Join me at 7pm Live – The SCOTUS issued an opinion today protecting the sanctity of the Fourth Amendment protections of the home, which also served as an anti-red-flag ruling, restricting the police from performing warrantless searches of homes to seize firearms.
This is just in time for recent updates on two of our search and seizure cases with the same or similar issues: the Putnam County drug task force search case and the WV Family Court Judge Search case.
This afternoon, oral arguments were held in the case of Walker v. Donahoe – the AR-15 open carry case out of Putnam County, West Virginia. I’ll discuss what happened in a live debriefing at 6:30 pm, which is in 4 minutes…..
Here’s a link to the actual recording of the arguments, if you missed it live:
Here’s an excerpt of my argument, as taken by my staff:
Here’s the video of the underlying incident, if you haven’t seen it:
I realized that I never posted about oral arguments in the Wayne County case, nor the Supreme Court decision which was handed down while we were driving home. On Tuesday, oral arguments were held, for around an hour, which seemed to me to go very well. I honestly was surprised to find out that they had ruled against us. Here’s the debrief video I made that evening, which includes an excerpt of my rebuttal arguments during the oral arguments hearing:
If I had to guess, I would speculate that they found a procedural means to rule against us, such as standing, or perhaps the existence of the so-called “second signature,” where my client unknowingly signed the letter presented to the Governor by the State GOP. At least I hope so, because otherwise the Court will have modified legislation from the bench – because the law was very clearly on our side.
Here are some of the media reports from the day:
For about an hour earlier this afternoon, lawyers for Governor Justice and the West Virginia Republican Party presented arguments against a lawyer for the chairman of the Wayne County Republican Executive Committee.
A few weeks ago, the governor picked Booth, whose family runs a highway safety contracting business, to fill the vacancy. But Booth’s name had not appeared on a list originally submitted by Wayne County political leaders.
The argument before justices focused on who has the authority to submit names to fill such vacancies and the proper procedure for doing so.
“This is one political party committee that is elected by Wayne County voters engaged in a power grab or attempted control by the state executive committee that has no direct connection to the local Wayne County voters,” said John Bryan, counsel for the Wayne County GOP chairman.
“That is the whole point: that they ended up with somebody they voted for or necessarily even knew but they ended up with somebody that, according to the records, donated to Governor Justice when he ran for office in 2016 as a Democrat.”
He was referring to records showing Booth as a $1,000 maximum-amount donor to Justice’s first run, when he won as a Democrat before changing parties after a few months.
I was obviously freshly perturbed when I gave this interview:
Attorney John Bryan, who is representing Maynard, was disappointed by the ruling.
“The governor has been able to get around the law whenever he pleases for the past year now,” Bryan told The West Virginia Record. “When the full opinion is issued, I suppose we’ll find out how he did it this time. … State laws throughout the country were not followed in the 2020 election, and not a court in the land seems to care.”
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 (quotingFranks 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).
Yesterday, we took the West Virginia Governor to federal court on a challenge against the “Mask Mandate” and “Stay at Home” executive orders following the Governor’s threats on Friday the 13th to start having people arrested and charged with “obstruction of justice.” Fortunately, the Governor backed down from his threats, and the West Virginia Attorney General has joined us in our condemnation of those threats, even before we were able to get to court. I’ll unpack what was said, what the Court ruled, and where we’re going from here.
Here is the Governor’s response to our Emergency Motion for Temporary Restraining Order and Preliminary Injunction, which is set for hearing in federal court on Monday morning. It was just filed last night, and I’m working on filing a reply, which is due by this afternoon.
You’ll notice that they argue that the Governor’s words are meaningless – that only his actual written executive orders should be reviewed, according to his lawyers. Throughout the response they mention that the Governor is utilizing some vague concept of executive emergency power. However, there is no such thing. They essentially argue that there is nothing the federal judiciary can do to stop him. We’ll see……
I had two separate federal civil rights lawsuits where excessive force incidents were captured on video by the exact same camera. One of them resulted in an epic legal drama, which established law still used today. In fact, this case is now discussed in two different law school text books on civil rights law. It was an amazing journey, and I spent several years in Parkersburg, West Virginia litigating these cases.
The first video was the “Sawyer” case. Here was my quote from the front page of the Charleston Gazette newspaper, back when the appellate decision was issued:
“Today the citizens of West Virginia, Maryland, Virginia North Carolina and South Carolina have more constitutional protections than they did yesterday,” John Bryan, Sawyer’s attorney, wrote in a statement.
“As a result of today’s ruling, which affirmed the District Court for the Southern District of West Virginia, law enforcement officers will be taught to treat people differently, and that if they fail to do so, there will be consequences. Because of Brian Sawyer, and the federal court system, millions of people have more freedom. And that is something I am very proud of.”
Here is the order issued by the Southern District of West Virginia, throwing out the jury verdict, and finding as a matter of law, that the officer committed excessive force. I still haven’t heard of anything like this happening in any other case:
And here is the Fourth Circuit opinion affirming the order. Despite being labeled “unpublished,” as per the court rules, this opinion has now made its way into two different law school text books on civil rights law:
Here’s a long-overdue update on the James Dean case, out of Wayne County, West Virginia. If you’re wondering what has taken so long, the West Virginia Medical Examiner’s Office took over a year to issue the death certificate.
LIVE – Freedom is Scary Episode No. 21, on the Fourth Amendment protections, or lack thereof, surrounding police officers searching and seizing pedestrians and vehicle occupants during traffic stops.
Mentioned in the video:
“All power is vested in, and consequently derived from, the people; […] magistrates are their trustees and servants, and at all times amenable to them.”
– George Mason
On “Consensual Encounters:” 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.” Id. (quotingTerry v. Ohio, 392 U.S. 1, 19 n.16 (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.” Id. (quotingUnited States v. Gray, 883 F.2d 320, 322 (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.” SeeFlorida v. Bostick, 501 U.S. 429, 436 (1991). “[T]he free-to-leave standard is an objective test, not a subjective one.” United States v. Analla, 975 F.2d 119, 124 (4th Cir. 1992).
What is Reasonable Suspicion?
Reasonable suspicion is a “commonsense, nontechnical” standard that relies on the judgment of experienced law enforcement officers, “not legal technicians.” See Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (internal quotation marks omitted). To support a finding of reasonable suspicion, we require the detaining officer “to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.” See United States v. Foster, 634 F.3d 243, 248 (4th Cir.2011). (United States v. Williams, 808 F.3d 238 (4th Cir. 2015)).
What is Probable Cause?
Probable cause exists when the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is com- mitting, or is about to commit an offense.” – Michigan v. DeFillippo (SCOTUS 1979).
Length of Stop?
It is now settled that when a lawful traffic stop is made, “an officer … to gain his bearings and … acquire a fair understanding of the surrounding scene … may request identification of … [vehicular] passengers….” United States v. Soriano–Jarquin, 492 F.3d 495, 500 (4th Cir.2007); see also Branch, 537 F.3d at 337 (“If a police officer observes a traffic violation, he is justified in stopping the vehicle for long enough to issue the driver a citation and determine that the driver is entitled to operate his vehicle.”); United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004) (“[D]uring a routine traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation.”)….. “Additionally, ‘a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.’ ”) (quoting [963 F.Supp.2d 591] Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). U.S. v. Taylor, 963 F.Supp.2d 580 (S.D. W.Va. 2013).
In the context of traffic stops, police diligence encompasses requesting a driver’s license and vehicle registration, running a computer check, and issuing a ticket. If a police officer seeks to prolong a traffic stop to allow for investigation into a matter outside the scope of the initial stop, he must possess reasonable suspicion or receive the driver’s consent. However, “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” U.S. v. Mason, 628 F.3d 123, 131, quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009). “Direct[ing] one minute of  questioning to the passenger [of the stopped vehicle] does not alter the calculus.” Id. at 132 (emphasis in original).
Additionally, “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). That rule, the justification for which is officer safety, extends to passengers, as well. Wilson, 519 U.S. at 414–15, 117 S.Ct. 882. (United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012)).
[The officer] may take other actions that do not constitute “searches” within the meaning of the Fourth Amendment, such as conducting a dog-sniff of the vehicle, Caballes, 543 U.S. at 409, 125 S.Ct. 834, but again only “so long as those inquiries [or other actions] do not measurably extend the duration of the stop.” Johnson, [555 U.S. at 333] 129 S.Ct. .