Another Update on the Walker Case: More New Evidence and fighting over its use

Just filed today, our attempt at supplementing our motion for summary judgment with a newly-obtained “CAD” report from the Putnam County 911 center. Originally we were able to obtain a screenshot of the video which had originally been broadcasted on Facebook Live.  As soon as we received that, we sent a FOIA to Putnam County 911 citing the exact time, date and location, and they indeed had a record of the call.

So, looking at the actual CAD sheet, we were able to determine that the original 911 call only referenced a “man with a rifle,” – not a man with an “assault rifle,” as was the testimony. And more importantly, the time was conclusively established as around 6:00 p.m., and not in the “morning,” while “school was in session.” Here was the sworn testimony:

Q. Do you remember what the substance of the dispatch call was?

A. Basically, there was a guy walking down the road with an assault rifle.

But here’s the actual record:

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Another interesting thing…. Obviously in the video, the deputy accuses Michael of being a so-called “sovereign citizen.” I asked the deputy as follows during his deposition, which is of course, under oath:

Q. You con’t know who issued that report [the 2/23/18 BOLO characterizing plaintiff as a sovereign citizen] or who prepared that report?

A. I have no idea.

Q. And you don’t know how they came to get the information that Mr. Walker allegedly has sovereign citizen behavior?

A. I have no idea.

Q. That didn’t come from you?

A. No, sir.

Q. Did you tell anyone that Michael Walker was a sovereign citizen?

A. No, sir.

But here’s page 3 of the CAD sheet record from this encounter:

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As you can see, apparently the officer radioed dispatch at the conclusion of the encounter that they would probably receive more calls on a “sovereign citizen” carrying a gun. It’s odd that they didn’t already have this document before now, in which case they would have been required to provide it to us.

It’s still not a basis for reasonable suspicion under the holding of U.S. v. Black, for someone to open carry within a mile of a school, but it shows the supposed claim of Michael being a suspected school shooter as an after-thought legal strategy. As I indicated in my questioning about the “sovereign citizen” stuff during the deposition, on 2/23/18 – two days following this encounter, Putnam County Sheriff’s Office issued a “BOLO” to other police officers accusing Michael of being a “sovereign citizen” and being armed and dangerous. Following a BOLO such as this, officers would at that point have reasonable suspicion to go ahead and disarm him and search him during any interaction under Terry v. Ohio.

Update on the Putnam Search Video Case

I’ll be in federal court tomorrow, Monday, February 3, for a pretrial hearing in the other Putnam County case with a video, and will potentially be meeting with additional witnesses afterwards, if there’s time.  If you have information, please let me know.

A few days back I had to trim the video in order to take out the local TV coverage of the task force guys, where they’re walking around the trailer park, banging on doors, etc. They claimed copyright on the footage and threatened to sick their lawyers on me.  So I just took that part down.  But I assume that you can find it on their site if you look for it. At some point, I’m sure it will be evidence of record anyways.

Since the original video was uploaded, the Putnam County Sheriff has ordered an internal investigation. Right now we’re awaiting the results of that investigation, and also proceeding with our own.

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I have personally met with investigators, and have provided them whatever they wanted out of my file.  I also made my client and an eyewitness available to them for questioning.  I also have received yet another video showing them inside an individual’s home, and I have also provided that to the investigators – with the individual’s consent, of course. Numerous other people have contacted us in regards to other situations involving this same group of guys, and I’m still in the process of speaking to them all.

Here are a few more photos which address important aspects of the situation. Here’s where the Putnam County Special Enforcement Unit cut the lock on my client’s gate at the end of driveway, before driving towards the house in a white truck, and what appears to be two black Ford Explorer unmarked police cruisers.

Here’s where the police officers climbed through the window to get inside the house.  They pushed in a window unit air condition. It was actually one of those indoor ACs, but it still requires a window unit for exhaust and drainage. This photos were taken immediately following the search.

Here’s where they yanked the surveillance camera cord. It’s of the type that has two plugs. One of the plugs was pulled out, and the other was ripped in half, leaving the connector still in place.

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How do we know it wasn’t already like that? Remember the part of the video where the guy in the SWAT outfit was walking across the bridge? (5:41 in the video) When he gets to the end of the bridge, it freezes. That’s this actual camera. And the point at which it freezes is when the damage occurs to the camera. I originally thought that camera had survived.  But no, that one was actually severed, and you see the moment it was severed.

Here’s the guy walking across the bridge:

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And here’s the exact moment that camera was disabled:

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As for what their defense is at this point, I don’t know.  But self-proclaimed “Bailiff” of the Putnam Sheriff’s Department did confront me on social media and try to set me straight on the facts, and the law. He implied that the officers entered with the landlord’s consent. The only problem with that is, a landlord cannot authorize law enforcement to search their tenant’s residence. That’s Fourth Amendment 101, which is why a search warrant is still required even to search the hotel room of an overnight guest (minus a ticking time bomb or something) They can’t just ask the hotel manager for permission to search. A warrant is still required. Secondly, the landlord was questioned very early on, and denied knowing anything about it. That may have been a lie.  But if it was, then they can point fingers at each other when it comes time to be placed under oath. But it still won’t be a defense to an illegal search by law enforcement.

As for a criminal investigation, I have no knowledge of any agency investigating them criminally.  That doesn’t mean it’s not happening. But nobody has notified myself, nor my client, of there being one. That’s why I believe it’s important to share this information with the public. In the end, the citizens should be informed of what their government is doing. Or not doing.

WV prison guard stops our client at gunpoint in Doddridge County, WV

Check out this new case. Police officer impersonation incident by a WV Division of Corrections CO / Parole officer. We met with investigators already, who were extremely concerned about what they saw here….

If you have any information, please contact us.

Update on the Walker Case (Fourth Amendment Open Carry Lawsuit)

In case you’re following along with the Walker v. Donahoe, et al. Fourth Amendment open carry civil rights lawsuit, we have a jury trial scheduled for February 19, beginning at 8:30 a.m. at the federal courthouse in Huntington, West Virginia. As of right now it’s still on.  Both sides have asked the court for summary judgment, which basically means that both sides claim to have the law completely on their side.  The court has not ruled as of yet. Pretrial documents have been submitted, including motions in limine, which are trial issues anticipated by the parties, which are best argued prior to the start of the trial.  If you haven’t seen the video of the incident in dispute, here it is:

The defendants are seeking to exclude portions of this video showing the “investigatory detention” of Michael Walker by the Putnam County Sheriff’s Department.  Not surprisingly, they want the part of the video where the police officer calls Michael a “co*ksucker,” repeatedly, among other things to be kept away from the jury.  Here’s their argument:

Also not surprisingly, we strongly disagree.  Here’s our response.  The judge will decide at some point, and generally has the broad discretion to control the flow of what the jury gets to see, and what they don’t:

We also filed a few motions in limine of our own, including our attempt at stopping the defendants from bringing up the Parkland school shooting, which they have announced is their attention, and which has absolutely nothing to do with the case.  They are also seeking to make the case that because Michael had an AR-15 style rifle, that a reasonable officer could suspect him of being a potential school shooter, or something to that effect.  Which is of course highly offensive, and antithetical to both the Fourth Amendment and the Second Amendment to the U.S. Constitution:

In case you’re curious about the current status of laws pertaining to the open carrying of firearms in West Virginia, check out the last post I did on it.  It should still be the same. Of course, this case could change that if it doesn’t go our way…..

Update on the Drug Task Force Civil Rights Lawsuit out from Fayette County, W. Va.

Here’s an update on the Fourth Amendment civil rights lawsuit we filed in the Sizemore case, which involved a federal criminal prosecution which was dismissed following a federal judge making a finding that officers in the Central West Virginia Drug Task Force made false statements to a magistrate in order to illegally procure a search warrant. We filed suit to establish civil liability for a violation of the Fourth Amendment, which specifically requires probable cause and a search warrant.

Well, we made it past the defendants’ motions to dismiss, and now we are proceeding to the discovery stage, which is essentially the exchange of information and the questioning of witnesses via depositions. The federal court denied the motions, and has ruled that we get to proceed.

You can look back at my last update to read their argument, as well as our response.  As I predicted then, it didn’t turn out as they expected.

From the order:

First, I must note this Court is at a loss to understand Defendants’ assertion that because this case involves “a search warrant, rather than an arrest warrant,” it therefore “does not require a showing of probable cause.” Defs.’ Mem. Mot. Dismiss [ECF Nos. 6, 9]. More confusing, Defendants cite favorably to Illinois v. Gates, 462 U.S. 213 (1983), a case which describes the standard for probable cause in a search warrant. Though puzzling that this is necessary to explain to a member of the bar, “the Fourth Amendment requires that no search warrant shall issue without probable cause.” United States v. Daughtery, 215 F. App’x 314, 316 (4th Cir. 2007).

Indeed, the text of the Fourth Amendment, which has been in place since the adoption of our Constitution and Bill of Rights, states that individuals have the right to be protected “against unreasonable searches and seizures,” and “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV (emphasis added). And a search and seizure without probable cause is unreasonable. Miller, 475 F.3d at 627. This is especially true for searches of the home, which “is first among equals” regarding the Fourth Amendment. Yanez-Marquez v. Lynch, 789 F.3d 434, 464–65 (4th Cir. 2015) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)).

Yep. It says “probable cause” in the Constitution. Hard to get around that…..

 

As previously explained, Defendant Morris violated Plaintiffs’ Fourth Amendment protections. Thus, the next question is whether the violated right was clearly established at the time of the events in question. “[I]t has long been established that when law enforcement acts in reckless disregard of the truth and makes a false statement or material omission that is necessary to a finding of probable cause, the resulting seizure will be determined to be unreasonable.” Gilliam v. Sealey, 932 F.3d 216, 241 (4th Cir. 2019); see Franks, 438 U.S. at 157.

As the Fourth Circuit has explained, “a reasonable officer cannot believe a warrant is supported by probable cause if the magistrate is misled by statements that the officer knows or should know are false.” Miller, 475 F.3d at 632 (quoting Smith v. Reddy, 101 F.3d 351, 355 (4th Cir.1996)).

Putnam County Creepy Task Force Search Video

Just in case you haven’t seen this making the rounds yet, I uploaded this to Youtube. It’s too big for this site, and I’m done hosting videos directly to Facebook, because they censor everything these days.  The video is pretty self-explanatory.  We will be filing a federal lawsuit.  If you know something, or you have a video of your own, or a similar incident, please let us know.

Update on the Sizemore “search and seizure” civil rights case

Here’s an interesting, and academic (for Constitution nerds), update on the Sizemore federal civil rights lawsuit, which had been in the news recently.

This is the one where the drug “task force” had found heroin in the client’s home, but the case was dismissed after a federal judge found that the officers had made numerous false statements to the magistrate in order to get the search warrant.  This is also actually the case I last posted about, since I haven’t been posting much on here lately.

Should the fact that officers were found to have made false statements under oath to get a fraudulent warrant, have been allowed to go away quietly since drugs were actually found, or should something have been done about it?  The news media wasn’t happy about it, necessarily, but I elected to do something – heroin or no heroin.  And here’s why:

Either “equal justice under the law,” etched into the walls of the Supreme Court, is just decoration, or it actually is enforced and put into practice.

Here is the response brief we just filed to some of the defendants’ motion to dismiss.  I really enjoyed writing this one, because it was as if I were back in my old baseball days, and being a kid who was bigger than most, the pitcher gave me an underhand slow pitch, just begging me to hit it out of the park.  Maybe I’m missing something, but I don’t think so.  I really look forward to reading the outcome of this one.  I don’t think it’s going to turn out like they had hoped . . . .

 

Here is the motion to dismiss the defendants filed:

 

Here is the original Complaint itself: