In Richmond, Virginia, Kaya had just picked up some groceries and was walking home. She noticed some police officers bothering a homeless lady sleeping on a bench. She stopped to film them. You know what happens next…. She reached out to me and asked me to share her story.
Here’s the full video with the raw bodycam footage:
On August 19, 2022, Joshua Gibbons arrived at Aerojet Rocketdyne Corporation in Jonesborough, Tennessee. He sent me a link to his video of him getting arrested shortly afterwards. A few other people submitted this video as well.
The police officer, a deputy with the Washington County Sheriff’s Office, jumped straight into a warrantless arrest here. He needed probable cause to arrest Josh without an arrest warrant. There are three levels of interaction between a police officer and an individual:
A consensual encounter;
An investigatory detention; and
A warrantless arrest.
Number 1 requires nothing, so long as it’s objectively consensual. Fourth Amendment protections to not apply to consensual encounters.
An investigatory detention requires reasonable suspicion. Fourth Amendment protections do apply to detentions. They must be reasonable.
A warrantless arrest requires probable cause.
Here, the officer appears to have skipped directly to number 3, a warrantless arrest, which requires probable cause.
What is the basic criminal trespass law in Tennessee?
State v. Hollingsworth, 944 S.W.2d 625 (Tenn. Crim. App. 1996).
Before an accused can be convicted of criminal trespass, the State of Tennessee must prove beyond a reasonable doubt that (a) the accused entered or remained on the property, or a portion of the property, of another person, and (b) the accused did not have the owner’s effective consent before entering the property. Tenn.Code Ann. § 39-14-405(a)…
The accused’s knowledge that he or she did not have the “effective consent” to enter the property may be inferred from “(1) personal communication to the [accused] by the owner or by someone with apparent authority to act for the owner,” and (2) “[f]encing or other enclosure obviously designed to exclude intruders.” Tenn.Code Ann. § 39-14-405(a)(1) and (2).
State v. Lee (Tenn. Crim. App. 2000).
Knowledge that the person did not have the owner’s effective consent may be inferred where notice against entering or remaining is given by personal communication to the person by the owner. Tenn. Code Ann. § 39-14-405(a)(1).
Was he on public or private property? If he was on private property, did Josh have knowledge that he was on private property without the owner’s consent? As far as the issue over public or private property, more information is needed. With the information given however, we know the following:
Josh subjectively believed he was located within the public right of way. Being right on the edge of the public road, he very well may have been. You’ll notice that there was a fence a little further off the road. Josh was nowhere near that fence. Josh credibly demonstrated to the police officer that he subjectively believed he was on a public right of way, and not trespassing onto a private owner’s land. Secondly, the police officer didn’t know one way or the other whether Josh was within a public right of way, or on private property. Moreover, even if Josh was on public property, the officer admittedly didn’t know who the owner was.
Therefore, there’s a great case to be made that Josh could not have violated Tennessee’s criminal trespassing statute. Even if he was on private property, there’s no evidence that he had the requisite criminal intent to commit trespassing. Additionally, the officer performed almost no investigation prior to his warrantless arrest. Surprisingly he didn’t even bother to request Josh’s ID first. He just arrested him.
In the early morning hours of October 12, 2021, Corey Jones got up early to work on some property improvements at his home, clearing brush around his acreage. He got out there early because he had to take his kids to school. Since it was still dark out, he used a headlamp. Unbeknownst to him at the time, the horse-owning Karen next door called 911 on him, complaining that she saw a guy in the woods on her neighbor’s property. She did this despite the fact that she had no idea who her neighbor was. Officers from the Pope County, Arkansas, Sherriff’s Department arrive, listen to her explanation, and then trespass onto Corey’s property, confronting him, and then arresting him. Everything that happens here is outrageous. But also instructive. Corey is a subscriber to my channel, and has graciously allowed me to share what happened.
When the officers arrive – this is Sgt. Damon McMillan and Deputy Hayden Saffold, both of the Pope County Sheriff’s Department – the Karen again tells them same story. Of particular importance here is the fact that she clearly does not allege that Corey trespassed onto her property. She’s claiming that she was subjectively scared of someone she saw on someone else’s property, which in fact was the property owner. She admittedly has no idea who owns the property. She makes no allegation of any crime, other than expressing her own fear of nothing.
Now the officer notices Corey on his property. He now becomes the one trespassing, as he confronts Corey. Of course, he’s got to have that ID – like an addict. Does he care that he’s on private property and has no idea who the owner is? Of course not.
Corey ends up being arrested for violation of § 5-54-102. Obstructing governmental operations, which provides that:
(a) A person commits the offense of obstructing governmental operations if the person:
(1) Knowingly obstructs, impairs, or hinders the performance of any governmental function;
The Arkansas courts have defined “governmental function as “any activity which a public servant is legally authorized to undertake on behalf of any governmental unit he serves.”
Thus the Arkansas obstruction statute does not specifically provide a mandatory requirement to provide ID to a police officer. Rather, it criminalizes the providing of a false ID to an officer. However, it does criminalize “obstructing” any activity which a public servant is “legally authorized to undertake…”
Arkansas Rule of Criminal Procedure 3.1 provides that:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct….
Thus it appears that the officers in Arkansas may detain individuals if they suspect that individual committed a felony or certain dangerous or damaging misdemeanors. It would be a stretch to even include trespassing into that category – especially where they have no complaint from the owner of the property, and are actually themselves trespassing and confronting the actual property owner.
The footage was very clear that the property owner, who did identify himself as owning the property, expressed that they were not welcome. I really don’t see any basis for the officers having a reasonable suspicion of any crime having been committed here. Nor does it appear that if they had such suspicion of simple trespassing, that their actions would have been justified.
The officers are clearly worried about ending up on Youtube or in the media, as well as the fact that they suspect Corey of being anti-police, which is ironic under the circumstances. A solid case could be made here that what they actually are doing is retaliating against Corey, in violation of his First Amendment rights.
Sadly, part of the story here is what happened afterwards. I’d like to tell you that the charges were dismissed. But apparently Corey ended up being convicted of the obstruction charge. On what basis? I really don’t know. But I do know that the judge who convicted him, I’m told, was Judge Don Bourne of Pope County, Arkansas.
A little over a week ago, our old friends KARK in Little Rock reported that the Arkansas Supreme Court officially suspended Judge Don Bourne without pay for ethical violations, including mistreating litigants in her courtroom and failing to appoint lawyers for criminal defendants. Basically, for running a kangaroo court. I also found this gem, where KARK showed footage of Judge Bourne threatening a defendant with prison rape, among other things. It was only a two week suspension, but thankfully, after his term expires in 2024, he will never again be allowed to serve as a judge in Arkansas. Why even allow him to remain at all?
Hopefully an Arkansas lawyer can swoop in and save the day here. I wish I could help, and I’d be happy to, to the extent that I can. But I’m not an Arkansas lawyer. Perhaps there’s more to the story, I don’t know, but the footage shows what the footage shows. I trust in the footage. And I really feel bad for Corey Jones. He was mistreated by his government – by a couple of tyrant thugs, egged on by a despicable Karen. I’d love to see a civil lawsuit here. Usually, however, you have to win on the underlying criminal charges – which is probably why Officer King George, III is pushing them. He wants to know why anyone would be anti-government or anti-police? Because of swamp creatures like you.
A few weeks ago I posted the video of my clients in McDowell County, West Virginia encountering a similar type of tyranny within the curtilage of their home. The point was, you can’t be on my curtilage without my consent and demand an ID – even if you have reasonable suspicion. Here, however, it looks like we’re not dealing with curtilage, but rather what the courts call “open fields.” Generally, unfortunately, there are no federal Fourth Amendment property protections for open fields. The line between a home’s curtilage and the adjacent open fields can sometimes be a grey area.
However, that doesn’t mean that state trespassing and criminal procedure laws aren’t applicable. I see no Arkansas law that allows police officers to trespass on your private property against your consent and demand your ID to ascertain whether you are trespassing on your own property. Quite the opposite.
Federal Fourth Amendment protections will always apply to the person. Federal law prohibits an investigative detention – i.e., give me your ID or I’ll arrest you – in the absence of reasonable suspicion. The Karen neighbor alleged to crime that was committed. She alleged only her objectively unreasonable and irrational fears. There was no allegation of trespassing. A police officer’s own irrational subjectively unreasonable fear that someone theoretically could be trespassing on a particular property, without more, cannot be valid reasonable suspicion. Especially under these circumstances.
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.
Is there a constitutionally protected right to flash your lights at oncoming traffic, in order to warn them of an approaching speed trap? There’s remarkably few rulings out there on this issue, and a quick search reveals very little guidance from the judiciary and the legal community. But that doesn’t mean it isn’t a common occurrence. I hear about it from time-to-time and there’s a few instances out there if it being captured on video. Perhaps my favorite is an old video from the guy they called the Godfather of First Amendment auditors, Jeff Grey.
This occurred in Florida, near Jacksonville, on I-10, and involves a classic Florida speed trap, full of unnecessary government employees who have nothing else better to do than to harass people and flex their egos and authority. Jeff sets the trap with the bait. And the cops can’t resist it.
Here’s the original video:
What we have here is an acknowledgment that Jeff was subjected to a traffic stop as a sole result of his flashing his lights. There’s no allegation of speeding, seat belt, or other pretext for the stop. Remember: every traffic stop is already an investigative detention, by definition, and therefore reasonable suspicion must be present to justify the invasion of Fourth Amendment protections. Now, reasonable suspicion is usually pretty easy for even the dumbest of police officers to articulate, which encourages them to lie. They just have to say they saw you violate some traffic law. Here, had they known ahead of time who they were dealing with, they probably would have made something else up. But the first thing that popped out was feigned concern about protecting or helping Jeff. They know that’s a lie. Jeff knows that’s a lie. They know that Jeff knows that’s a lie.
If this were true, there would be no Fourth Amendment justification to continue to detain Jeff. However, the footage clearly shows that they indeed continue to detain him. What likely happens is that the officers now go back to their police cruisers, and discuss the situation. Now they’re aware that Jeff was filming them. For police officers who were already willing to lie about the reason they pulled Jeff over, this could be a problem. As you’ll see, their strategy is to stop the recording. But Jeff refuses, calling their bluff.
Even now in 2022, there’s still no clear federal law on the issue on whether there’s a federally protected First Amended right to warn oncoming traffic about a speed trap. But there’s a wealth of clearly established law on the right not to be detained by the police in the absence of reasonable suspicion. If the officers in Jeff’s video had been honest about the reason they were pulling Jeff over, and if they were able to point to a Florida statute he was violating, they may have been justified in their actions, or at the very least entitled to qualified immunity. However, they basically admitted that they pulled him over in retaliation for warning other motorists, without bothering even to lie about a pretextual reason for doing so, thereafter repeatedly trying to intimidate him into turning off his camera.
There are no Supreme Court cases on this. There are no federal appellate cases, to my knowledge. There are only a couple of U.S. District Court opinions, and a couple of state circuit court opinions. There was a 2019 memorandum opinion from the U.S. District Court for the Western District of Wisconsin holding that a policy and practice of stopping, detaining, and citing drivers who flash their headlights to warn oncoming drivers of a speed trap violates his right to free speech under the First Amendment. This was Obriecht v. Splinter.
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” It protects conduct, symbols, and non-verbal communication that express or convey a particularized message reasonably understood by viewers. Texas v. Johnson, 491 U.S. 397, 404-06 (1989). Flashing headlights could easily be placed into the category of expressive conduct. In the Obriecht v. Splinter case, this point was conceded by the state. However, even expressive conduct may be regulate by the government. For example, speech that incites or produces “imminent lawless action,” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), or is integral to criminal conduct, such as fighting words, threats, and solicitations, United States v. White, 610 F.3d 956, 960 (7th Cir. 2010), is not protected by the First Amendment.
Another similar case from the U.S. District Court for the Eastern District of Missouri held in 2014 that this conduct was entitled to protection under the First Amendment. (Elli v. City of Ellisville, Mo). At least two state circuit courts have found that drivers have a constitutional right to flash their headlights. (State of Oregon v. Hill (2014); State v. Walker (Tenn. 2003)).
The problem with the lack of precedent on this issue leads to a big problem for potential plaintiffs: qualified immunity. The standard for qualified immunity requires establishing that the police officer violated clearly established law. Where there is almost no established case law, that’s going to be a tough task.
However, as we saw from Jeff’s video, if police are going to pull people over for flashing their lights at other motorists, they need to be honest about what they’re doing, and identify a state or local statute they allege is violated by the relevant conduct. Then, the victim of that stop can mount a First Amendment challenge. This is how the law will become clearly established. At the same time, if they’re not being honest, only video footage is going to protect the motorist from pre-textual lies, which if documented, will establish liability for a Fourth Amendment violation, with no good argument for qualified immunity.
Big update in Chris Wiest’s case in Kentucky, where several Kentucky police officers are being held accountable for their misconduct. Tonight he joined me for a live video, and we discussed developments in the case, at length. This is the case where the officers denied (under oath) striking the guy they were arresting, later finding out that video footage showed otherwise. This led to Officer Thomas Czartorski later being charged with perjury.
Update video with the footage:
Here’s the recent court order in the case, discussed in the videos:
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 July 29, the U.S. Court of Appeals for the Fifth Circuit released a published opinion in the case of Sylvia Gonzalez v. Edward Trevino, Mayor of Castle Hills that now appears to be headed to the U.S. Supreme Court. This is an important First Amendment Retaliation case where qualified immunity is the key issue. Qualified immunity is the most important issue in the fight for the civil rights of the American people. It must be defeated, which is why you need to learn about cases like this, which the media will never tell you about.
The case is being litigated by the Institute for Justice. They filed suit for the plaintiff, Sylvia Gonzalez, a retired resident of Castle Hills, Texas, who decided to run for city council, and became the first Hispanic councilwoman in Castle Hills history. I spoke with the Institute of Justice attorneys litigating this case on the same day the opinion was released, and they seemed very optimistic about the future of this case at the Supreme Court.
At Ms. Gonzalez’s first council meeting, she accidentally took home with her petition which had been debated at the meeting. It was laying in her stack of paperwork. It was later discovered that the petition was in her possession, which as it turns out, was technically a misdemeanor crime. The petition sought to remove the city manager. This town has fewer than 5,000 residents. During her campaign, Gonzalez learned that many residents were unhappy with the performance of the city manager. As her first act in office, she submitted this petition to the council. It was entirely unintentional that she ended up taking the petition home with her. She was supporting this petition and had no reason to suppress it or hide it. It was purely unintentional, and it was her first meeting as a councilwoman.
Well, the city leadership was unhappy with Sylvia Gonzalez. After the mistake was discovered, the mayor, Edward Trevino, requested that a Sergeant in the Castle Hills Police Department file a criminal complaint alleging that Gonzalez took the petition without consent. The first officer to investigate, a Sergeant, determined that no crime had been committed. Well, that was unacceptable to the mayor and the chief, so they turned to a so-called “special detective.” The detective decided that Sylvia committed a violation of Texas Penal Code §§ 37.10(a)(3) and (c)(1), which provide that “[a] person commits an offense if he . . . intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.”
Special Detective Alex Wright obtained a warrant, and instead of using the typical procedure of obtaining a summons, rather than a warrant, for a nonviolent crime, as well as going through the district attorney’s office, the detective instead obtained a warrant and hand-delivered it to the magistrate himself. The use of this process prevented Sylvia from using the satellite booking function of the Bexar County Jail system, making her unable to avoid spending time in jail when arrested.
There is clear evidence here that this was done with a retaliatory motive, in response to Sylvia Gonzalez’s support of the petition to remove the city manager and disturb their swamp status quo. Sylvia’s arrest enabled the city leadership to remove her from office, as well as to intimidate, punish, and silence her. There was plenty evidence of this. In fact, Sylvia was charged under a statute that has never before or since been used to arrest someone in her position. A “review of the misdemeanor and felony data from Bexar County over the past decade makes it clear that the misdemeanor tampering statute has never been used in Bexar County to criminally charge someone for trying to steal a nonbinding or expressive document.” Indeed, most indictments under the statute involved fake government IDs, such as driver’s licenses, social security numbers, and green cards.
But here was the big problem: technically there was probable cause to charge her under the statute that was charged. So the question is, can law enforcement arrest and prosecute Sylvia in retaliation for her protected free speech, so long as probable cause exists to do so? In other words, this is like a mayor ordering the arrest of a political opponent for some minor crime like jaywalking, where technically the crime was committed, but where there never would have been any prosecution at all, but for retaliation against free speech. This is the dispute, and there is a split in the federal circuits.
In the 2018 U.S. Supreme Court case of Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018), the Court held that a municipality could be liable under a Monell Claim where its leadership decides to selectively prosecute a particular person in retaliation for their speech. The federal circuits have differed on how broadly to interpret this holding. The Fifth Circuit, in last week’s opinion, has chosen a narrow interpretation.
The jaywalking example is the ideal example, which was discussed in the opinion:
“If an individual who has been vocally complaining about police conduct is arrested for jaywalking,” the claim should not be dismissed despite the existence of probable cause because “[i]n such a case, . . . probable cause does little to prove or disprove the causal connection between animus and injury.”
The Court “conclude[d] that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
Basically, their conclusion was that since no prior council-person had been prosecuted by the city for taking a petition home with them, then there was no evidence to support a theory of retaliatory selective prosecution. This is of course, absurd. This is like saying that law enforcement may engage in retaliatory prosecutions, so long as they choose a creative statute that has never been used before against the same type of defendant.
The fact is, that Sylvia Gonzalez engaged in highly protected First Amendment conduct, and that as a result of that conduct, a conspiracy of government officials took a material adverse action against her for purposes of retaliation. This is already prohibited under federal law. As the dissenting federal judge noted in his dissent, the police officers and city leadership have been on notice of a string of legal authority, dating all the way back to 1689, that it’s unconstitutional to jail people in response to their petitioning the government.
Hopefully the U.S. Supreme Court will overturn this. The Institute of Justice is doing some great work, not just in this case, but in many different cases across the country. They are likely even jumping into one of my cases, so stay tuned for that. Check out the youtube video the Institute did on the Gonzalez case, back when they first started. There’s a donation link. They need donations now, more than ever. Please donate, if you want to help fund the fight against qualified immunity and government corruption. Here’s the Institute’s video on the case, with donation link:
Here’s the district court order, which originally denied qualified immunity, and which the defendants appealed to the Fifth Circuit:
A video went viral on Tik Tok showing Ring doorbell camera footage of a police officer removing a family’s “F” Joe Biden flag from its display on the front of the home. The homeowner explained in a subsequent video that he had been previously threatened with arrest for good ‘ole disorderly conduct if he continued to display the flag. Is this a violation of the First Amendment? What about the Fourth Amendment?
Back in February, I discussed the “F” the police T-shirt case out of Ohio, where the 6th Circuit issued an opinion denying qualified immunity to police officers sued for arresting a man for “disorderly conduct” for wearing a shirt containing protected First Amendment speech. In that case, the Court made very clear that police academies have to stop teaching young officers that any use of profanity is disorderly conduct. To the contrary, the law is clear that the First Amendment protects the use of profanity, so long as it’s unaccompanied by other conduct that could be construed as disorderly. Thus, the use of the “F word” in and of itself cannot be criminal conduct.
“It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’”
Cohen v. california scotus 1971
Not only can the “F word” be used, but it can be used to verbally criticize the police. Or, in this case, Joe Biden. As the U.S. Supreme Court has held, “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….”
Moreover, expressing criticism of a sitting U.S. President, via use of a flag, is pure First Amendment protected activity. The homeowner mentions in his follow up video that he had researched the town ordinances, and none were applicable, but rather that the mayor lived down the street and held an opposing political ideology. I’ll note that, even if there were a town ordinance, it would be unconstitutional, as a violation of the First Amendment. Now an HOA would be another matter, potentially. Why? Because that’s a private organization, and therefore cannot violate the First Amendment.
Also, what about the Fourth Amendment? As I’ve explained numerous times, the front porch of your home, which would include a flag sticking out of it, is considered part of your home – your castle – for Fourth Amendment purposes. If a police officer walks up and seizes a part of your home – something off of it – is that a seizure? You better believe it. Is it illegal? Illegal in this context means “unreasonable.” Unreasonable, when it comes to your home, is defined with a question: was there a warrant? No, then it’s illegal as a violation of the Fourth Amendment.
This morning I received multiple links and copies of this video that’s been circulating, showing a West Virginia State Trooper, in what appears to be inside a family’s home without a warrant. Apparently it was originally posted to Tik Tok, and then removed for some reason. It appears to involve a police response to a church traffic cone, which resulted in the homeowner apparently banging on the church’s door at some point. This trooper shows up, walks in the guy’s home, admittedly without a warrant, and without permission. Then the trooper makes a move on the phone, followed by some sort of altercation at the end. Here’s the video, then I’ll address some legal issues which I see:
Okay, to be clear, I know nothing about this situation, other than what is apparent from the video. So what do we know? The purpose for the officer’s presence appears to be for something relatively minor. A dispute of some sort between this guy and a church. We also know that there is no warrant. The officer claims that he was justified to enter and remain inside the man’s home due to his subjective concern that the guy might shoot him. We’re not told what this concern is based on, other than any individual could theoretically shoot anyone at any given moment. We also know that the guy is not in the home with the homeowner’s permission. That much is is said twice during the video, by my count. Also, we see that there appears to have been some sort of use of force by the trooper towards the end of the video. He definitely appears to strike the camera in some way. Whether or not the guy holding the camera was struck or not, we can’t see. But it does sound that way.
So here are some of the questions presented. Is this officer correct that he can just walk in somebody’s home under these circumstances, and remain there? Let’s go over the basics of how the Fourth Amendment applies to the home.
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.” U.S. Const. amend. IV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States (SCOTUS 1967). “At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States (SCOTUS 2001).
Inside the home: searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal as the default rule, according to the Fourth Amendment. Outside the home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.” Thus no warrant is required outside the home, unless a reasonable expectation of privacy exists. Searches or seizures inside a home require a warrant, or a valid exception.
The main exception is consent. A search conducted pursuant to a valid consent is constitutionally permissible. Voluntariness is the standard. Was the defendant’s will overborne? Voluntariness of the consent depends on the totality of the circumstances. Schneckloth v. Bustamonte (SCOTUS 1973). Officers may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs. Kentucky v. King (SCOTUS 2011).
The only other valid exception is exigent circumstances. Law enforcement may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with injury. This is known as “exigent circumstances,” and generally refers to some emergency situation. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. This is an objective rule. The officers’ subjective motivation is irrelevant. An action is “reasonable” under the Fourth Amendment regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. Brigham City v. Stuart (SCOTUS 2006).
Exigent circumstances can also apply to allow an entry under some limited circumstances to prevent the imminent destruction of evidence. Minnesota v. Olson (1990), or if the officer is in hot pursuit of a fleeing suspect. United States v. Santana (SCOTUS 1976). However, also keep in mind that police cannot create their own exigent circumstances by engaging or threatening to engage in conduct that violates the Fourth Amendment. Their conduct must be reasonable. Kentucky v. King (SCOTUS 2011). Lastly, a home’s front porch, including the area immediately surrounding the house, also enjoys protection as part of the home itself. Where information is gathered by physically entering and occupying that area without consent, it’s a search of the home.
But is the Fourth Amendment triggered by just entering a home, or even standing on the porch? Understand that you have “consensual encounters,” and then you have Fourth Amendment searches or seizures. Consensual encounters do not trigger the Fourth Amendment.
As a general matter, police officers are free to approach and question individuals without necessarily effecting a seizure. Rather, a person is seized within the meaning of the Fourth Amendment “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio (SCOTUS 1968). Such a seizure can be said to occur when, after considering the totality of the circumstances, the Court concludes that “a reasonable person would have believed that he was not free to leave.” Terry v. Ohio; also United States v. Gray (4th Cir. 1989)). Similarly, when police approach a person at a location that they do not necessarily wish to leave, the appropriate question is whether that person would feel free to “terminate the encounter.” See Florida v. Bostick (SCOTUS 1991).
A traffic stop, for instance, is always a seizure under the Fourth Amendment. Entering a home to engage in conduct not explicitly or implicitly permitted by the homeowner, is likewise a seizure under the Fourth Amendment. Florida v. Jardines (SCOTUS 2013).
Here, if there was no warrant for this state trooper to engage in a search or seizure inside the home, his doing so was presumptively unconstitutional, as a violation of the Fourth Amendment. He clearly did not have consent to be inside the home. It was evident, and apparently undisputed in the video, that the officer entered without permission and wasn’t welcome. It was also apparent that the officer didn’t care. Thus without consent, entering and occupying the home against the will of the homeowner, a Fourth Amendment seizure occurs that is preemptively unconstitutional.
Don’t forget that he also seizes the camera recording him, which is perhaps a seizure of the homeowner himself, along with the footage that was being recorded. That very well may implicate the First Amendment as well, as you have a right to record the police inside your home, whether this officer, who also ironically says he is also recording, likes it or not.
But what about exigent circumstances? The officer implies that he’s relying on exigent circumstances – that he followed the homeowner into the house, worried that he was going to be shot by him. He provides no details supporting this alleged concern. I’m skeptical that there’s any basis for this. He can’t call it hot pursuit of a fleeing suspect, because the guy doesn’t appear to have been under arrest.
This is where the officer’s body cam footage, if it exists, which it appears to from the visible camera on his abdomen, would come in handy. I’d also like to review the 911 records and audio, in order to fully understand the facts. It seems a stretch to me to justify exigent circumstances, based on what we see in the video. If he was truly in hot pursuit, he would have seized the guy immediately and taken him into custody, rather than walk in the house and do more of a knock and talk conversation. Which by definition isn’t supposed to take place in the guy’s living room. I’m sure there’s quite a bit of case law on point to this situation, but this is all just generally speaking, without having researched this scenario. There doesn’t appear to be an emergency situation. No medical emergency. No indication that someone’s flushing cocaine down the toilet. No baby choking, and so on.
So to answer your questions, it looks pretty bad to me, and I wouldn’t doubt it if this trooper might get his wish to be sued, assuming the homeowner wanted to do so. I also wouldn’t doubt it if disciplinary action is taken, given the fact that the video is now out there. However, more information is needed to evaluate his likely only avenue of defense – exigent circumstances. Just my two cents. I’ll provide an update if I learn more about it.