Virginia Jury Awards Damages Against Officers for Civil Rights Violations

Today’s video is about Matthew Souter, who owns a farmhouse in The Plains, Virginia. He ended up being unlawfully arrested and tased by police officers in his front yard. Back in November of 2018. He rented a bedroom and bathroom in his home to Melissa Johnson. Following a dispute about her cat and an electric hotplate, she went to a local court and obtained an ex parte Emergency Protective Order (“EPO”) against Mr. Souter, which restricted him from “acts of violence, force, or threat of criminal offenses resulting in injury to person or property” of Johnson.

The next day, November 10, 2018, Johnson called the Fauquier County Sheriff’s Office and reported that Plaintiff had violated the EPO by terminating the electric and water service to her bedroom and bathroom. She spoke with a deputy who took her complaint and classified it as a “civil matter.” Not satisfied with that, she called again later the same day. This time she spoke with a different deputy, who was dangerously incompetent. He ended up applying for an arrest warrant against Mr. Souter, alleging a violation of the EPO. There in fact was no violation – nor any reason for him to believe that Mr. Souter had committed any crime. But, he obtained an arrest warrant. 

This deputy and his supervisor then traveled to Mr. Souter’s home with an arrest warrant. The deputies seized Mr. Souter. I spoke with Mr. Souter on the phone and he denies resisting this arrest. However, in a subsequent ruling, the federal court wrote that it was undisputed that he resisted arrest. This is what the Court found, specifically: “Plaintiff resisted arrest and did not permit the officers to handcuff him. The officers then wrestled the Plaintiff to the ground, while Plaintiff continued to resist the officers. McCauley then used a taser to subdue the Plaintiff. After Plaintiff was tased, the officers were able to handcuff the Plaintiff.” Mr. Souter was tased multiple times and was bleeding. He was taken to a local hospital emergency room. 

The officers subsequently charged Souter with the underlying EPO violation, as well as attempted fleeing from a law enforcement officer. The EPO charge ended up being dismissed by the prosecutor, and he was found not guilty of the fleeing charge following the criminal trial. 

Then Souter filed a federal section 1983 civil lawsuit. Here’s the complaint his lawyer filed:

Fast forward in the litigation, and something pretty unusual ended up happening. The federal judge – Judge Ellis – in the Eastern District of Virginia, not only denied qualified immunity to the officers, but granted summary judgment in favor of the Plaintiff. That means that the Court found that Mr. Souter’s civil rights were violated, as a matter of law, and that the only issue for the jury to decide is the amount of money damages to be awarded. 

Why did the officers lose qualified immunity, as well as the opportunity to even oppose liability in front of the jury? In short, because they acted such utter incompetence. The Fourth Amendment protects against citizens being unlawfully arrested by law enforcement. An unlawful arrest is one that occurs in the absence of probable cause. Police officers can be held civilly liable for a false arrest “if it would have been clear to reasonable officers in their position that they lacked probable cause to arrest” Plaintiff for violating the cited law. Graham v. Gagnon (4th Cir. 2016).

The officers aren’t required to be actually correct in their probable cause determination, but rather reasonable in their probable cause determination. Here’s the Court’s full opinion:

In this case, all the officers knew is the allegation that the Plaintiff had cut off Johnson’s water and electric service. There was no reasonable basis for them to conclude that the Plaintiff had engaged in any act of violence, force, or threat, against Johnson. Thus, if they believed Plaintiff had done any of those acts, such a belief would have been clearly erroneous and unreasonable. 

The arrest warrant the officers obtained alleged violation of a domestic violence type of protective order, which did not exist in this case. No such domestic violence type of protective order had been issued against the Plaintiff, as would be obvious on the face of the actual EPO served on the Plaintiff. Moreover, even if Plaintiff had been served with a domestic violence protective order, cutting off water and electric do not constitute acts of violence, as defined in the EPO. Therefore, Plaintiff’s conduct could not have led a reasonable law enforcement officer to conclude that probable cause existed or that his arrest was proper. Thus they violated his constitutional rights when they unlawfully arrested him (and used force to effectuate that arrest) in the absence of probable cause. 

The illegality of Plaintiff’s arrest taints the defendant officers’ subsequent actions and renders them liable for Plaintiff’s excessive force claims. Under federal law, “the Fourth Amendment prohibition on unreasonable seizures bars police officers from using excessive force to seize a free citizen.” Jones v. Buchanan (4th Cir. 2003).

Let’s fast forward to the trial results. The jury ended up awarding a total of $50,000.00 in compensatory damages to Mr. Souter. Here’s the jury verdict form:

In my phone conversation with Mr. Souter, he was actually very unhappy with the verdict, both in the amount of $50,000.00, as well as the lack of a punitive damages award. He took issue with how the presentation of the damages claim was presented to the jury at trial.

For many reasons, people many times have unrealistic expectations on the value of damages in civil rights cases. At the end of the day, a jury decides these things. This can vary wildly depending on a number of factors, including the personalities of the parties, as well as the jurors themselves. I wasn’t at this trial, so I really have no idea what dynamics were present in the courtroom. But this illustrates one of the difficult parts of the job of a civil rights lawyer. Ultimately you have to convince a jury to award money damages. How do you do that? It can be very difficult, and sometimes emotion is all you have, assuming you can instill it in the hearts of the jurors. 

There’s a form instruction in section 1983 cases that says something to the effect of, if you find that the plaintiff’s civil rights were violated, you must at least award $1.00, even if you find that the plaintiff suffered no actual damages. The value of constitutional injuries can vary wildly based on who is on the jury. But there’s also a federal law, 42 U.S.C. Section 1988, which provides for an award of reasonable attorney fees following a finding of liability. That means that even if a jury awards One Dollar, there could potentially be an attorney fee award of six figures. 

Doxxed by a Senator: Free Speech Retaliation by Public Officials

I want to expand on the legal issues presented in yesterday’s video a little more. Yesterday I posted a video on the issue of warning fellow motorists about a speed trap via flashing the lights on your car. If that is protected speech, and as a result of that protected speech, you get pulled over, harassed, arrested, or so on, at that point you may have not just a Fourth Amendment violation, but also a First Amendment violation. More specifically, the cause of action in federal court is called First Amendment Retaliation. It’s a violation of your First Amendment rights to suffer retaliation as a consequence of exercising your rights. This area of the law can be extremely murky. But it can also be straightforward. Like everything else in federal constitutional law, it’s highly fact-dependent.

This can be illustrated by a case I litigated, which pre-dated my Youtube channel, so you won’t find it there – at least before now. Imagine that a private citizen, riding in his work delivery truck, through the West Virginia countryside, sees a vehicle come barreling around him on a stretch of road with a double yellow line, going into a curve. This is filmed by the citizen with his cell phone. He recognizes the vehicle as that of his state senator. He then posts the video to social media, showing and denouncing the senator’s actions to his social media friends. But the senator has his own social media following, which is exponentially larger. In response to the citizen’s video, that senator with a large social media following goes on a rant against the citizen, calling him names, and also then identifying his place of employment – doxxing him, essentially. But he didn’t stop there.

Large numbers of § 1983 complaints allege free speech retaliation claims. These claims frequently give rise to difficult legal issues and sharply contested factual issues. The majority of these claims are asserted by present and former public employees. First Amendment retaliation claims are also asserted by government contractors, individuals subject to criminal prosecution, prisoners, and landowners, among others.

As a general matter, public officials may not respond to “constitutionally protected activity with conduct or speech that would chill or adversely affect [t]his protected activity.” Balt. Sun Co. v. Ehrlich , 437 F.3d 410, 416 (4th Cir. 2006). That is so “even if the act, when taken for different reasons, would have been proper.” ACLU of Md., Inc. v. Wicomico Cty ., 999 F.2d 780, 785 (4th Cir. 1993).

To succeed on a First Amendment retaliation claim, a plaintiff must show: “(1) [the] speech was protected, (2) the alleged retaliatory action adversely affected [the] protected speech, and (3) a causal relationship [existed] between the protected speech and the retaliation.” Raub v. Campbell , 785 F.3d 876, 885 (4th Cir. 2015).

However, a plaintiff must allege the violation of a federal right by a person acting under color of state law. Public officials can theoretically act both under color of law, as well as a private actor not under color of law. The defendant acts under color of state law if he is “a state actor or ha[s] a sufficiently close relationship with state actors such that . . . [he] is engaged in the state’s actions.” Cox v. Duke Energy Inc., 876 F.3d 625, 632 (4th Cir. 2017). Put simply, the defendant acts under color of state law when he “exercise[s] power possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law.” Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019) (internal quotation marks omitted). 

“[T]here is no specific formula for defining state action under this standard.” Rather, Courts evaluate “the totality of the circumstances.” Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006). “If a defendant’s purportedly private actions are linked to events which rose out of his official status, the nexus between the two can play a role in establishing that he acted under color of state law.” In addition, “[w]here the sole intention of a public official is to suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state.” 

In my case, this was the big issue. The senator’s lawyers filed a motion to dismiss. The federal court ended up denying that motion to dismiss, ordering the case to proceed. The Court pointed out that the state senator posted his response video on his official campaign Facebook page that he was using to both share information with his constituents, as well as to campaign for Congress. Thus the social media account generating the alleged retaliation was closely connected to official activities. 

Using that official account and social media following, the Court concluded that an inference was supported that the state senator was using his official position to pressure my client’s employer to fire him. Moreover, the Court found a causal connection between the response video, as well as the phone call to the employer, and my client being fired. He ordered the case to proceed and a subsequent settlement ensued.

Police Harass Innocent Citizens on Their Porch – Lawsuit Filed Today

What you’re about to see here is outrageous body cam footage that has never before been seen by anyone, other than law enforcement. It shows what happened to my clients, Jason Tartt, the property owner and landlord, as well as Donnie and Ventriss Hairston, his innocent and mistreated tenants, on August 7, 2020, when they were subjected to civil rights violations by two deputies with the McDowell County Sheriff’s Office, Dalton Martin and Jordan Horn. 

Today we filed a federal civil rights lawsuit, which is posted below. But you can watch the footage for yourself. Before the body cams were turned on, what you need to know is that there was a complaint received that an abandoned church, in an overgrown parcel of land not owned by any of these individuals, apparently had four marijuana plants growing there, among the thick brush. Crime of the century, right? The perpetrators must be one of the elderly African American residents nearby, of course. Instead of treating them as human beings, let’s accuse them first thing, then mistreat, harass, and retaliate against, them if they dare to get uppity, or not know their place. 

Donnie and Ventriss Hairston were sitting on the front porch of their rural home, when two deputies approached and began to harass and intimidate them. Their landlord, who lives next door, joined them shortly afterwards and began to ask questions. When they asserted their opinions and rights, retaliation ensued. The landlord, Jason Tartt, was seized and arrested. The Hairstons were shoved into their home against their will. This is never before seen footage, outside of law enforcement of course. Take a look and form your own opinion about what happened.

Here’s the footage:

Here’s the lawsuit:

Stay tuned for updates….

Cop Sues Partner for Excessive Force For Missing the Suspect and Hitting Her

On the morning of July 20, 2020, rookie Cleveland Police Officer Bailey Gannon shot his partner. Screaming as he fled in panic down a flight of stairs from a man who was neither chasing nor threatening him, Gannon pointed his gun over his head—in the opposite direction he was running— and began firing blindly behind him. One of his bullets hit his partner, whom he had just run right past. 

That was the opening paragraph in a federal civil rights lawsuit just filed by Cleveland police officer, Jennifer Kilnapp, against her former partner, as well as the City of Cleveland. So this is a police shooting case – an excessive force case – from one cop against another cop. Can a police officer, who is unintentionally shot by another police officer, sue the government for a civil rights violation? Unfortunately, I can answer that one. But first, here’s a portion of the body cam footage. 

The bullet that struck Officer Jennifer Kilnapp ended up lodging in her spine. Investigators almost immediately concluded that it was probably Officer Gannon who had shot his partner. Despite that knowledge, the Cleveland Division of Police and Cuyahoga County Prosecutor’s Office instead charged the suspect, Darryl Borden, with attempted murder, falsely claiming that he shot Kilnapp. These charges would be quietly dropped almost a year later. He still went to prison though. More on that in a minute.

Investigators determined that Officer Gannon lied about the shooting. Despite this, he received no discipline for lying, much less for shooting his partner. Unbelievably, three months after the shooting, the City rated Officer Gannon’s overall performance as “exceeding expectations,” referring to shooting his partner as merely a “minor setback.” This probably has nothing to do with the fact that Gannon’s father is a sergeant with the Cleveland Division of Police. Remember, Officer Gannon was a rookie cop. He entered field patrol as an officer in January of 2020. He shot his partner on July 20, 2020. Before the first year was even out, he was “exceeding expectations.” 

In the early hours of July 20, 2020, Kilnapp and Gannon responded to a call on the east side of Cleveland alleging there was an emotionally disturbed man with a gun on the second floor of the boarding home he was staying in. There had been no report of the man shooting at anyone or otherwise being physically violent. Now this is according to the allegations in the lawsuit. The information released publicly at the time by the prosecutor’s office, was that the man had shot through the floor at the 911 caller prior to the law enforcement arrival. Perhaps that was false, which wouldn’t be surprising given everything else we now know about this story. 

After learning the man, Darryl Borden, was in a second-floor bathroom, the two officers went upstairs to the hallway. Gannon then took the lead and stood offset from the bathroom door with Kilnapp in a position a few feet behind him. The staircase was between Gannon and Kilnapp. Gannon did not knock and announce their presence as police officers. Gannon did not ask Borden to come out of the bathroom. Still in the bathroom, Borden made no threatening statements to the officers, or in their presence. The lawsuit alleges that, rather than taking other steps, such as deescalation, withdrawing and establishing a perimeter, attempting surveillance of the bathroom, waiting for Borden to come out, or calling for backup or other assistance, Gannon instead decided to open the bathroom door. 

According to the lawsuit’s allegations, when Gannon opened the door, Borden was standing there, apparently holding a firearm pointed downwards, at his side in one hand. Borden took no steps towards Gannon, nor made any other threatening gestures or statements. Gannon did not order Borden to drop his weapon. He didn’t order him to do anything. Instead, he panicked, spun back out of the doorway, out of sight of Borden. Borden still took no action. 

Officer Gannon then ran away, towards the stairs. Borden didn’t follow him, or even flee, but rather stayed in the bathroom. Officer Kilnapp, Borden’s partner, was standing near the top of the stairs. Gannon bolted down the stairs, screaming as he fled. As he ran, Gannon pointed his gun over his head behind him, in the opposite direction as he was running, and began shooting blindly behind him. One of these bullets hit Kilnapp as she stood near the top of the stairs. Gannon’s body camera footage shows him running away while Kilnapp yells after him, “I’m shot. I’m shot. Don’t leave me.”

EMS rushed Officer Kilnapp to the hospital. Two weeks later, surgeons were able to remove the bullet fragment near her spine. Kilnapp filed the lawsuit on July 13, 2022, which discloses that Gannon never apologized to his partner for shooting her.

The investigation team created several diagrams showing the bullet trajectory that injured Kilnapp.  This diagram is an overhead view of the staircase, hallway and bathroom. This shows that one of Gannon’s bullets, marked by a yellow line, was fired through the bathroom wall near the top of the staircase on a slight downward angle, meaning that he must have been holding his gun above his head when he fired, as he was running away. 

This diagram shows Officer Kilnapp’s approximate vantage point when Gannon began shooting, as well as the path of Borden’s bullets when he reacted to Gannon opening fire. This shows the investigators’ conclusion that no bullets fired by Borden traveled in the direction of Officer Kilnapp.

Gannon initially claimed to investigators that when he opened the door, Borden was holding a gun in two hands and pointing it at the door. The lawsuit alleges that Gannon’s body cam footage shows his claim to be a lie, and that instead, it records Gannon admitting that he might have shot his partner. The investigation also revealed that Borden didn’t fire any shots until after Gannon began running down the staircase and shooting towards the bathroom. 

Actually, if you look at a still-shot of the moment the body cam footage shows the bathroom door open, you can see that Borden’s left arm is pointed away from Gannon. Therefore it was clearly false to claim that both of Borden’s hands were pointed towards the door. To be honest though, I can’t make out what’s going on with the rest of Borden’s body.

Despite having evidence that it was Gannon who shot Kilnapp, a July 31, 2020 press release from the Cuyahoga County Prosecutor’s Office claimed that Borden “fired multiple shots at officers striking Officer Kilnapp.” Those charges would be dismissed around a year later. 

So, what ended up happening to Mr. Borden? He was given a seven to ten year prison term by a Cuyahoga County judge for attempted felonious assault of a police officer and using a gun in the crime. In September of 2021, a federal judge tacked on another five years of incarceration for federal firearms related charges, as he was a felon in possession of a firearm in the first place. 

Ironically, in March of 2021, the CDP suspended Officer Kilnapp for her involvement in the incident, on the grounds that she forgot to turn on her body camera before entering the house on the night of the shooting. To the contrary, the CDP took no disciplinary action against Gannon for shooting blindly through a wall while running away from a suspect and shooting his partner in the process.

Let’s take a look at the complaint’s legal theories. Here’s the full complaint:

The lawsuit alleges a direct excessive force Fourth Amendment violation by Officer Gannon, as well as supervisory and municipal violations by the City of Cleveland, alleging the existence of an unconstitutional policy of excessive force and training. 

A similar incident actually happened in West Virginia back in 2009, and I was involved in some of the litigation. It was a tragic case. There was a vehicle pursuit that ended in multiple police officers surrounding the suspect’s vehicle, with the suspect still at the wheel. Several officers began firing at the driver. One of the bullets ended up hitting and killing a Charleston Police Department officer accidentally – or rather negligently. The officer’s widow sued, which was ultimately unsuccessful. Why? 

“The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’…” “In order to be ‘seized’ within the meaning of the Fourth Amendment, one must have been the intended object of physical restraint by a state actor.” 

The U.S. Supreme Court has held that, “‘the Fourth Amendment’s specific protection against unreasonable seizures of the person does not, by definition, extend to unintentionally injured ‘bystanders.” (Brower v. County of Inyo 1989; see also Rucker v. Hartford County 4th Cir. 1991). In the Charleston Police Department case, which was Jones v. City of Charleston, from 2012, the Court held that since the colleague police officer wasn’t intentionally shot by the police officer who had fired at a suspect, that no Fourth Amendment seizure could occur. In other words, even a negligent use of a firearm by a police officer can fall short of being legally considered excessive force, assuming the victim was unintentionally shot by the police officer.

As the Judge in that case wrote in the opinion:

Whether it was appropriate for Officer Burford to discharge his weapon without accounting for the location of a fellow officer, and whether his actions in doing so may have been negligent or even reckless are questions that are not before the court. The plaintiff has only alleged violations of the Fourth and Fourteenth Amendments. Because it is undisputed that Officer Burford did not intend to shoot Officer Jones, the Fourth Amendment is not implicated.

Now there could be other theories of potential liability, which is probably the best hope for Officer Kilnapp in this case, as the Judge alluded to in the Jones case. There could be state law claims based on a negligence or recklessness standard. However, it doesn’t appear that any were alleged in the lawsuit. There may be some meat to the argument that Officer Gannon’s actions that day were attributable to training and supervisory issues. It would be probably be a stretch to attribute it to the CPD’s overall use of force policy issues, since Gannon obviously wasn’t following any sane policy if he was running away, shooting blindly behind him through a solid wall. 

Sadly, unless the case settles, I don’t see a realistic path to liability. But I hope I’m wrong, because there should be accountability for someone being wrongfully shot by another individual, police officer or not.

Breaking: Federal Court Denies Judicial Immunity in Family Court Judge Lawsuit

Breaking news today in the federal civil rights lawsuit against Family Court Judge Louise E. Goldston, which alleges constitutional violations for her search of my client’s house in March of 2020…. Just today, the Federal Court issued an order denying the judge’s claim of judicial immunity, ordering that the jury trial is on for Tuesday. As the order acknowledged, the West Virginia Supreme Court already found Judge Goldston’s conduct to be in violation of the law:

Thereafter the Supreme Court of Appeals concluded Judge Goldston exceeded her judicial powers in searching Mr. Gibson’s residence in violation of the Code of Judicial Conduct. See In re Goldston, 246 W. Va. 61, 866 S.E.2d 126. A censure and fine resulted. Id.

The opinion went on to address Judge Goldston’s arguments that she was merely holding a Family Court hearing inside Mr. Gibson’s home, and that she should be immune from liability. The Court pointed out the obvious flaws in her argument, stating:

The crux of Judge Goldston’s argument is that her actions were taken during the course of adjudicating a Family Court dispute. She contends that, assuming she exceeded her authority, her actions were judicial in nature and hence subject to judicial immunity.

As noted, the Court examines the nature of the act and not the actor. The nature of the act was a warrantless search of Mr. Gibson’s residence and a warrantless seizure of his property. The twofold inquiry is (1) whether a search of a residence was an act normally performed by a judge, and (2) the expectations of the parties, namely, whether Mr. Gibson was dealing with Judge Goldston in her judicial capacity. Respecting the first prong, does a judge normally execute a search warrant or personally search a residence? To quote Judge Posner, “[t]o ask the question is pretty much to answer it.” Nelson v. Streeter, 16 F.3d 145, 148 (7th Cir. 1994). While “the issuance of a search warrant is unquestionably a judicial act,” see Burns v. Reed, 500 U.S. 478, 492 (1991), the execution of a search and seizure is not….

Judge Goldston was not engaged in an act normally performed by a judge.

Respecting the second prong, Mr. Gibson doubtless dealt with Judge Goldston in her judicial capacity at the outset of the March 4 contempt hearing. The situation changed markedly, however, once the field trip began. Once Judge Goldston invited herself to the residence, began her warrantless search, and then seized private property, the die was cast. Nevertheless, Judge Goldston notes (1) a bailiff was in attendance, (2) the search was recorded much like a judicial proceeding, and (3) Mr. Gibson and his ex-wife made motions during the process. She asserts all of this demonstrates the parties dealt with her as a judge.

The contentions do not withstand minimal scrutiny. Mr. Gibson’s motion for disqualification arose out of Judge Goldston acting as a witness rather than a judge. Further, the recording of the search — which Judge Goldston attempted to halt — is in no way equivalent factually or legally to an electronically transcribed or recorded judicial proceeding. Judge Goldston recognized as much in her deposition. Judge Goldston has thus failed to demonstrate either of the two required prongs.

Here’s the full memorandum opinion and order:

The Court also ruled that the Raleigh County Commission, i.e., the Raleigh County Sheriff’s Office, is also going to trial on the issue of whether they adopted and maintained a policy of illegal Family Court judicial searches of litigants’ homes, which ultimately led to the search of Mr. Gibson’s home on March 4, 2020. The Court correctly noted that the deposition testimony of the two bailiffs indicates the existence of such a policy:

For instance, according to the record, Bailiff McPeake sought out a Raleigh County supervisor prior to his first home search as a bailiff in Raleigh County Family Court, seeking assurance that he was within department policy prior to doing so. Bailiff McPeake was told by Sergeant Aaron Lilly that he was authorized to participate and that they “do that from time to time.” Even after the March 4, 2020 event, Bailiff McPeake testified that there has been no policy change as to family court judges searching parties’ homes. Bailiff McPeake, who continues to serve as bailiff for Judge Goldston, has not been instructed by his supervisor, Lieutenant Dave Stafford, to refrain from similar conduct in the future.

Additionally, Deputy Stump, who established during his deposition that he was a supervisor for the Raleigh County Commission, testified that he had visited the homes of litigants with Judge Goldston “numerous times.” Deputy Stump explained that the sheriff’s department policy for bailiffs is whatever policy a judge told him — “no questions asked.” He noted that, even after the March 4, 2020 incident, there has been no policy change within the department about bailiffs going to the homes of litigants. Indeed, Deputy Stump asserts that, “if Judge Goldston told me today to go to the house, I’d be the first one there.”

The record gives rise to a genuine issue of material fact respecting whether the Raleigh County Commission had the required municipal policy of allowing officers to participate in home searches with family court judges of the type here challenged.

Shortly after the issuance of the order, Judge Goldston filed a notice of appeal, as well as a motion for stay of the trial, pending her appeal on the denial of judicial immunity. I’m currently researching the legal issues surrounding her attempt to stop the trial and immediately appeal to the Fourth Circuit. I will be filing a formal response with the Court tomorrow morning, and will provide an update on whether the trial is on as soon as a decision is made.

Charges Dropped in the Mount Hope PD Traffic Stop Case

This week, following public release of the footage showing the arrest of Brian Beckett by Officer Aaron Shrewsbury, of the Mount Hope WV Police Department, the prosecutor on the case filed a motion requesting dismissal of all of the charges, which was granted by the Court. The pending charges of obstruction, disorderly conduct, speeding, and reckless driving were all dismissed and Mr. Beckett was released from bond.

The prosecutor noted in his motion that, “A review of the evidence does not support prosecution of the case.”

This is great news. Many thanks to Mr. Beckett’s criminal defense attorney on the case, Jody Wooten, for a successful conclusion. This doesn’t automatically create civil liability in a federal civil rights lawsuit, but it does foreclose the defense from using the criminal charges, or any criminal conviction, against us in a civil lawsuit. It was also the right thing to do. Our investigation continues in the meantime, both in regards to this incident, as well as into the Nathan Nelson case, where my client had his jaw fractured in two places by the same police officer. Many questions still remain, and information received is still being examined and sorted out.

One of the interesting things I’ve learned is that the police department in this tiny West Virginia town apparently takes up around 50% of the town’s budget. I’ve received lots of tips from credible sources about multiple allegations of corruption surrounding this. So I’ll be taking a deep dive into these issues.

Here’s the dismissal motion and ensuing orders from the Court:

Mount Hope WV Officer Part 2 – Breaks a Kid’s Jaw and Abandons Him in Someone Else’s Cruiser

You may have seen the video posted last week about Mount Hope, WV, police department officer Aaron Shrewsbury. Since the video was posted, I’ve received a lot of information from the public, including from other police officers. That’s always an indication, in my experience and opinion, that there’s a real problem there. I was told today by credible sources that Officer Shrewsbury has now been suspended with pay. I have not received verification of this as of yet, however. As you will see below, his supervisor / Chief of Police, had already signed off on the use of force I’m about to discuss, so hopefully he’s not in charge of the internal investigation…. In the video about what happened to Mr. Beckett, I mentioned that kid from Ohio who had his own encounter with Officer Shrewsbury last year. Let me tell you more. 

On August 15, 2021, several police agencies responded to a 911 call from Ace Adventures Complex, a vacation and white water rafting facility located in Minden, Fayette County, West Virginia. There was a verbal altercation that took place at the complex. 20 year old Nathan Nelson, from Ohio, had been visiting his sister, who worked at Ace Adventures Complex. At some point they became involved in some sort of altercation or argument involving multiple other individuals.

Several police agencies arrived, including Officer Shrewsbury from the Mount Hope Police Department. Marijuana was found in the car belonging to Nathan and his sister. Officer Shrewsbury arrested Nathan and placed him in handcuffs. 

According to Shrewsbury’s subsequent police report, he handcuffed Nathan and escorted him to a police cruiser. While standing beside the cruiser, nathan allegedly became angry and asked, “why he was fu&cking being arrested.” Shrewsbury then asked him to stop swearing, and then advised him he was being arrested for disorderly conduct and possession of a controlled substance. Nathan responded, “this was fucking bullshit,” to which Shrewsbury responded, “yeah it is,” and that, “I wasn’t knowledgeable about how things were done in Ohio where he was from, but in West Virginia, possessing marijuana and other illegal and dangerous drugs, using profanity in public and fighting in the streets definitely are all illegal here.” 

Shrewsbury then wrote in his report that, “I turned away from the male subject briefly to get an Oak Hill officers’ attention to unlock the police vehicle, so I could place the male subject safely inside of it,” but that “As I turned back to the male subject, he turned his head toward me and pursed his lips while making a noise as if he were clearing his throat of flem and filling his mouth with it and sputum. He then moved his head towards me in a motion that made me believe that he was going to spit on me. Observing this, I then rapidly used a straight arm with an open palm to divert the male subject’s head away from me, making physical contact with the left side of his head and facial area. The maneuver was abrupt, but did not cause him to fall to the ground.

By all means, review the pertinent portions of Officer Shrewsbury’s report for yourself:

After the strike to Nathan’s face, Shrewsbury then placed Nathan, still handcuffed, in the rear of the Oak Hill police cruiser, essentially abandoning him there for the Oak Hill officers to find.

Ultimately, Nathan was only charged with misdemeanor possession of marijuana. Nathan maintains that he wasn’t resisting Shrewsbury in any way. And contrary to what Officer Shrewsbury wrote in his police report, Nathan maintains that it went down a little differently. Nathan says that he was told by Shrewsbury, “if you don’t shut up, I’m gonna take these handcuffs off and do one of those old West Virginia ass whoopins.” After apparently not liking Nathan’s response, Nathan states that Officer Shrewsbury, who started to walk away, quickly turned around and punched him in the face with a close fist right hook, with Nathan still handcuffed and not physically resisting in any way.

I discussed in the previous video about Officer Shrewsbury that he had been decertified as a police officer while working at the Fayette County Sheriff’s Office in 2015, for lying and dishonesty as a police officer. The next year, Shrewsbury ran for the position of Magistrate Judge in Fayette County, touting his law enforcement experience – not mentioning his decertification – and also bragging that he was a professional boxer.

Excerpt, Fayette Magistrate Division 2 and 3 Candidates, May 8, 2016, The Register-Herald, https://www.register-herald.com/news/fayette-magistrate-division-2-and-3-candidates/article_ef029a2c-fd78-5bed-9473-88b362722a2c.html

A review of old social media also reveals at least one past boxing photo of Officer Shrewsbury.

The physical trauma inflicted to Nathan corroborates that, and corroborates Nathan’s recollection of being punched with a closed-fist right hook, rather than the word salad written by Officer Shrewsbury.

Nathan was discovered by other police officers, sitting in the back of a police cruiser, covered with blood, with his tooth laying in his lap, his shirt covered with blood, suffering in severe pain. These other officers took Nathan into their custody and transported him to a nearby hospital, where he underwent emergency treatment. Nathan’s jaw was broken in two different places. He was going to require immediate surgery. He ended up being transported all the way back to Ohio to a specialist surgeon at Ohio State University, for the necessary surgery on his jaw. 

Excerpts of Nathan’s medical records from Plateau Medical Center Emergency Room:

So you have a 20 year old kid, handcuffed, charged only with misdemeanor possession of marijuana, punched in the face by a police officer claiming to have experience as a professional boxer, knocking out at least one tooth, and fracturing his jaw in two places, requiring transport by ambulance, all the way to Ohio for surgery, where he spent four days hospitalized.

One of the police officers from the nearby Oak Hill Police Department who discovered Nathan injured and bleeding in the back of the police cruiser, and who transported him to the emergency room of the nearby hospital, noted in her report that she didn’t even know who had arrested and handcuffed Nathan, even identifying the design of the handcuffs she removed from him at the hospital. 

Excerpt of the police report by OHPD Officer Kennedy.

Another Oak Hill officer noted in his report that he was “made aware that an officer had punched the male” [arrestee] and placed him in into the other Oak Hill officer’s car, basically abandoning him there with no information or documentation.

Excerpt of the police report by OHPD Officer Jones.

Laughably, in his subsequent written police report, Officer Shrewsbury filled out a use of force report that contained almost no information about the force that he used, or the reason for using it. Mind you, I don’t believe his report even alleged that Nathan spit at him, just that he allegedly heard sounds that he alleges were leading up to a spit. Importantly, Nathan wasn’t charged with spitting, or attempting to spit on any police officer. 

Officer Shrewsbury’s Use of Force Report, dated August 16, 2021, which was even signed by his supervisor, the Chief of Police, Jack Brown.

Police use of force incidents are judged by the federal courts using the Graham Factors, which are going to easily show that this was an unreasonable and excessive use of force. Here you have an individual charged with an extremely minor crime, who is handcuffed, who is not physically resisting, but rather only running his mouth, expressing criticism, who is punched in the face with tremendous force, by a large police officer who claims to be a boxer. 

While that police officer claims he heard pre-spit sounds, that same police officer has already been decertified for lying as a police officer. Thus, it’s probably for the best if Officer Shrewsbury is suspended. All of this begs the question about why the town of Mount Hope, West Virginia hired him in the first place, and why they appear to have let him escape real supervision. 

Make sure you subscribe and follow-along to hear what’s happening next, because we’re learning more by the day, and lawsuits are looming.

Local Town Victimizes Innocent Motorists with Officer Perjury Pottymouth

On January 31, 2022, Brian Beckett was traveling home from work, driving Northbound on WV Route 19 in Mount Hope, West Virginia. It was around 5:45 p.m. He ended up getting pulled over for speeding by Mount Hope Police Department officer Aaron Shrewsbury. Instead of getting a speeding ticket, or even a warning, Mr. Beckett ended up being pulled out of his car and arrested for obstructing an officer, disorderly conduct, speeding, and reckless driving.

Mr. Beckett was driving home from an industrial work site in a nearby county. He’s not a criminal – not out selling drugs or committing crimes – just trying to drive down the road. He had a dash camera recording, which appears to show that he was driving safely. It doesn’t indicate his speed, but that’s not what this video is about. Officer Shrewsbury would subsequently swear under oath in his criminal complaint affidavit, seeking court authorization for Mr. Beckett’s arrest, that not only did he radar Mr. Beckett speeding, but that “as I was catching up to the vehicle, I noticed the vehicle weaving through traffic recklessly” but that “I was able to pull behind the vehicle and get it stopped….” Take a look at the dash cam footage from Mr. Beckett’s car just prior to the traffic stop, and see if that statement appears to you to be true.

Mr. Beckett used his personal cell phone to record his interaction with Officer Shrewsbury. Despite the officer stopping the video and attempting to delete the recording from Mr. Beckett’s phone, the officer couldn’t access it. During arrest processing, the officer was placing the phone in front of Mr. Beckett’s face in order to attempt to unlock the phone using facial recognition, to no avail. So he was unable to delete this footage, which shows the encounter, what led to Mr. Beckett’s arrest, and the fact that Officer Shrewsbury stopped the recording.

So Officer Shrewsbury immediately arrested Mr. Beckett for obstruction for not rolling his window down all the way. He never bothered to ask Mr. Beckett for his license, registration, proof of insurance, or even his name. He just demanded that the window be rolled down all the way, not providing a reason – just because he demanded it. Then immediately removed him from the car and arrested him. The officer never even identified himself, the reason he pulled him over, or explained any legitimate reason he required the window rolled down. 

In the subsequent criminal complaint, no allegation was made or charged that it is illegal in West Virginia to not roll one’s window down completely during a traffic stop. He was merely charged with obstruction. Under West Virginia’s obstruction statute, the plain language of the statute establishes that a person is guilty of obstruction when he, “by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity.” The Fourth Circuit recently examined the statute:

As West Virginia’s high court has “succinct[ly]” explained, to secure a conviction under section 61-5-17(a), the State must show “forcible or illegal conduct that interferes with a police officer’s discharge of official duties.” State v. Davis, 229 W.Va. 695, 735 S.E.2d 570, 573 (2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611 (2008) ). Because conduct can obstruct an officer if it is either forcible or illegal, a person may be guilty of obstruction “whether or not force be actually present.” Johnson , 59 S.E.2d at 487. However, where “force is not involved to effect an obstruction,” the resulting obstruction itself is insufficient to establish the illegality required by section 61-5-17. Carney , 663 S.E.2d at 611. That is, when force is not used, obstruction lies only where an illegal act is performed. This is because “lawful conduct is not sufficient to establish the statutory offense.” Id. 

Of particular relevance to our inquiry here, West Virginia courts have held that “when done in an orderly manner, merely questioning or remonstrating with an officer while he or she is performing his or her duty, does not ordinarily constitute the offense of obstructing an officer.” State v. Srnsky, 213 W.Va. 412, 582 S.E.2d 859, 867 (2003) (quoting State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 373 S.E.2d 484, 486 (W. Va. 1988)). 

Hupp v. State Trooper Seth Cook, 931 F.3d 307 (4th Cir. 2019).

At no point did Mr. Beckett refuse to participate in the traffic stop being conducted by Officer Shrewsbury. He rolled the window down partially. He was clearly visible through the non-tinted glass, his hands were visible and non-threatening; he hadn’t refused to provide his license, registration and proof of insurance. He hadn’t refused to identify himself, or to do any act he was required by law to perform. Moreover, I’m aware of no State law, nor did Officer Shrewsbury identify one in the charging documents, requiring motorists who are subjected to traffic stops in West Virginia to roll their windows completely down as a matter of routine. 

It appears that this arrest occurred in the absence of probable cause, and therefore in violation of the Fourth Amendment. But it didn’t stop there. 

Officer Shrewsbury also alleged that, after pulling Mr. Beckett from the vehicle and placing him in handcuffs, while walking Mr. Beckett to the police cruiser, that Mr. Beckett remarked that “this was bullshit.” Officer Shrewsbury wrote in his criminal complaint affidavit that, “I then informed Mr. Beckett to stop cussing and placed him inside my vehicle.”

Under West Virginia’s disorderly conduct statute, no probable cause could exist for a warrantless arrest for disorderly conduct by virtue of saying, “this was bullshit.” First of all, if that were possible, such would be a First Amendment violation, as the West Virginia Supreme Court warned law enforcement back ini 1988:

“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”  

State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 773-74 373 S.E.2d 484, 486-87 (1988).

First Amendment issues aside, merely using bad language in the presence of a supposedly-sensitive police officer, cannot violate West Virginia’s disorderly conduct statute. Not that I expect law enforcement to actually learn the law, but there is a 2015 West Virginia Supreme Court case directly on point. In Maston v. Wagner, 781 S.E.2d 936 (W. Va. 2015), the West Virginia Supreme Court held specifically that the WV disorderly conduct statute, while potentially criminalizing profane language under some circumstances, in public and in front of other people who complain, does not criminalize profane language used by a citizen during their interaction with law enforcement.

If that’s not enough, the U.S. Supreme Court has sent a clear message through its rulings, such as in Cohen v. California (1971) and Lewis v. City of New Orleans (1974) that free speech, however offensive or controversial to sensitive virgin-eared police officers, is afforded a high level of protection. 

Officer Shrewsbury didn’t even allege in his criminal complaint affidavit that a third party had overheard Mr. Beckett’s alleged use of the word bullshit, or complained about it. Nevertheless, the local magistrate signed off on it, approving it as probable cause under West Virginia law. Which is a disgrace, given the fact that the State Supreme Court clearly warned otherwise about seven years earlier.

Also a disgrace to our Constitution, is the fact that these charges are still pending against Mr. Beckett. The individual police officers like this you see in these videos never do it alone. Behind the scenes are politicians and prosecutors. 

In fact, the politicians and prosecutors behind the scenes of this Officer Aaron Shrewsbury should explain why this police officer is allowed to victimize citizens in the first place, given the fact that he had previously lost his certification to be a police officer in West Virginia while working at the Fayette County Sheriff’s Office for “Dishonesty – willful falsification of information.” No, unfortunately I’m not making that up. That’s right – the same police officer who filed false and incorrect charges against Mr. Beckett, has somehow in the past managed to screw up his job so badly that he lost his certification to be a police officer, for lying as a police officer. Truly unbelievable. But also not unbelievable. 

Also not surprisingly, other complaints have surfaced about Officer Shrewbury. This one may sound familiar. August 15, 2021, a few months before Mr. Beckett’s incident, a 20 year old kid from Ohio was driving through this same area, and ends up getting arrested by Officer Shrewsbury for misdemeanor possession of marijuana. And listen to this, the kid says, according to Shrewsbury’s report, “this is fucking bullshit.” That incident ended in Officer Shrewsbury punching that kid in the face, and then placing him handcuffed, in the back of a police cruiser, with a blood covered face and broken jaw, which required surgery to fix. 

The kid was finally able to get help from another police officer at the scene. He said hey, I need help. When asked why he needed help, the kid said, “my tooth is in my lap.” The officer then looked at him and saw a large amount of blood coming from his face and on his shirt. That officer then promptly took the kid to the hospital, which began a long period of medical treatment to fix the damage caused by Officer Shrewsbury.

More about this incident shortly, but the question begs, why do the politicians and prosecutors turn this man loose on the public. You can see from this video the way in which he appears to hold regular citizens in contempt, treating them like garbage to be discarded.

If you have any information about Officer Shrewsbury, who as far as I know is still out there interacting with the public, please reach out.

Small Town Cops Exposed on Video and Held Accountable in Court

The small town police department in Westover, West Virginia was recently exposed for their corruption and misconduct. Take a look at this dash cam video featuring two police officers who won the town a 1.1 million dollar settlement in two lawsuits, including the brutal use of force captured in this disgraceful body cam footage.

Here’s the text of the lawsuit itself, with all of the allegations:

But there’s more…. Accusations of corruption surfaced, which is shocking, I know.

The over 90-minute meeting that involved former Westover Police Chief Rick Panico, Lt. John Morgan, Westover city attorney Tim Stranko and Westover City Councilman Steve Andryzcik took place in September 2020. The meeting came on the heels of Panico’s resignation and the release of a letter signed by 11 Westover Police officers calling for the removal of Officer Aaron Dalton for a number of abuses of power….

The conversation during the meeting was mostly focused on the conduct of Mayor Johnson and his relationship with Officer Aaron Dalton. Pancio and Morgan described concerns that Mayor Johnson subverted the chain of command within the police department and created an environment that made it impossible to hold Dalton accountable for his actions.

Dalton is facing multiple lawsuits over civil rights violations and more accusations came to light in the meeting, including claims that Dalton had sexual intercourse with a woman while on duty and later was harassing her. Pancio claimed in the meeting that Mayor Johnson told him to “make it go away.”

This reminds me of the time I spent in Parkersburg, West Virginia years ago, where the mayor held an excessive force planning meeting with all the local police officers, resulting in at least one blowing the whistle on him….

Raleigh County Deputies Continue to Enable the Family Court Search Judge in Defiance of the Supreme Court

The Raleigh County Sheriff’s Deputy defendants in the Family Court Judge Search case have requested qualified immunity from the federal court in their motion for summary judgment in the pending civil lawsuit. Unfortunately for them, they can’t claim judicial immunity, as the judge has, even where following orders of a judge. So they’re stuck with qualified immunity. But will they get it? Their depositions have been taken, and frankly, their testimony was quite shocking. Despite the fact that the WV Supreme Court declared in no certain terms that judges do not search homes, and that the March 4, 2020 search of Mr. Gibson’s house was unconstitutional and “serious misconduct,” both the defendant judge, as well as her current and former bailiffs, continue to defy the Supreme Court, even threatening to do it again.

Here’s Raleigh County’s motion, in full. The gist of their argument is that, even if they participated in a civil rights violation, they should be dismissed from liability, because it was a reasonable mistake of law, which is the basic argument for qualified immunity. Moreover, the department itself claims they didn’t have a formal policy which caused, or substantially contributed to, the civil rights violation. As you’ll see below, the arguments of their lawyers don’t match the testimony of the actual officers, who clearly admit to an ongoing policy of illegal judicial searches, and who apparently have no respect for the law whatsoever.

Posted below is our response to Raleigh County’s motion, which highlights the extremely troubling deposition testimony of two of the deputy defendants, Bobby Stump and Jeff McPeake, both current or former bailiffs of the defendant judge. Here’s a couple of highlights describing their deposition testimony:

Defendant Bobby Stump, who arrived shortly after the search and seizure began, testified that he served as Defendant Goldston’s bailiff for approximately ten years, and that during that time, he went with her to the homes of litigants “numerous times.” (Stump at 6:12-14, 19-24; 7:1-4). When asked to estimate the number, Stump stated, “There’s no way I could – over thousands of divorce cases . . . . There’s no way I could give you an accurate number. I mean, I have no idea.” (Stump at 7:19-24; 8:1)….

According to Defendant Stump, the arrest powers were utilized often while serving as Defendant Goldston’s bailiff. Stump testified that he’s arrested “dozens and dozens and dozens of people with Ms. Goldston.” (Stump at 13:22-24; 14:1-5)…. Stump testified that he personally looked for items in the home of a litigant “numerous times,” explaining, “[a]ll the judges sent me out to look for items” and that, “[i]n the middle of a court hearing they would send me out to look for items at a home.” Stump estimated this occurred dozens of times. (Stump 16:4-12)…. In fact, Stump described that he and Judge Goldston knew each other so well, that when they went into the homes of litigants, “she didn’t have to tell me anything . . . she could just give  a look and I would know what to do.” (Stump 51:4-12)….

Defendant Stump remains employed as a police officer with the Raleigh County Sheriff’s Office. He noted that, even after the March 4, 2020 incident, there has been no policy change within the department about bailiffs going to the homes of litigants. Indeed, Stump asserts that, “if Judge Goldston told me today to go to the house, I’d be the first one there.” (Stump 56:1-6). Even after the WVSCA declared that Judge Goldston engaged in an unlawful search of Plaintiff’s residence on March 4, 2020, Defendant Stump boldly declared, “I’ve never had a judge to ask me to come remotely [close] to breaking the law.” When asked whether he would violate the Constitution, if asked to do so by a judge, Stump responded, “I know without a doubt, no judge that I ever worked for would ever ask me to violate the law, so I’ve never been in that predicament and I can safely say I never will.” (Stump 58:19-23).

Even in the context of a criminal case, Defendant Stump testified that he would perform a warrantless search of a defendant’s home, if asked to do so by a judge, despite his decades of knowledge and experience with the search warrant requirement under the Fourth Amendment. This same blind allegiance, or ignorance, is what guided Stump on March 4, 2020. (Stump 60:2-21). McPeake likewise subjectively believes that a warrant is not required in order to perform a search of a litigant’s home, at the direction of a family court judge, based on the fact that the judge is personally present and directing their conduct. (McPeake 22:18-24; 23:1-4; 24:5-14, 22-24; 25:1-3).

The judge’s current bailiff, Jeff McPeake, likewise testified that he was specifically told that he was allowed to participate in home searches with judges, and that there has been no policy change since then – even after the WV Supreme Court formally censured the judge for the behavior, calling it “serious misconduct,” unconstitutional, and an “egregious abuse of process” which violated the privacy and sanctity of the victim’s home.

McPeake testified that he believed the search was authorized under department policy due to a conversation with a supervisor, Sergeant Lilly, who told him that it was fine to do so, because “we do do that from time to time.” Thereafter, no supervisor ever told McPeake not to do so. Moreover, as of the date of his deposition, he wasn’t aware of any written policy changes pertaining to bailiffs or deputies going to the home of a litigant with a judge. Nor have any of his supervisors proactively told him not to engage in similar conduct in the future, even though they’re aware that he continues to serve as a bailiff for Judge Goldston. Nevertheless, McPeake noted that his own common sense tells him he shouldn’t do it again. (McPeake 13:10-13; 40:11-24; 64:2-23; 65:9-17). It appeared to McPeake, after getting express authorization from a supervisor to participate in his first home search with a family court judge, that it seemed to be something that occurred on a regular basis. (McPeake 13:7-13; 15:3-8).

Thus, the sheriff’s department authorized the home search practice by judges, and apparently continues to authorize the unconstitutional practice, in total disregard of West Virginia law, not to mention the U.S. Constitution. If only the voters of Raleigh County had some way of holding their government officials accountable…..

Here are the deposition transcripts for both deputies: