Category Archives: First Amendment

Update: Court Rules on Video Depositions and Youtube

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This is a case where plain-clothed police officers snuck into my client’s house through a window, searched his house without a warrant or other legal justification, found nothing and left. But they got caught on hidden surveillance cameras. 

Long story short, there was no justification for their actions. No search warrant, no exigent circumstances and certainly no consent. Those are the only three justifications under the Fourth Amendment. As it turned out, the only purported reason they were there was to serve a civil summons, as the landlord had begun eviction proceedings due to late rent payments. That provided no justification to enter or search the home. The matter had not gone to court yet. There was no eviction order. The officers were investigated and disciplined. The only excuse given was that they didn’t read the paperwork, and thought there was an eviction order, and figured that since they’re a drug task force, they’d search for drugs while they were at it. We filed a federal Section 1983 suit for Fourth Amendment violations and are currently set for trial early next year.

The last update was about the video depositions in the case. I took the video depositions of the officers from the video. They all pled the Fifth Amendment. Supposedly the FBI is investigating them. It’s pretty clear now after having exchanged discovery and taken almost all the depositions, that this is the story of a drug task force unit designed to use so-called “knock and talk” investigations in lieu of the more-conventional and old-fashioned search warrant procedures.

The video depositions were pretty dramatic. The lawyers for the officers filed a motion for a protective order with the federal court, asking the Court to prohibit me from uploading the video deposition footage to Youtube. They claimed that exposing the sworn testimony of the police officers to the public endangered officer safety and prejudiced the in the eyes of potential future jurors. 

A few days ago, the Court ruled, granting them a protective order during the pendency of the case. Then, when the case is over, I have to request the Court to vacate the protective order. But as the Court noted, a few things could happen in the meantime that could moot the issue, such as a settlement agreement, or the video depositions becoming public record, which they ultimately will in the very near future. Here’s the order:

The Court stated: 

“[T]he Court currently is not in a position to determine whether the protective order should terminate upon adjudication of the case, as that determination depends upon factors not yet known. The issue may become moot, as it is possible that the parties will agree not to publish the videotaped depositions as part of a compromise and settlement. The depositions may also become part of the public record, creating a presumption of public access which would significantly alter the Court’s analysis of the protective order .”

The Court further held that the protective order was not an unconstitutional prior restraint on free speech. The Court noted that: 

“The Supreme Court explicitly stated that a protective order supported by good cause and limited to pretrial civil discovery, without restricting dissemination of information found in other sources, does not offend the First Amendment.”

The Court also denied the defendants’ request for attorney fees, finding that my actions were “substantially justified.” 

As I warned them from the very beginning, trying to suppress this is only going to draw more attention to it. Even if I personally am restricting from uploading the footage to my Youtube channel, what about third parties? Restricting me from using the footage is only going to cause third parties to obtain everything that becomes public record and use it. The coverup is always worse than the original crime. The coverup itself becomes the story. 

Cops Caught Covering or Disabling Surveillance Cameras | Is that Legal?

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Two days ago, I took the deposition of two police officers in a civil federal rights lawsuit (section 1983 case) involving an allegation that my client’s exterior home surveillance camera was disabled by the officers. They both pled the Fifth Amendment. Here’s a photo of the actual disabled camera:

This is from the “Creepy Cops Search Case,” which if you’ve been following my work, you’re well-aware-of. But what about situations where they don’t destroy anything, but just cover or move the camera?

I came across some recent unrelated footage of police officers covering, concealing, or otherwise redirecting, a home’s surveillance cameras. When this hit the interwebs, it of course immediately sparked discussion. Police officers defended the footage, claiming officer safety reasons to do this, with some claiming that they always do this as a matter of policy. Is this legal? Is this a Fourth Amendment violation? Is it a First Amendment violation? Is this a crime?

There are a few issues with this. Are we talking about doing this pursuant to the execution of a search warrant for the subject residence. And if so, does the search warrant specifically authorize the seizure of surveillance cameras themselves, rather than the footage?

Stopped For Flashing & Handcuffed For Laughing | Unreal WV Traffic Stop

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Isn’t that weird that I just did a video on the issue of whether there’s a constitutionally protected right to flash your lights at oncoming traffic, in order to warn them of an approaching speed trap, and then what do you know, it ends up happening again right here in West Virginia. This brand new exclusive footage you’re about to see however, is the worst of those incidents I think you’ll ever see anywhere on Youtube. Frankly, I’m disgusted by the actions of this deputy with the Nicholas County, West Virginia Sheriff’s Department.

Here’s the citation William was given:

This was Corporal J.D. Ellison with the Nicholas County Sheriff’s Department. His behavior was disgraceful. But I’m also disappointed in the aftermath here. Corporal Ellison shamefully gave this man a ticket for two alleged violations – at least on paper – which were allegedly having an unsigned registration card, which is total garbage, as well as an alleged “special restrictions on lamps,” which was a frivolous charge meant to fabricate the nonexistent crime of warning fellow Americans about government waste, laziness and tyranny. 

Here’s the police report by Cpl. Ellison:

You’re really not going to believe this, but William went to court yesterday in the Magistrate Court of Nicholas County – that’s Summersville, West Virginia. He represented himself. He was being prosecuted by a prosecuting attorney from that county, with the matter presiding before Nicholas County Magistrate Michael Hanks. I’m really shocked to tell you that Magistrate Hanks convicted this man of the alleged crime of “Special Restrictions on Lamps.” He did dismiss the bogus charge of having an unsigned registration card because it’s thankfully not even on the books anymore – which by the way was the offense for which William was placed in handcuffs.

Between the prosecutor and the magistrate, which of those great legal minds thought it was a good idea to convict William of “special restriction on lamps?” Just looking at the statute, which is clearly not meant to apply to this situation, it makes an explicit exception, citing a different statute that allows for flashing lights for the purpose of warning the operators of other vehicles “of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking or passing…, etc.” 

Here’s the prior video I did on flashing lights to warn of a speed trap:

Stay tuned for updates. I’m going to help William….

WV Town Official: We Don’t Allow the First Amendment Here

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Jeff Gray, the “Godfather” of First Amendment auditors on Youtube, this week stopped in a couple different small towns here in West Virginia, publishing two videos of his encounters. Jeff is a great guy. If you’re not familiar with him, he has a sort of raggedy cardboard sign he holds up that says “God Bless the Homeless Vets.” Then he goes to some public place and just says, “God Bless the Homeless Vets.” He’s super polite and respectful. People see the sign and they react however they’re going to react. Thus we see protected First Amendment activity, occurring in a traditional public forum, and then we see how our government servants end up reacting to that activity.

Jeff stopped in Chesapeake, West Virginia, where he was nearly trespassed off public property by a police officer, ironically standing in front of a veteran’s memorial. But for the most part, that one had a positive ending and overall experience. I encourage you to go watch that video.

Then, Jeff went to Mount Hope, West Virginia. When Jeff told me he was coming through West Virginia, asking where he should go, I told him about Mount Hope, where I exposed the fact that they had this police officer who was essentially terrorizing motorists on a nearby four lane highway. So apparently that’s where he chose to go, and you can watch the full video on his channel about just what happened. But here’s a few snippets. As Jeff explains in his videos, panhandling is a constitutionally protected activity. Here’s Jeff’s Mount Hope video:

Since government employees apparently have a difficult time grasping this concept, let me explain panhandling, as it relates to the First Amendment.

First of all, a municipality cannot just prohibit panhandling within its jurisdiction. A town cannot just decide that the First Amendment doesn’t apply within its borders. Theoretically, though they would likely be inviting litigation, a town could impose certain reasonable time, place and manner restrictions on panhandling. They would have to establish some legitimate content-neutral public safety reason for doing so, and then provide available alternatives that are still adequate. Traditional public forums such as parks, sidewalks, etc., could not be completely foreclosed from the activity. 

Panhandling, or “begging” is protected by the First Amendment. The Supreme Court has held that the solicitation of “charitable contributions” is protected speech. Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). The Fourth Circuit has cited a sister circuit recognizing that, “We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not significant for First Amendment purposes.” Loper v. New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir.1993); cited by Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) (“We agree that begging is communicative activity within the protection of the First Amendment.”).

The location of this activity is extremely relevant to its protections. Places such as parks, streets, and sidewalks fall into “the category of public property traditionally held open to the public for expressive activity.” Indeed, the Supreme Court has repeatedly referred to public streets and sidewalks as “the archetype of a traditional public forum.” (Snyder v. Phelps 2011). If a municipality seeks to regulate protected speech in a traditional public forum, they may impose reasonable content-neutral time, place, and manner restrictions that are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). If the regulation is content-based however, the courts apply strict scrutiny. Under strict scrutiny, a regulation will be upheld “only if it is the least restrictive means available to further a compelling government interest.”

Thus step one is determining whether strict scrutiny applies, i.e., whether the regulation is content-based. If not, then intermediate scrutiny applies. The government’s restriction of speech is content-neutral if it is “ ‘justified without reference to the content … of the regulated speech.’ ” (Christian Legal Soc’y v. Martinez 2010). On the other hand, a restriction is content-based if it was “adopted … because of disagreement with the message [the speech] conveys.” “The government’s purpose is the controlling consideration.”

Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny—that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” 

In Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015), the 4th Circuit evaluated a Henrico County, Virginia ordinance that banned panhandling and several other forms of solicitation on all county highways. The Court established several evidentiary standards for the government to meet to satisfy intermediate scrutiny for regulating First Amendment activity such as panhandling. 

The Court requires the government to “present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary.” Additionally, they have to prove that they actually tried other methods to address the government interest the regulation is designed to address, i.e., public safety concerns, flow of traffic, etc. If “available alternatives” are provided by the government, they need not be the speaker’s first or best choice, or provide the same audience or impact for the speech. But they must be adequate. If the speech is panhanding, the individual cannot be required to do so from a place where there is no target audience. If the speech is handing out leaflets, the speaker cannot be removed to only a spot where there is nobody to hand leaflets. 

In short, someone engaging in protected speech generally cannot be subjected to disparate treatment based on the content of their speech whatsoever, and need only be subjected to regulation for legitimate content-neutral reasons only so long as the regulations are minor logistical restrictions, leaving adequate opportunity to continue to express the protected speech.

Therefore, a municipality cannot just prohibit panhandling within its jurisdiction. A town cannot just decide that the First Amendment doesn’t apply within its borders. Theoretically, though they would likely be inviting litigation, a town could impose certain reasonable time, place and manner restrictions on panhandling. They would have to establish some legitimate content-neutral public safety reason for doing so, and then provide available alternatives that are still adequate. Traditional public forums such as parks, sidewalks, etc., could not be completely foreclosed from the activity. Certain key high-traffic areas or spots could possibly satisfy this test. Certain key time restrictions could possibly satisfy the test. But just an outright ban within a town of all panhandling? Absolutely not. That would violate the First Amendment just as much as a ban on all protected speech within city limits. 

My Client Films Officer Appearing to Overdose After Suspect Allegedly Throws Narcotics

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It hit the news yesterday that several Oak Hill, West Virginia police officers had supposedly overdosed after narcotics were thrown at them by a suspect they were attempting to arrest. I was already looking into the science behind these claims when I found out that a client of mine actually witnessed what happened, and began filming with his cell phone.

“Sheriff’s Office: Two officers in Oak Hill overdose after suspect throws drugs at them” was the headline. Here’s the media report:

What were the chances that a client of mine just happened to be driving by when it happened? Compare the footage with the press release and let me know your thoughts on the matter. I have some initial thoughts, but want to look into it some more.

Here’s the statement issued by the sheriff’s department:

Here’s the footage:

“Creepy Search Cops” Ask Federal Court to Restrict My YouTube Channel

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I know that many people are following my progress in the Creepy Cops Search Case out of Putnam County, West Virginia, where drug task force police officers were caught on camera illegally searching my client’s house. That apparently includes those officers and their lawyers in the pending federal civil rights lawsuit. This is the most recent update about the case:

On Friday, the defendant officers’ lawyers filed a motion completely centered on my Youtube channel, requesting an order prohibiting me from ever publishing video deposition testimony of those police officers. Basically they’re requesting court approval for a coverup. Now, important First Amendment issues are implicated. Police already have qualified immunity. The one remedy given to us by Congress it to sue them. Now they want to turn that process into something akin to Family Court or abuse and neglect proceedings, where government gets to operate in secrecy and without accountability and exposure. Here’s the motion they filed:

Here are their attached exhibits:

The video depositions in the Creepy Cops Search Case haven’t even been taken yet. They’re actually scheduled to be taken in a few days. I already agreed to postpone them several times already at their request, because they were concerned that the FBI was investigating them. So I gave them time to evaluate their situation and hire or consult criminal defense attorneys before they testified. Now, they want to testify essentially in secret. Why? Because posting their video testimony allegedly puts them in danger. They went through the prior videos I published on this situation and cherry picked the craziest ones they could find, and presented them to the Court as the basis for why I should be forever silenced from exposing their misconduct. 

At the end of every video I tell you that freedom is scary. Why? Why is it scary? Fear is the tool that tyrants use to subject us and take away our freedoms. Over and over again. From the beginning of recorded history to the present. Of course police officers in America, if given the choice, would choose to operate in secrecy. They don’t want to be recorded. They don’t want to give you their names – they just want yours. 

“White Male or Black Male?” | Cops Assume Citizens on Porch Are Criminals – Part 2 Body Cam

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Here is part 2 of the body cam footage from the arrest of Jason Tartt by Deputy Dalton Martin of the McDowell County, West Virginia Sheriff’s Department. The part 1 video and lawsuit is posted here.

Bystander Films Cops Bothering Homeless Lady and Gets The Special Treatment

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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:

Trespass Arrest of First Amendment Auditor – Meh, Someone Must Own It

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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: 

  1. A consensual encounter;
  2. An investigatory detention; and
  3. 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. 

Cops Trespass on Private Property and Demand ID For Imaginary Crime

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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.