reasonably likely to cause death or serious physical injury.
This is essentially the same test which is used in criminal prosecutions of police officers for excessive force violations – i.e., Breonna Taylor, and so on. There never was a criminal charge against this particular officer. The West Virginia State Police performed the official investigation and found that the shooting was justified. Thus, our lawsuit was the only litigation connected to it. Ultimately, we settled the case – only days before trial.
Tuesday, Oct. 27 at 6pm Eastern.
The Civil Rights Lawyer explains how to handle a traffic stop – a discussion on constitutional law issues surrounding traffic stops and gives commentary on Do’s and Don’ts for both drivers and police officers during the course of traffic stops. TUE 10/27 at 6pm.
Set your reminder, notifications, and subscribe. Bring your experiences, your issues, and your questions, live for Freedom is Scary Live Episode No. 22. This will somewhat of a continuation from FIS No. 21, since so many issues arise in the context of traffic stops. Firearms, searches, lying….. lots of issues and topics.
Yesterday afternoon we filed a federal civil rights lawsuit against the police officers involved in the viral video showing police (without a warrant) forcing my client, James Walkup, to crawl to his own front door, only to have his head smashed with a boot on his front porch. If you haven’t seen the video, here it is:
This happened in the Western end of Greenbrier County, West Virginia. And here’s the filed lawsuit, now pending in the Beckley Division of the Southern District of West Virginia. We made claims for unlawful search and seizure, as well as use of excessive force. The defendants are one Rainelle, WV police officer and two West Virginia State Troopers.
Video update Part 2, providing more background and evidence in the case, and summarizing the lawsuit:
Here’s the damage to Mr. Walkup’s head:
Here’s the Rainelle Police Department officer who smashed Mr. Walkup’s head:
Here’s the West Virginia State Trooper who grabbed the phone and turned it off, and who we allege attempted to delete the video footage (which was retrieved in the trash of the phone’s “cloud”):
LIVE – Freedom is Scary Episode No. 21, on the Fourth Amendment protections, or lack thereof, surrounding police officers searching and seizing pedestrians and vehicle occupants during traffic stops.
Mentioned in the video:
“All power is vested in, and consequently derived from, the people; […] magistrates are their trustees and servants, and at all times amenable to them.”– George Mason
On “Consensual Encounters:” As a general matter, police officers are free to approach and question individuals without necessarily effecting a seizure. Rather, a person is seized within the meaning of the Fourth Amendment “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Such a seizure can be said to occur when, after considering the totality of the circumstances, the Court concludes that “a reasonable person would have believed that he was not free to leave.” Id. (quoting United States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989)). Similarly, when police approach a person at a location that they do not necessarily wish to leave, the appropriate question is whether that person would feel free to “terminate the encounter.” See Florida v. Bostick, 501 U.S. 429, 436 (1991). “[T]he free-to-leave standard is an objective test, not a subjective one.” United States v. Analla, 975 F.2d 119, 124 (4th Cir. 1992).
What is Reasonable Suspicion?
Reasonable suspicion is a “commonsense, nontechnical” standard that relies on the judgment of experienced law enforcement officers, “not legal technicians.” See Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (internal quotation marks omitted). To support a finding of reasonable suspicion, we require the detaining officer “to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.” See United States v. Foster, 634 F.3d 243, 248 (4th Cir.2011). (United States v. Williams, 808 F.3d 238 (4th Cir. 2015)).
What is Probable Cause?
Probable cause exists when the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is com- mitting, or is about to commit an offense.” – Michigan v. DeFillippo (SCOTUS 1979).
Length of Stop?
It is now settled that when a lawful traffic stop is made, “an officer … to gain his bearings and … acquire a fair understanding of the surrounding scene … may request identification of … [vehicular] passengers….” United States v. Soriano–Jarquin, 492 F.3d 495, 500 (4th Cir.2007); see also Branch, 537 F.3d at 337 (“If a police officer observes a traffic violation, he is justified in stopping the vehicle for long enough to issue the driver a citation and determine that the driver is entitled to operate his vehicle.”); United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004) (“[D]uring a routine traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation.”)….. “Additionally, ‘a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.’ ”) (quoting [963 F.Supp.2d 591] Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). U.S. v. Taylor, 963 F.Supp.2d 580 (S.D. W.Va. 2013).
In the context of traffic stops, police diligence encompasses requesting a driver’s license and vehicle registration, running a computer check, and issuing a ticket. If a police officer seeks to prolong a traffic stop to allow for investigation into a matter outside the scope of the initial stop, he must possess reasonable suspicion or receive the driver’s consent. However, “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” U.S. v. Mason, 628 F.3d 123, 131, quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009). “Direct[ing] one minute of  questioning to the passenger [of the stopped vehicle] does not alter the calculus.” Id. at 132 (emphasis in original).
Additionally, “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). That rule, the justification for which is officer safety, extends to passengers, as well. Wilson, 519 U.S. at 414–15, 117 S.Ct. 882. (United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012)).
[The officer] may take other actions that do not constitute “searches” within the meaning of the Fourth Amendment, such as conducting a dog-sniff of the vehicle, Caballes, 543 U.S. at 409, 125 S.Ct. 834, but again only “so long as those inquiries [or other actions] do not measurably extend the duration of the stop.” Johnson, [555 U.S. at 333] 129 S.Ct. .
The Civil Rights Lawyer explains how and when a citizen can sue the police for excessive force under federal civil rights law. It seems that everyone has an opinion on police use of force in recent months. In this video, I’ll explain the law of excessive force, which dictates when a justified use of force becomes an unlawful use of force and a federal civil rights violation. This has been my primary practice area the past decade or so, so I’ll point out some of the practical lessons I’ve learned along the way.
Streamed LIVE today at noon (well 12:05).
LIVE AT 12:05 today: The Civil Rights Lawyer explains “Qualified Immunity” which is widely misunderstood in the media, on social media, and in courtrooms. What is “Qualified Immunity? In this video, I’ll explain how to strip an officer of Qualified Immunity in three easy steps. Or maybe not so easy, depending on the type of case.
Qualified Immunity has been the subject of intense debate in recent years, and especially in recent months. Many commentators have criticized it as an example of the Court creating legislation from the bench, and in so doing having created a significant problem for citizens seeking to hold their government officials accountable for the violations of their civil rights.
Since I mentioned the event on the Tom Roton Radio Show this morning and referred people to this site for more information, I guess I better post some information. Don’t miss this event. This will be the 2nd LIVE video with me and Marshall Wilson. This coming Monday, October 12, 2020, from 5:00-7:00 pm we will be live in person, and live on live stream at this Youtube link:
Marshall will be taking any and all questions. I’ll make sure that he answers questions coming across Youtube as well. Actually also Facebook, once I get the link up. This will take place outside my Lewisburg, West Virginia office, located on Court Street in downtown Lewisburg, West Virginia (directly across the street from the Lewis Theater). The actual address is 860 N. Court Street, Lewisburg, West Virginia 24901.
Here’s the audio from my radio appearance this morning on the Tom Roton Radio Show:
This is a video about an encounter at the home of my client, Matt, in March of 2019, which occurred in Charmco, West Virginia, which is in Greenbrier County. It shows police arriving at his home to arrest a friend who was visiting him, who happened to have an outstanding warrant.
Matt didn’t want to be involved one way or the other. He was afraid, so he turned on his phone and began recording and he laid down. He didn’t want to get shot. But they forced him to crawl to the door on his hands and knees. When he got there, he got head-stomped by the first officer.
They didn’t know he was recording. The second officer, a West Virginia State Police trooper, noticed the phone filming, and he covered it with his hands, and turned the phone off. The officers then deleted the video footage. But it was recovered.
On with me tonight on Freedom is Scary, Episode 18, live, is Benjamin Hatfield, Esq., the Republican Nominee for Prosecuting Attorney of Raleigh County, West Virginia. Most state level prosecutors are elected politicians with party affiliations. They are enormously powerful, as demonstrated by the Rittenhouse and McCloskey cases. You can watch read here on this Youtube link, or on our Facebook page using Facebook Live. It will be simultaneously streamed to both. You can also submit comments and/or questions on both platforms.
In this video we’ll discuss what you need to know before voting for or supporting a prosecutor candidate. There is a reason George Soros is funding radical left-wing prosecutors around the country. Prosecutors hold the keys to the criminal courtrooms, and can design prosecutions to further their social justice and radical anti-gun and anti-freedom agendas – long before they reach the judiciary. Is there a difference between Democrat and Republican prosecutors? I’ll answer that question with another question: is there a difference in the Democrat and Republican platforms in regards to a law abiding citizen defending themselves, or their homes, with firearms?
This is an urgent situation for all of us now. Join me LIVE with special guest, Benjamin Hatfield, Esq., the Republican Nominee for Prosecuting Attorney of Raleigh County, West Virginia (Beckley, WV), who is running against a career Democrat prosecutor, who hasn’t had a contested election in over a decade, and who has been a prosecutor there since 1983. The law abiding citizens there are suffering.
Hatfield is a former assistant prosecutor in that county, and currently works as a civil litigation attorney at a private law firm. If you’re in West Virginia, and if you’re anywhere near Raleigh County, you may have seen some of the issues occurring there recently. You want to pay close attention to this race, and I encourage you to take a hard look at Mr. Hatfield, and then do whatever you can to help him. Because your liberty may count on it. Tune in to see why and to ask questions.
If you can send any financial help his way, donations can be sent to the “Committee to Elect Benjamin Hatfield,” PO Box 5241, Beckley, WV 25801.
Update: Here’s the article on Soros funding the Trojan Horse prosecutors I referenced in the video:
Beware Of George Soros’ Trojan Horse Prosecutors, by Pat Nolan, 9/11/20, The American Conservative
After St. Louis erupted in violence, arson, and looting, Circuit Attorney Kim Gardner ($307,000) dismissed all charges against the 36 people arrested for that violence. In the last few days eight St. Louis police officers have been shot.
At the same time, Gardner rushed to file charges against Mark and Patricia McCloskey, the homeowners who brandished (but did not use) guns at protestors who had entered the private street where the McCloskeys reside.
In Chicago, Illinois State’s Attorney Kim Foxx ($817,000) refused to prosecute rioters who violated the curfew imposed to quell the violence. “The question it comes down to is, is it a good use of our time and resources? No, it’s not.” What does she think would be a better use of her time and resources?
You probably remember Foxx. She dismissed the charges against Jussie Smollett, the actor who reported a hate crime attack against himself that turned out to be bogus. A judge removed Foxx from the case and assigned a special prosecutor who filed six new charges.
Philadelphia District Attorney Larry Krasner ($1.7 Million) announced he won’t prosecute people arrested for the violence that rocked his city for days with widespread looting and many cars torched. His excuse for not holding the mob accountable for their violence was laughable. “Prosecution alone will achieve nothing close to justice—not when power imbalances and lack of accountability make it possible for government actors including police or prosecutors to regularly take life or liberty unjustly and face no criminal or career penalty….” San Francisco District Attorney Chesa Boudin ($620,000) is the beau ideal of the Trojan Horse prosecutors. “The criminal justice system isn’t just massive and brutal, it’s also racist,” according to Boudin…. In Portland, DA Mike Schmidt ($230,000) refuses to prosecute the rioters who have burned and looted his city for over 90 days straight…..
Since 2018, Soros has made Virginia the focus of his efforts. And it has paid dividends. Trojan Horse candidates have taken over five of the largest prosecutor’s offices in the Commonwealth: Fairfax, Arlington, Alexandria, Albemarle, Portsmouth, and Loudoun.