Governor’s Response to our Federal Mask Mandate Challenge

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……

This is the federal lawsuit filed on behalf of the restaurant in Putnam County, West Virginia. We are still working on filing a larger lawsuit in state court.

ETA: Here’s our Reply to the Governor’s Response:

The tale of two videos: two police excessive force incidents caught on the same camera

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.”

Ruling Against Wood Deputy in Assault Stands

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:

Fourth Amendment protections surrounding the Search and Seizure of Pedestrians and Vehicle Occupants – FIS Live No. 21

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. (quoting Terry 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. (quoting United 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.” See Florida 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. [781].

When you can sue the police for using excessive force – FIS No. 20

The Civil Rights Lawyer explains how and when a citizen can sue the police for excessive force under federal civil rights law. It seems that everyone has an opinion on police use of force in recent months. In this video, I’ll explain the law of excessive force, which dictates when a justified use of force becomes an unlawful use of force and a federal civil rights violation. This has been my primary practice area the past decade or so, so I’ll point out some of the practical lessons I’ve learned along the way.

Streamed LIVE today at noon (well 12:05).

How to Strip an Officer of Qualified Immunity – Freedom is Scary Ep. 19

LIVE AT 12:05 today: The Civil Rights Lawyer explains “Qualified Immunity” which is widely misunderstood in the media, on social media, and in courtrooms. What is “Qualified Immunity? In this video, I’ll explain how to strip an officer of Qualified Immunity in three easy steps. Or maybe not so easy, depending on the type of case.

Qualified Immunity has been the subject of intense debate in recent years, and especially in recent months. Many commentators have criticized it as an example of the Court creating legislation from the bench, and in so doing having created a significant problem for citizens seeking to hold their government officials accountable for the violations of their civil rights.

Freedom Rally and Live Video with Gubernatorial Candidate Marshall Wilson in Lewisburg, WV

Since I mentioned the event on the Tom Roton Radio Show this morning and referred people to this site for more information, I guess I better post some information. Don’t miss this event. This will be the 2nd LIVE video with me and Marshall Wilson. This coming Monday, October 12, 2020, from 5:00-7:00 pm we will be live in person, and live on live stream at this Youtube link:

Marshall will be taking any and all questions. I’ll make sure that he answers questions coming across Youtube as well. Actually also Facebook, once I get the link up. This will take place outside my Lewisburg, West Virginia office, located on Court Street in downtown Lewisburg, West Virginia (directly across the street from the Lewis Theater). The actual address is 860 N. Court Street, Lewisburg, West Virginia 24901.

Here’s the audio from my radio appearance this morning on the Tom Roton Radio Show:

Video showing Rainelle PD and WVSP performing a warrantless search and seizure inside a home and using excessive force

This is a video about an encounter at the home of my client, Matt, in March of 2019, which occurred in Charmco, West Virginia, which is in Greenbrier County. It shows police arriving at his home to arrest a friend who was visiting him, who happened to have an outstanding warrant.

Matt didn’t want to be involved one way or the other. He was afraid, so he turned on his phone and began recording and he laid down. He didn’t want to get shot. But they forced him to crawl to the door on his hands and knees. When he got there, he got head-stomped by the first officer.

They didn’t know he was recording. The second officer, a West Virginia State Police trooper, noticed the phone filming, and he covered it with his hands, and turned the phone off. The officers then deleted the video footage. But it was recovered.

Tonight’s LIVE video: Prosecutors and Liberty – w/ Benjamin Hatfield, Republican Candidate for Prosecutor in Raleigh County

On with me tonight on Freedom is Scary, Episode 18, live, is Benjamin Hatfield, Esq., the Republican Nominee for Prosecuting Attorney of Raleigh County, West Virginia. Most state level prosecutors are elected politicians with party affiliations. They are enormously powerful, as demonstrated by the Rittenhouse and McCloskey cases. You can watch read here on this Youtube link, or on our Facebook page using Facebook Live. It will be simultaneously streamed to both. You can also submit comments and/or questions on both platforms.

In this video we’ll discuss what you need to know before voting for or supporting a prosecutor candidate. There is a reason George Soros is funding radical left-wing prosecutors around the country. Prosecutors hold the keys to the criminal courtrooms, and can design prosecutions to further their social justice and radical anti-gun and anti-freedom agendas – long before they reach the judiciary. Is there a difference between Democrat and Republican prosecutors? I’ll answer that question with another question: is there a difference in the Democrat and Republican platforms in regards to a law abiding citizen defending themselves, or their homes, with firearms?

This is an urgent situation for all of us now. Join me LIVE with special guest, Benjamin Hatfield, Esq., the Republican Nominee for Prosecuting Attorney of Raleigh County, West Virginia (Beckley, WV), who is running against a career Democrat prosecutor, who hasn’t had a contested election in over a decade, and who has been a prosecutor there since 1983. The law abiding citizens there are suffering.

Hatfield is a former assistant prosecutor in that county, and currently works as a civil litigation attorney at a private law firm. If you’re in West Virginia, and if you’re anywhere near Raleigh County, you may have seen some of the issues occurring there recently. You want to pay close attention to this race, and I encourage you to take a hard look at Mr. Hatfield, and then do whatever you can to help him. Because your liberty may count on it. Tune in to see why and to ask questions.

If you can send any financial help his way, donations can be sent to the “Committee to Elect Benjamin Hatfield,” PO Box 5241, Beckley, WV 25801.

Update: Here’s the article on Soros funding the Trojan Horse prosecutors I referenced in the video:

Beware Of George Soros’ Trojan Horse Prosecutors, by Pat Nolan, 9/11/20, The American Conservative

After St. Louis erupted in violence, arson, and looting, Circuit Attorney Kim Gardner ($307,000) dismissed all charges against the 36 people arrested for that violence. In the last few days eight St. Louis police officers have been shot.

At the same time, Gardner rushed to file charges against Mark and Patricia McCloskey, the homeowners who brandished (but did not use) guns at protestors who had entered the private street where the McCloskeys reside.

In Chicago, Illinois State’s Attorney Kim Foxx ($817,000) refused to prosecute rioters who violated the curfew imposed to quell the violence. “The question it comes down to is, is it a good use of our time and resources? No, it’s not.” What does she think would be a better use of her time and resources?

You probably remember Foxx. She dismissed the charges against Jussie Smollett, the actor who reported a hate crime attack against himself that turned out to be bogus. A judge removed Foxx from the case and assigned a special prosecutor who filed six new charges.

Philadelphia District Attorney Larry Krasner ($1.7 Million) announced he won’t prosecute people arrested for the violence that rocked his city for days with widespread looting and many cars torched. His excuse for not holding the mob accountable for their violence was laughable. “Prosecution alone will achieve nothing close to justice—not when power imbalances and lack of accountability make it possible for government actors including police or prosecutors to regularly take life or liberty unjustly and face no criminal or career penalty….” San Francisco District Attorney Chesa Boudin ($620,000) is the beau ideal of the Trojan Horse prosecutors. “The criminal justice system isn’t just massive and brutal, it’s also racist,” according to Boudin…. In Portland, DA Mike Schmidt ($230,000) refuses to prosecute the rioters who have burned and looted his city for over 90 days straight…..

Since 2018, Soros has made Virginia the focus of his efforts. And it has paid dividends. Trojan Horse candidates have taken over five of the largest prosecutor’s offices in the Commonwealth:  Fairfax, Arlington, Alexandria, Albemarle, Portsmouth, and Loudoun.