Live video at 6:30 p.m. with my Kentucky counterpart, civil rights attorney Chris Wiest, at 6:30 pm…. Also about his new lawsuit against the KY governor:
Brand-new police body-cam footage shows an outrageous detainment and arrest of an innocent guy shopping in Walmart with his poor toddler. I break it down, explain some of the relevant law, and show what happened. This couldn’t have gone much worse. Multiple Fourth Amendment violations….. and then there’s Walmart.
Reasonable suspicion is required to perform an investigative detention. Probable cause is required to perform a warrantless arrest. The “Graham Factors” are assessed to analyze the legality of the use of force which occurred. I’d guess the police here will fail miserably on all three.
I had two separate federal civil rights lawsuits where excessive force incidents were captured on video by the exact same camera. One of them resulted in an epic legal drama, which established law still used today. In fact, this case is now discussed in two different law school text books on civil rights law. It was an amazing journey, and I spent several years in Parkersburg, West Virginia litigating these cases.
The first video was the “Sawyer” case. Here was my quote from the front page of the Charleston Gazette newspaper, back when the appellate decision was issued:
“Today the citizens of West Virginia, Maryland, Virginia North Carolina and South Carolina have more constitutional protections than they did yesterday,” John Bryan, Sawyer’s attorney, wrote in a statement.
“As a result of today’s ruling, which affirmed the District Court for the Southern District of West Virginia, law enforcement officers will be taught to treat people differently, and that if they fail to do so, there will be consequences. Because of Brian Sawyer, and the federal court system, millions of people have more freedom. And that is something I am very proud of.”Ruling Against Wood Deputy in Assault Stands
Here is the order issued by the Southern District of West Virginia, throwing out the jury verdict, and finding as a matter of law, that the officer committed excessive force. I still haven’t heard of anything like this happening in any other case:
And here is the Fourth Circuit opinion affirming the order. Despite being labeled “unpublished,” as per the court rules, this opinion has now made its way into two different law school text books on civil rights law:
Here’s a long-overdue update on the James Dean case, out of Wayne County, West Virginia. If you’re wondering what has taken so long, the West Virginia Medical Examiner’s Office took over a year to issue the death certificate.
Here’s the original dash cam footage and audio from a case I handled a few years back that’s educational in several respects. Perhaps the biggest takeaway from this footage, in my mind, is towards the end of the video, where you hear a state trooper come up to the deputy sheriff who had shot my client, and inform him that he was going to be the officer investigating the shooting, and basically told him to stop talking, and to go home and sleep on it first. Indeed, once he did so, the narrative changed from what can be heard in the video.
You hear the shooter tell his version of what had occurred three times at the scene. None of which suggested that the shooting was justified. Not surprisingly, the official written statement which comes out a few days later, is nothing like what he said three times at the scene. Instead, the shooter later claimed to have seen my client with a gun before he fired.
Here are the rounds which traveled through the door.
Also, you can see the boot print from where he kicked the door:
Since this was a police shooting of someone who was not yet in police custody, the legality of the use of force is judged using the Fourth Amendment, under the “Graham Factors.” Here are the actual jury instructions which were to be used at the jury trial:
Your verdict must be for the plaintiff (and against the defendant) for violation of the plaintiff’s Fourth Amendment right to be free from excessive force if all the following elements have been proved:
First, the defendant shot the plaintiff through the front door of his home, and
Second, the force used was excessive because it was not reasonably necessary to shoot the plaintiff through his front door in order to interview the plaintiff, and
Third, the defendant was acting under color of state law.
In determining whether the force was “excessive,” you must consider: the need for the application of force; the relationship between the need and the amount of force that was used; the extent of the injury inflicted; and whether a reasonable officer on the scene, without the benefit of hindsight, would have used that much force under similar circumstances. You should keep in mind that the decision about how much force to use often must be made in circumstances that are tense, uncertain and rapidly changing.
Deadly force may be used only if it is reasonably believed necessary to prevent a significant threat of death or serious physical harm to the officer or others. A warning must be given, if possible, before deadly force may be used. You must decide whether the officer’s actions were reasonable in light of the facts and circumstances confronting the officer without regard to the officer’s own state of mind, intention or motivation. In making this determination, you may take into account the severity of the crime at issue, whether the plaintiff posed an immediate threat to the safety of the defendant or others, and whether the plaintiff actively resisted arrest or attempted to evade arrest by flight.
If any of the above elements has not been proved, then your verdict must be for the defendant. “Deadly force” is force intended or reasonably likely to cause death or serious physical injury.
This is essentially the same test which is used in criminal prosecutions of police officers for excessive force violations – i.e., Breonna Taylor, and so on. There never was a criminal charge against this particular officer. The West Virginia State Police performed the official investigation and found that the shooting was justified. Thus, our lawsuit was the only litigation connected to it. Ultimately, we settled the case – only days before trial.
Yesterday afternoon we filed a federal civil rights lawsuit against the police officers involved in the viral video showing police (without a warrant) forcing my client, James Walkup, to crawl to his own front door, only to have his head smashed with a boot on his front porch. If you haven’t seen the video, here it is:
This happened in the Western end of Greenbrier County, West Virginia. And here’s the filed lawsuit, now pending in the Beckley Division of the Southern District of West Virginia. We made claims for unlawful search and seizure, as well as use of excessive force. The defendants are one Rainelle, WV police officer and two West Virginia State Troopers.
Video update Part 2, providing more background and evidence in the case, and summarizing the lawsuit:
Here’s the damage to Mr. Walkup’s head:
Here’s the Rainelle Police Department officer who smashed Mr. Walkup’s head:
Here’s the West Virginia State Trooper who grabbed the phone and turned it off, and who we allege attempted to delete the video footage (which was retrieved in the trash of the phone’s “cloud”):
The Civil Rights Lawyer explains how and when a citizen can sue the police for excessive force under federal civil rights law. It seems that everyone has an opinion on police use of force in recent months. In this video, I’ll explain the law of excessive force, which dictates when a justified use of force becomes an unlawful use of force and a federal civil rights violation. This has been my primary practice area the past decade or so, so I’ll point out some of the practical lessons I’ve learned along the way.
Streamed LIVE today at noon (well 12:05).
This is a video about an encounter at the home of my client, Matt, in March of 2019, which occurred in Charmco, West Virginia, which is in Greenbrier County. It shows police arriving at his home to arrest a friend who was visiting him, who happened to have an outstanding warrant.
Matt didn’t want to be involved one way or the other. He was afraid, so he turned on his phone and began recording and he laid down. He didn’t want to get shot. But they forced him to crawl to the door on his hands and knees. When he got there, he got head-stomped by the first officer.
They didn’t know he was recording. The second officer, a West Virginia State Police trooper, noticed the phone filming, and he covered it with his hands, and turned the phone off. The officers then deleted the video footage. But it was recovered.
The Rittenhouse shootings were the next logical step of violent riots, combined with government leaders who allow them to occur. What happens when the right to riot collides with the natural rights or life, liberty and the pursuit of happiness? Or more specifically, the right to life, i.e., the right to self defense? It may be a new normal in 2020, but we build courthouses for a reason: to sort out the facts, and apply the law. The difficult part is to ensure a fair trial without the media poisoning the potential jury pool with misinformation, and misnomers, such as “armed vigilante,” “assault rifle,” “peaceful protestors,” and so on, and to let the true facts fall where they may. In the end, our Founders demanded, and ensured, that we have the right to a jury of our peers for a very good reason. That’s the only thing standing in between an individual in this position, and a lifetime of being locked away in a cage.
The facts can be sorted out. There are multiple videos of the incident. There will be many pictures and screenshots, and slow motion, or frame by frame versions of the incidents. Easier to determine is, what sort of laws will be applied here?
Possession of Firearms in Wisconsin and Illinois:
Wisconsin firearms law provides for open carry of loaded rifles and pistols for those 18 and older not otherwise prohibited from possessing firearms. Unless Rittenhouse’s age has been incorrectly reported he would be in violation of these statutes. Similar statutes exist in Illinois.
Further, in Wisconsin and Illinois, providing an underaged individual with a firearm is a felony. It seems safe to assume that Rittenhouse’s enthusiasm for firearms was supported at least in some measure by his legal guardians. If they knowingly lent him use of the AR he carried in Kenosha they may face charges under these statutes.
Transportation of Firearms between Wisconsin and Illinois:
Federal law pre-empts the prosecution of illegal transportation via 18 U.S.C. §?926A which provides:
“Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”
Any number of state statutes in Wisconsin or Illinois may govern the illegal importation or exportation of firearms where the “peaceable journey” exemption of 18 U.S.C. § 926A does not preempt. Rittenhouse is in jeopardy here if his age is reported correctly as he is not legally able to possess the AR platform he possessed in Kenosha in either Wisconsin or Illinois.
In general, and Wisconsin is no exception, a “self-defence” defence to homicide (i.e. “justifiable homicide” or “excusable homicide”) or the use of deadly or potentially force requires several elements. Those claiming self defence must:
1. Have the reasonable belief that…
2. …they or another person…
3. …are in imminent…
4. …danger of death or great bodily harm, and…
5. …that the use of deadly force is necessary to prevent said harm.
Key elements of the defence to hone in on are:
Reasonability. Would a reasonable person fear for your life under the circumstances presented?
Imminent. Is the threatened death or great bodily harm about to occur that moment, or at some other time? It has to be literally about to occur.
Wisconsin incorporates these elements in its excusable homicide statute thus:
“A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” (Wisconsin Updated Statutes 2019 § 939.48(1))
Further, many jurisdictions do not permit defendants to use self-defense as an argument if deadly force was used in a confrontation the defendant him or herself precipitated. Wisconsin is one such jurisdiction, terming the restriction “Provocation” providing:
“A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defence against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defence, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defence.” (Wisconsin Updated Statutes 2019 § 939.48(2))
Use of Deadly Force By Rittenhouse
Was there a reasonable belief of imminent death or great bodily harm?
Did Rittenhouse provoke the aggressors? In both episodes, Rittenhouse appears to be attempting to retreat. In the first, he is shown on video being chased, and having something thrown at him. In the second episode, they are clearly chasing him, and attacking him. One attacker had a skateboard, and another had a pistol. Moreover, he appears to be using every effort at escaping, i.e., exhausting his reasonable means to escape, in the second episode.
What about the illegal possession of a firearm? That remains to be seen. Self-defense should still apply, whether or not it utilizes an illegally possessed firearm, which is not a requirement of the basic self-defense analysis. Then again, I’m not a Wisconsin lawyer, so…….
In “Freedom is Scary” LIVE No. 3, I discuss Brazilian Jiu-Jitsu (“BJJ”) with former law enforcement officer and BJJ academy owner/coach, Adam Martin.
Why? Because ever since the death of George Floyd, “chokehold” has been the word of the day. Trump brought them up in his June 16, 2020 Executive Order, and now many states have issued orders, or enacted legislation, banning the use of so-called “chokeholds” by police officers.
The problem is, that the term doesn’t mean what they think it means, and in doing so, they’re changing the rules of self defense for police officers. As with other civil rights, if you allow it to be done to one group of people, it always grows like a virus to include groups of people who were not intended to be affected. In this video we discuss what that means.
On June 16, 2020, President Donald Trump (R) issued an executive order, titled Executive Order on Safe Policing for Safe Communities, addressing changes to policing on June 16, 2020.The order directed the U.S. Department of Justice to create an independent credentialing body that would develop a set of criteria for state and local law enforcement agencies to meet in order to be awarded federal grants. The order stated that the criteria should address excessive use of force, include de-escalation training, and ban the use of chokeholds, except when the use of deadly force is lawful.
The chokehold provisions of Trump’s E.O.:
(i) the State or local law enforcement agency’s use-of-force policies adhere to all applicable Federal, State, and local laws; and
(ii) the State or local law enforcement agency’s use-of-force policies prohibit the use of chokeholds — a physical maneuver that restricts an individual’s ability to breathe for the purposes of incapacitation — except in those situations where the use of deadly force is allowed by law.
Just what in the hell does that mean anyways…..
Many states have followed suit, banning “chokeholds.” Most notably, I’ll point out that Connecticut actually got the terminology correct, successfully banning pretty much every good submission you’ll see on the UFC.
On June 15, 2020, Lamont signed an executive order to change law enforcement strategies. The order banned “the Connecticut State Police from using chokeholds, strangleholds, arm-bar control holds, lateral vascular neck restraints, carotid restraints, chest compressions, or any other tactics that restrict oxygen or blood flow to the head or neck,” according to a press release from the governor’s office.
You’ll have to watch the discussion to see what Adam has to say about this policy, but it has something to do with not being a state trooper in Connecticut…..