Category Archives: First Amendment

Doxxed by a Senator: Free Speech Retaliation by Public Officials

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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 Right to Flash Lights to Warn Motorists of a Speed Trap? – Can They Stop You?

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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. 

Kentucky Officers Denied Qualified Immunity and Headed to Trial

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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.

Prior video:

Update video with the footage:

Here’s the recent court order in the case, discussed in the videos:

Police Harass Innocent Citizens on Their Porch – Lawsuit Filed Today

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

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

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

Here’s the footage:

Here’s the lawsuit:

Stay tuned for updates….

Fifth Circuit Gives Qualified Immunity to City Officials After Free Speech Retaliation Arrest of Councilwoman

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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.

Here’s the opinion:

21-50276_DocumentsDownload

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:

Gonzalez-Order-Denying-MTDDownload

And here’s the IJ’s response brief to the motion asserting qualified immunity to the district court, which is fantastic:

Gonzalez-Response-to-MTDDownload

Police Caught on Doorbell Video Removing FJB Flag

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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.

WV Trooper Walks in House and Demands to be Sued

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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. 

Local Town Victimizes Innocent Motorists with Officer Perjury Pottymouth

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Small Town Cops Exposed on Video and Held Accountable in Court

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

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

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

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

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

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

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

Update on the Family Court Judge Search Case – Motion for Summary Judgment Filed

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Today we filed a motion for summary judgment in the federal civil rights lawsuit against Family Court Judge Louise Goldston, arguing that she should be denied judicial immunity, as well as foreclosed from even arguing at trial that her actions didn’t violate the Constitution. In other words, the jury trial in her case should be limited to the issue of damages only. It’s unusual for the plaintiff in a lawsuit to file such a motion, but in this case, not only were her actions caught on video, but also already declared by the West Virginia Supreme Court of Appeals to have been unlawful and unethical.

On March 1, 2022, I finally had the opportunity to take Defendant Goldston’s deposition, which marked the 4th time she has testified under oath about the matter, by my count. The first several times she testified in her judicial disciplinary proceedings, when she was still facing possible suspension by the Supreme Court, she admitted that she made mistakes and acted unlawfully, and that she had violated multiple canons of judicial ethics. During her deposition however, with threat of suspension behind her, she was completely defiant, testifying that she is essentially above the law; that she doesn’t believe she did anything wrong; that the Supreme Court was wrong; that the disciplinary authorities engaged in a conspiracy against her; that she doesn’t regret threatening to arrest Mr. Gibson; and that she might even “do it again.” You really have to read it to believe it, which is why I’ve also attached the transcript of her deposition, below….

GibsonPlaintiff’sMemorandumInSupportOfHisMSJAgainstGoldstonDownload
Goldston DepDownload