Breaking news out of federal court in South Carolina, where a federal jury has just awarded a $550,000 verdict against a former Richland County Sheriff’s deputy, as well as the sheriff’s department itself.
Here are the relevant case documents, including the complaint, jury instructions, verdict form, as well as the full deposition transcript of one of the officers:
In the Fall of 2020, David Craft, who then lived in Statesville, North Carolina, killed a monster buck in McDowell County, West Virginia, and also killed another trophy buck back in North Carolina, during the same season. David is a serious deer hunter. He does his homework; he puts in the time. He gets result. But others get jealous. Law enforcement ended up essentially stealing his antlers, posing with them for the media, dragging him through over a year of frivolous criminal prosecution, and then abruptly dropping the charging just prior to the jury trial, when it turned out they had no evidence.
Apparently accusations began to fly in early 2021. West Virginia wildlife officers, or DNR officers, from McDowell County completely ran with unfounded suspicions or allegations that David’s North Carolina buck was actually killed in West Virginia, which would be a violation due to the fact that he had already killed this monster trophy buck there, and you can’t kill two – just one. Then, while they’re at it, they for some reason conclude that the trophy monster buck must have been illegally killed somehow, either with a crossbow instead of a regular bow, or because it must have been killed on the jealous neighboring hunt club’s land. Either way, a bunch of bros in West Virginia, law enforcement included, wanted those antlers. So they dream up a story of some sinister plot to deprive McDowell County good ‘ole boys of their rightful trophy bucks, removing them to the undeserving state of North Carolina.
Why did they want them? To show them off of course. In 2022, no mere peasant can post trophy buck brag photos online – just law enforcement. A quick review of social media shows that wildlife officers in West Virginia have really gotten into this.
Ultimately, the charges were dismissed, apparently due to a complete and total lack of evidence. A jury trial was set to occur on April 28, 2022. But on April 21, 2022, the prosecutor moved to dismiss all charges, which was granted by the Court.
“Like a lot of things the investigation started with help from people in the community. That’s our greatest resource for information. We received information of possibly two bucks being taken illegally,” said Natural Resources Police Officer Jonathan Gills in McDowell County.”
“According to Gills, once they learned the suspect was from North Carolina they reached out to officers with the North Carolina Wildlife Resources Commission.” “They were a HUGE help to us, said Gills.
“Officers from the two agencies were able to come up with photographs and other physical evidence in the case which proved both bucks were killed in West Virginia. Turned out one of the bucks in question was actually checked in as being killed in North Carolina. Now, North Carolina investigators are closely watching the West Virginia case and the individual will likely face charges in his home state as well.”
Gills said the evidence also showed both bucks were killed with a crossbow” and that “crossbows are not allowed in those four archery-only hunting counties unless the hunter has a Class Y hunting permit.”
Gills also told the media, “We’ve been sent a lot of photos and there are a lot of folks who are upset these deer were taken.”
However, looking at the actual investigation report received in response to our FOIA request, they provided only a single grainy photo of a single deer, and it could be a great Bigfoot photo, looking almost photoshopped and inconclusive either way. Additionally, there is no mention of any involvement of North Carolina officers, other than the accompanying then to David’s house and then assisting them in seizing the antlers from the taxidermist. They didn’t appear to have provided any evidence at all against David, nor made any allegation that he had committed any crime.
Thus the photographs and physical evidence Officer Gill claimed to possess, proving that both bucks were killed illegally in West Virginia, just didn’t exist. That was false. As the February, 2021 article goes on to say, this appears to have been more about local hunters, including law enforcement officers, trying to keep outsiders away from their deer. Officer Gill goes on to say in the article that the West Virginia legislature had recently drastically increased the so-called “replacement costs” for trophy bucks illegally killed. “Gills said it was a major weapon to deter poaching of big bucks in his county,” the article said.
“Our department was given a great asset with that. Basically, they’re stealing the deer. They’re stealing quality bucks from legitimate hunters; men, women, and kids who are trying to go out and enjoy the sport.”
So, just because David was living in North Carolina, despite the fact that he bought a license, which mind you is way more expensive for an out-of-state hunter, he’s somehow not a “legitimate” hunter. He had a license, with which he killed one buck in West Virginia. He had a North Carolina license, with which he killed on buck in North Carolina. Both were properly checked in and all that rigamarole. This seems to have been more about hunters in one particular county protecting their trophy bucks from outsiders.
The article ended, “So far, no court date for the suspect had been set.” Not surprisingly, there was never a follow-up article. They did no press release mentioning that they had to drop the charges and were forced to return both sets of antlers to David. But even when he got them back, the attached capes were ruined.
Here, they drug David through the mud and criminal prosecution for over a year. Then when it came time to present the evidence to a jury, they walked away. No apology, no compensation – just returned his damaged antlers. They got their photo-op. Officer Gills got to play with the antlers for a while, but he had to give them back. So that’s how this thing started.
Sounded great, right? The politicians probably loved it. The hunters back home probably loved it. But here’s how it’s going now.
Also now, Officer Gills and Officer Damewood are going to have to answer for their actions in a section 1983 lawsuit. We have multiple constitutional violations that appear to have occurred here. I’ll provide an update with the details when the suit is filed. Wouldn’t it also be nice if the government would issue an updated press release about how this ended? If you just read the last one, it sounds like they got the bad guy and kept the antlers. If you just read the last one, David sounds like a real criminal. And the officers all sound like heroes. Let’s go ahead and set the record straight.
Imagine you’re sitting in family court and the judge looks at you and says, what’s your address? I’ll meet you there in 10 minutes, and I’m going to search your house with your ex-wife and my bailiff – a police officer who will arrest you if you don’t let me in. March 4, 2020, that’s what happened to my client. Here’s an update on the current status.
We won on the issue of judicial immunity. Just before the jury trial was set to begin, the defendant judge appealed the case to the Fourth Circuit. Since this matter involves judicial immunity, it’s capable of being appealed prior to trial. Usually a defendant is required to wait until afterwards.
They just filed their brief a couple of days ago. Next it’s our turn to file a response brief, which is due mid-November.
Here’s the federal court opinion denying judicial immunity:
Today we filed a lawsuit against multiple West Virginia parole officers for a pattern and practice of sexual abuse of female parolees in the Parkersburg, West Virginia area. Imagine being a woman in the parole system, where your male parole officer, who has the ability to search your house, arrest you, or send you to prison at any time, begins to demand sexual favors. That’s what’s been happening in West Virginia. Imagine also that you report this to your parole officer’s supervisor and he intimidates you into silence and allows it to continue. Imagine even the FBI comes in and has to tell a Parole Officer to back off, that he’s under surveillance, and meanwhile, the guy’s still employed as a Parole Officer, as if it’s just par for the course.
My client, identified in the lawsuit by her initials, tragically, was already victimized in the West Virginia correctional system. She was therefore vulnerable to these predators. When her parole officer began to engage in misconduct, she bravely recorded him. Six recordings she created. She took those recordings to the supervising Parole Officer in the region, David Jones. Instead of protecting her and other female parolees from the predator, he ordered her to destroy the evidence, telling her that the predator, Anthony DeMetro, was his friend. He told her to just stick it out until she was off parole. Meanwhile, other women were victimized, and my client was forced to live in fear and humiliation.
According to the other lawsuit that was filed, which I’ve also posted, other female victims were coming forward to state parole officials, only to be ignored – which is absolutely unacceptable. Thankfully, the FBI was listening and began an investigation. Now the feds have indicted Anthony DeMetro. His indictment is posted in full below. They also filed a criminal information charge against DeMetro’s supervisor, David Jones. I’ve posted that as well.
By now we’ve all seen the footage of the train in Colorado hitting the police car stopped on the tracks, severely injuring a woman in police custody who was placed handcuffed in the rear of the police cruiser. My immediate thought was qualified immunity. There can be no doubt that the police officer was directly at fault in causing the severe injuries to the woman in his custody. No doubt about it. But unlike a doctor who negligently injures someone, a police officer get to assert qualified immunity.
Here’s the 8 minute clip showing the train hit the cruiser:
Qualified immunity is unfair and needs to be abolished. A lawyer representing this woman, if a lawsuit is filed, is going to have the legal requirement to point to some past clearly established case law describing the officer’s conduct as a civil rights violation. Well, how many cases have there been in any particular jurisdiction where police officers let people in their custody get hit by trains? Moreover, as I’ve explained before, to establish section 1983 liability, you have to allege intentional conduct – not negligence or incompetence. Some intentional or purposeful conduct. For this reason, when one police officer accidentally shoots their partner, there’s generally no liability. I did a video on that one already.
I took a quick look at the case law in the jurisdiction where this train incident happened, which is Colorado, which is in the Tenth Circuit Court of Appeals. So that’s where you want to look first for federal civil rights case law. I have a theory of liability here. First, take a look at some of the new footage released, from another angle.
There’s a legal doctrine under section 1983 called the state-created danger theory. Basically, it allows a pathway for a plaintiff to establish section 1983 liability for a civil rights violation where the government may not have directly or intentionally caused the injury to the plaintiff, but created the possibility or likelihood that it would occur. This theory has been adopted in the 10th Circuit. Here’s what a plaintiff would have to prove:
the charged state … actor[ ] created the danger or increased plaintiff’s vulnerability to the danger in some way;
plaintiff was a member of a limited and specifically definable group;
defendant[‘s] conduct put plaintiff at substantial risk of serious, immediate, and proximate harm;
the risk was obvious or known;
defendants acted recklessly in conscious disregard of that risk; and
such conduct, when viewed in total, is conscience shocking.
But to defeat qualified immunity, you still have to point to a prior case with a similar fact pattern. Again, a non-exhaustive review of 10th Circuit case law shows that the state-created danger doctrine has been applied:
Off-duty police officer on personal business who crashed his police vehicle;
On-duty police officer who engaged in a high-speed chase;
Firefighter who crashed his truck into a car;
Police officer who caused the death of a bystander by instructing him to help physically subdue a suspect, who then shot the civilian;
Social worker who removed a child from his mother’s home and placed him with his father, who killed him;
School official who suspended and sent home a special education student who subsequently killed himself;
State mental health administrators who eliminated a special unit for the criminally insane, causing the transfer of a murderer to the general hospital, where he killed his therapist.
The common theme for liability in the 10th Circuit under the state-created danger theory is that the victims were unable to care for themselves or had limitations imposed on their freedom by state actors. This is very much like the deliberate indifference standard imposed on correctional officers entrusted with the care of inmates. The arrestee is unable to act herself. She can’t get out of the way of the train. Likewise, if a prison catches fire, inmates locked in their cells can’t get out on their own.
I can think of a few other arguments and theories for liability. But this is an often-overlooked one, and popped into my head first. It seems to match our facts here. Watching the footage establishes, without much potential for dispute, that the arresting officer created the danger; that he rendered the victim incapable of helping herself; that he put her into harm’s way, and that the risk was obvious. You can see the fact that he had parked on the train tracks. No doubt the evidence would show that he was aware of the fact that these tracks were frequented by trains. You can actually hear the train coming in the body cam footage.
If this woman is left with no justice due to qualified immunity, hopefully people will start paying attention. Qualified immunity serves no legitimate purpose. It’s the very definition of judicial activism. I’ll be watching this one to see what happens.
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.
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.
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.
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 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.
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.