Federal Lawsuit Filed in the Creepy Cops Caught on Video Case

The lawsuit was filed today on behalf of Dustin Elswick, against Putnam County, West Virginia, along with four police officers involved in the infamous “Special Enforcement Unit.” These are the cops who were caught on hidden camera searching the inside of Dustin’s home. Although they cut the wire on an outside surveillance camera, they were apparently unaware of the cameras inside the home.

This is a federal “Section 1983” lawsuit alleging the violation of federal constitutional rights; namely, the Fourth Amendment right to be free from unreasonable search and seizure. A warrantless search of your home is automatically unconstitutional in the absence of one of two exceptions: consent, or exigent circumstances (emergency), neither of which apply here. Two prior federal lawsuits have already been filed against the SEU thus far for similar allegations in the Johnson case, as well as the Dillon case. The remedy is an award of money damages, along with reasonable attorney fees and expenses.

There was an internal investigation, as the news reported, but we never received information about the outcome. That sheriff has since been replaced.

Here’s the Complaint:

Here’s the original video:

Here’s the update video:

Does the First Amendment Only Apply to Media? Is There a Right to Record?

Do you have to be a journalist to have First Amendment protections to film in public? Is there a right to record police or other government officials in public? Let me tell you what the federal courts have said…..

To record what there is for the eye to see, or the ear to hear, corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public. See PG Publ’g. Co. v. Aichele, 705 F.3d 91, 99 (3d Cir. 2013); Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (quoting Fields v. City of Phila., 862 F.3d 353, 359 (3rd Cir. 2017)).

Under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas. Fields v. City of Phila., 862 F.3d 353, 360 (3rd Cir. 2017) (“The First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material.” (citation omitted)); See also ACLU v. Alvarez, 679 F.3d 583, 599–600 (7th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 651, 184 L.Ed.2d 459 (2012) (holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cell phone); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“[T]he First Amendment protects the act of making film, as there is no fixed First Amendment line between the act of creating speech and the speech itself.” (quotation omitted); W. Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017) (agreeing with several sister circuits that recording the conduct of officials in general is protected First Amendment speech); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir.2011) (holding there is an “unambiguous[ ]” constitutionally protected right to videotape police carrying out their duties in public); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (finding plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest”). 

Furthermore, there can be no doubt that the public has the right to record police officers and government officials from the vantage point of standing on their own private property – and indeed, standing in their own front yard, or within their home.

Can the recordings then be seized by police?

Recently, the Fourth Circuit observed in the context of a claim of seizure of cell phone video footage by law enforcement, that we live “[i]n an era in which cell phones are increasingly used to capture much of what happens in daily life” and that such recordings are protected from seizure by law enforcement under the Fourth Amendment. Hupp v. State Trooper Seth Cook, 931 F.3d 307, 329 (4th Cir. 2019).

But, keep in mind, they could still be subject to seizure without a warrant under the exigent circumstances doctrine…..

Police Officer Fired and Charged with Perjury after Deposition

Remember my video with Kentucky Lawyer Chris Wiest about his excessive force lawsuit involving the Kentucky State Police back in March? One of the police officers involved was fired and charged with perjury after he was caught lying in the deposition in Chris’ civil lawsuit.

A former Kentucky State trooper has been criminally charged with perjury after denying under oath that he beat a man with a flashlight in April 2020.

Thomas Czartorski was named in a lawsuit alleging troopers used excessive force against Alex Hornback of Shepherdsville while executing a bench warrant. The lawsuit also alleged that Hornback’s parents recorded the officers beating him, and that a trooper deleted the footage. But a home security video captured the incident. A lieutenant with the Kentucky State Police accused Czartorski in a complaint filed Thursday of lying during a January deposition when he said he didn’t use any force during the arrest. Czartorski turned himself in Friday afternoon at the courthouse on a felony charge of first-degree perjury, according to his attorney, Josh Schneider. The charge carries a penalty of one to five years in prison.

https://kycir.org/2021/07/09/this-former-ky-trooper-denied-using-force-under-oath-the-video-says-he-did/

Here’s a video I uploaded yesterday on it – Freedom is Scary Ep. 67:

Kentucky Judge Invalidates All of Governor Bashear’s State of Emergency Actions

Today my colleague from Kentucky, Chris Wiest, received an awesome ruling from the Circuit Court of Boone County declaring that all of Governor Andy Bashear’s emergency orders and actions are unconstitutional and void. The ruling was in the state-court challenge to the governor’s emergency powers executive orders, filed by Wiest on behalf of Beans Cafe’ & Bakery.

Dr. Stephen Petty, an actual expert in masks, testified at the trial about their uselessness under the circumstances in which they’re being idolized. Here’s an excerpt from the order pertaining to Dr. Petty. For those bureaucrats and social media tyrants who would censor this, this is from an actual court order issued today. Not that you care:

Stephen E. Petty, P.E., CIH, testified as an expert and was accepted as such without objection. Mr. Petty has served as an expert witness in approximately 400 cases relating to toxic or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. He also served as an epidemiology expert for the plaintiffs in the Monsanto “Roundup” cases, and for those in the Dupont C8 litigation. In connection with his service as an expert, he was deposed nearly 100 times and has provided court testimony in approximately 20 trials. Mr. Petty holds nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health Agency. Mr. Petty helped write the rules on risk assessment for the State of Ohio and has trained Ohio’s risk assessors.

Mr. Petty explained that the field of his expertise is “to anticipate and recognize and control things that could hurt people, everything from making them sick to killing them.” He testified that, in this context, he has analyzed the use of masks and social distancing in connection with Covid-19. He testified that both the six-foot-distancing rule, and mask mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In addition, masks are not respirators and lack the limited protections that respirators can provide.

The N-95 respirator, which he states is in the bottom class of what may be classified as a respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further explained that an N-95 will not even filter above .3 microns if it is not used in accordance with industry standards. Among the requirements, respirators must be properly fitted to seal along the face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are often utilized as surgical masks, are “not intended to keep infectious disease from either the surgeon or from the patient infecting each other” but only to catch the “big droplets” from the surgeon’s mouth.”

According to Mr. Petty, masks have no standards, are not respirators, and do not even qualify as protective equipment. In contrast, respirators have standards, including rules that state respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent saturation. In addition, standards for respirators also require users to obtain a medical clearance because the breathing restriction can impair lung function or cause other problems for persons having such limitations. Putting those persons in a respirator can harm their well-being.

Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to “big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr. Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it becomes completely ineffective if 3% or more of the contact area with the face is not sealed.

Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are commonly worn by persons with facial hair, and may be contaminated due to repetitive use and the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever, either to the wearer or others.

He explained that the big droplets fall to the ground right away, the smaller droplets will float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty testified that the duration of time that particles remain suspended can be determined using “Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a six-foot rule have any meaning?”

Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear masks. However, he called this “at best dishonest.”61 As an example on this, he pointed to CDC guidance documents where, on page 1, it recommends wearing a mask; but then on page 6, admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne particles.”62 According to Mr. Petty, those agencies have smart individuals who know better. Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny aerosols. And on this, he states that he insisted that fact early on. He also points to a more recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that could be aerosols . . . .”

Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University out of Palo Alto. According to that study, “both the medical and non-medical face masks are ineffective to block human-to-human transmission of viral and infectious diseases, such as SARS, CoV-2 and COVID-19.”64 The Court finds the opinions expressed by Mr. Petty firmly established in logic. The inescapable conclusion from his testimony is that ordering masks to stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot- distancing requirements fare no better.

The judge summarizes the situation nicely:

It is obvious from even a cursory review that the orders issued over the past fifteen months “attempt to control” and seek “to form and determine future rights and duties” of Kentucky citizens. These included ordering the closure of all businesses, except those the Governor deemed essential. He ordered churches closed, prohibited social gatherings, including at weddings and funerals, prohibited travel, and through CHFS, even prohibited citizens from receiving scheduled surgeries and access to medical care. And then there is the order that everyone wear a mask. These are, undeniably, attempts to control, set policy, and determine rights and duties of the citizenry. Except in those instances where the federal courts have stepped in, Defendants assert authority to modify or re-impose these orders at their sole discretion. Consider, for example, the recent modification of the mask mandate. It orders persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for others. That is setting policy and determining future rights and duties.

 At the hearing, Defendants took exception to the Attorney General’s characterization of the Governor’s actions as a “lockdown,” and argued that prohibiting persons from entering those restaurants is not the same as ordering that they be closed. But that doesn’t minimize the impact on those who lost their businesses as a result, or those in nursing homes condemned to spend their final hours alone, deprived of the comfort from loved ones (or even any real contact with humanity), or those citizens who the Governor prohibited from celebrating their wedding day with more than ten persons, or those he forced to bury their dead alone, without the consoling presence of family and friends (and who likewise were deprived of paying their final respects), or those persons who were barred from entering church to worship Almighty God during Holy Week, and even Easter Sunday, or those persons who were denied access to health care, including cancer-screenings, or those denied entry into government buildings (which they pay for with their taxes) in order to obtain a necessary license, and who were forced to wait outside for hours in the sweltering heat, or rain, purportedly to keep them from getting sick.

 What the people have endured over the past fifteen months—to borrow a phrase from United States District Judge Justin R. Walker—“is something this Court never expected to see outside the pages of a dystopian novel.” Yet, Defendants contend that the Governor’s rule by mere emergency decree must continue indefinitely, and independent of legislative limits. In effect, Defendants seek declaratory judgment that the Constitution provides this broad power so long as he utters the word, “emergency.” It does not. For this Court to accept Defendant’s position would not be honoring its oath to support the Constitution; it would be tantamount to a coup d’état against it.

Here’s the order itself:

Yes, life is now a dystopian novel. Let’s hope this patriot judge’s order stands up on appeal in the state appellate courts in Kentucky. And thanks to Chris Wiest and the AG of Kentucky for fighting the good fight. The order notes that the permanent injunction against the governor goes into effect on June 10, 2021 at 5:00 p.m.

The “Outlaw Barber” Arrested for Refusing to Close During the Lockdown Files Civil Rights Lawsuit

Today we filed suit in the case of the “Outlaw Barber,” Winerd “Les” Jenkins, a 73 year old combat veteran and former 27-year Deputy U.S. Marshall, who was arrested for refusing to close his barbershop during the Governor’s lockdown in April of 2020. We filed a Section 1983 civil rights lawsuit in federal court, in the Northern District of West Virginia.

The case was detailed last year in a Federalist article titled, West Virginia Barber’s Arrest Shows Failings Of The Bureaucratic State:

When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.

His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.

He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer. The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order.

We asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. It’s already been assigned a case number. Read it for yourself:

I’ve already revealed the body cam footage from one of the deputies, which caught much of the interaction on video:

Updates on the Drug Task Force Search Case and the Family Court Search Case

On Friday we filed a lawsuit against Putnam County and the individual members of their “SEU” – Special Enforcement Unit – for an illegal search of a family’s residence in Putnam County, West Virginia in April of 2019. These were the same guys from the Dustin Elswick video. Here’s the full complaint (sorry it was omitted earlier, but NOW here it is):

Then this morning we received motions to dismiss from the defendants in the Family Court Judge Search case. Here’s the memorandum arguing for dismissal for the judge, based on judicial immunity, and somewhat surprisingly, the 11th Amendment:

Lastly, here’s the memorandum arguing for dismissal for the county and the deputies, arguing qualified immunity:

We’ll go through these in tonight’s live video update in Freedom is Scary, Episode No. 58. Join me live at 6:30 p.m. ET:

We sue the Governor at the Supreme Court over his failure to follow State law in filling the current legislative vacancy

Here is the petition for Writ of Mandamus we filed this morning with the West Virginia Supreme Court of Appeals, asking them to force the West Virginia Governor to follow West Virginia law in choosing between the three qualified candidates presented to him by the Wayne County Republican Executive Committee to fill the vacancy in the legislature left by the resignation of Del. Derrick Evans:

Basically, the State Republican party has usurped the powers and authority of the Wayne County Republican voters, by attempting to take away their authority to choose a list of three qualified candidates to present to the Governor to fill the empty seat in the House of Delegates following the January 9 resignation of Del. Derrick Evans.

The Governor was presented with a list of three qualified candidates on January 14. He had five days to choose from the list. Instead the new Acting Chair of the West Virginia Republican Executive Committee took over the process, and created a new list – this time removing one of the three names and inserting a new name. This disenfranchises the Republican voters of the 19th Delegate District in Wayne County. The law is clear however, and places this power solely on the Wayne County Republican committee members – all duly elected by voters in their precinct.

Why is this important? Wayne County hasn’t had a Republican delegate in 100 years. Now that they’ve got one, the Governor is seeking to replace the choices of the voters with his own guy – who is an unvetted, unknown entity, since he didn’t run in the November campaign. Even more importantly, West Virginia law is clear and unambiguous that the local party (and this applies to all parties) gets to make the decision on the list of three to present to the Governor. This was put in place for a reason. To allow it to be thrown to the wayside is to allow a transfer of power from the people at the local level to some smoke-filled back room full of politicians and politicos.

Media Reports:

https://wchstv.com/news/local/petition-challenges-process-gov-justice-using-to-fill-vacant-wayne-county-delegates-seat

https://www.wvgazettemail.com/news/politics/wayne-county-chairman-files-petition-says-justice-violating-law-with-new-delegate-nomination-list/article_6e26da0e-e319-56c5-bdd4-a5fdc129b9ec.html

https://www.newsandsentinel.com/news/local-news/2021/01/controversy-erupts-over-selection-process-for-new-delegate/

https://www.herald-dispatch.com/elections/amid-challenge-from-wayne-committee-justice-selects-booth-as-district-19-appointee/article_d89eb457-01ea-550b-a673-2364184d7437.html

https://www.wvnews.com/news/wvnews/west-virginia-gov-justice-appoints-joshua-booth-to-fill-wayne-county-house-seat/article_17a43714-ddc7-5b2b-9854-f594bbac87f3.html

Update on the Jefferson County Superintendent Lawsuit

The first of my two clients in the federal civil rights lawsuit filed yesterday against the superintendent of Jefferson County Schools had her disciplinary hearing today, where the “evidence” was presented of her alleged involvement in the violence at the U.S. Capitol last Wednesday. Apparently the only evidence presented was a conspicuously-absent anonymous “report.” According to the attorney at the scene, Bondy Gibson, the superintendent who leveled the accusations, refused to provide a copy of the allegations, the name of the person making the allegation, or any of the social media posts the individual referenced.

Apparently, what actually happened, is that the Board office reviewed Pam McDonald’s social media page and came to the same conclusion that all have, which is that Pam did nothing wrong and broke no laws. Unfortunately, however, the damage has already been done, and our lawsuit will continue. For instance, here’s a screenshot of a TV news story from this morning about my two clients:

Here’s another disgusting media report from WVDM, which was the direct recipient of the leak from the Jefferson County Schools smearing my clients. It announced that my clients “participated in riots in Washington D.C.” Can you imagine, your friendly school bus drivers may have rioted through the Capitol?

In case anyone misunderstood, in the WDVM article above, this was the exact quote:

The statement details that Superintendent Bondy Shay Gibson was made aware on Friday of the staff members’ participation that left the Capitol Building in shambles.

It turns out that no such evidence exists, apparently. But what about the smear letter the superintendent wrote yesterday which was provided to WV Metro News, where she said this:

On Friday, January 8, 2021, I received such a report that two employees had posted threatening and inflammatory posts on their Facebook pages, had been present at the Electoral protest march on Wednesday that erupted in violence, and had violated our leave policy.

Wait, first . . . about the leave policy…. how would one go about reporting whether one of your employees violated your leave policy? Do random people have access to your employee personnel files? Or was this “person” who made the report “a friend” of yours. Sort of like the “friend” prefaced in embarrassing Dear Abby letters? Does this friend happen an office in the school administration building with a sign on the door saying something like, “Superintendent?”

Secondly, about the “threatening and inflammatory posts” my clients supposedly made….. Where are they? I’m sure they were just misplaced….. They must exist, right?

If the goal was to drag these ladies through the mud, merely for their political affiliation and viewpoints, I guess it was a job well-done. They received all sorts of well-wishes from the tolerant and compassionate commenters among us. If only someone saved some sort of record of the ugly comments which were directed at my two innocent clients in the comments section of these defamatory pieces….. That would be a great way, not only to document the ugliness of the situation, but also to hold accountable the nasty individuals behind the keyboards who so recklessly and maliciously love to destroy the lives of their fellow human beings, based only on political disagreement.

It would be a shame if some of them ended up getting sued and held accountable for their online bullying….. Just a thought.

Jefferson County Schools Superintendent Violates First Amendment Rights of Two Employees and We Sue

You may have seen in the national news, and on social media, that the Superintendent of Jefferson County Schools, in Jefferson County, West Virginia, decided to come after school employees who attended the Trump Rally on January 6, 2020. At least two employees, both long-time school bus drivers, who attended the rally, and who never entered any prohibited areas near the Capitol, never witnessed violence, never participated in violence, destruction of property, trespassing, etc., were suspended on January 8, 2020, and remain suspended as of this time.

This afternoon we filed a federal Section 1983 civil rights lawsuit against the Superintendent, individually, for money damages. Here’s the filing:

Here’s a live video filmed just after we filed the lawsuit, going over the Complaint:

Also, I’ll be on the Tom Roton Morning Show Tuesday morning at around 7:30 a.m. It’s always a good discussion on hit show…..

Here’s where the school administrators leaked the false allegations against my clients to the TV News, despite it supposedly being a “personnel matter”:

Here’s an article from the WV Metro News, discussing the letter she released today, at about the same time we filed suit.

And here’s the letter itself, doubling down, essentially:

This is a blatant attack on the core of the First Amendment: the right to assemble and protest in a traditional forum of public speech, such as the U.S. Capitol. These clients did not pass into any prohibited area that day. They committed no crime while in Washington D.C. They’re exercise of free speech had absolutely nothing to do with their employment as school bus drivers for Jefferson County Schools. They just so happened to have a political activist superintendent.

Chicago PD Search Warrant Video and the Law on Wrong Address Search Warrants and Sloppy Police Work

Police officers with the Chicago PD traumatize a nude woman, who was just minding her own business in her home, which is caught on Video via bodycams. Her lawyer then dismisses her case because he misunderstood the law. Oops. You may have seen this case in the news, but I go behind the headlines and examine the incompetence not reported in the news, and explain what the law is for civil rights lawsuits following search warrant cases where there’s a wrong address and plain ‘ole incompetence.

You have to either allege that the warrant was invalid, or if that can’t be done, you have to attack the affidavit supporting the warrant. To succeed, Plaintiffs must prove Defendants “deliberately or with a ‘reckless disregard for the truth’ made material false statements in [their] affidavit” which were necessary to the magistrate’s finding of probable cause. Miller, 475 F.3d at 627 (quoting Franks v. Delaware, 438 U.S. 154, 155–56 (1978). Or, Plaintiffs must show Defendants omitted “material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.’” Id.

“To determine materiality, a court must excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit would establish probable cause.” Id. (internal quotations removed). “If the ‘corrected’ warrant affidavit establishes probable cause, no civil liability lies against the officer.”

“Reckless disregard can be established by evidence that an officer acted with a high degree of awareness of a statement’s probable falsity,” meaning an officer had “serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. (internal quotations removed). For omissions, “reckless disregard can be established by evidence that a police officer failed to inform the judicial officer of facts [he] knew would negate probable cause.” Id. (internal quotations removed). However, negligence or innocent mistake “will not provide a basis for a constitutional violation.” Id. (quoting Franks, 438 U.S. at 171).