This week the Supreme Court issued two separate rulings in qualified immunity cases involving allegations of excessive use of force by police officers. One out of the 9th circuit, involving an officer placing a knee on a suspect’s back for 8 seconds, and a second one involving a suspect who was shot and killed by police officers while charging at an officer with a hammer.
You may have seen the headlines around the interwebs about the SCOTUS strengthening qualified immunity in these two cases, or somehow changing the law in favor of the police. Is this the case? Since excessive force cases are my favorite, let’s go through these together. #QualifiedImmunity#ExcessiveForce#SCOTUS Freedom is Scary Ep. No. 78 (prerecorded, but scheduled to play at 10/20 at 8:00 p.m. ET)
Join me live at 8pm ET tonight for an update on the Jefferson County, West Virginia school bus drivers who were suspended for attended the Trump rally on January 6, 2021. Despite being nowhere near what occurred at the Capitol, they found themselves suspended and accused of misconduct, and then later vindicated. We files suit for First Amendment retaliation. Here’s what’s happened so far in the litigation….. Freedom is Scary, Ep. No. 77. Also available on our Facebook page.
As I announced on the Tom Roton Show this morning, yesterday afternoon we filed a lawsuit in Wood County Circuit Court (Parkersburg, WV) against the Wood County Board of Education challenging their blanket school mask mandate, which is currently forcibly masking children for prolonged periods of time. The suit was filed on behalf of my clients, John Davis and Felsie Pierce, who have three children currently enrolled in Wood County Schools, who have suffered, and are continuing to suffer, due to the illegal mandate.
In a nutshell, our legal theory is this: Wood County BOE claims that the local health board, the Mid-Ohio Valley Board of Health, has issued the mandate, and they are merely following that requirement. However, the MOVBOH has denied that they issued the mandate. If the MOVBOH had indeed issued the mandate, they would be required to follow due process, which requires notice, a hearing, and so on, as well as oversight by the Wood County Commission, the local elected representatives of these schoolchildren and their parents. That’s the process in place – even before we get to the issue of science or constitutional rights. They didn’t follow the process, and therefore the mandate needs to be struck down immediately. Secondly, even if and when they follow that process, such a mandate still violates the WV Constitution because it violates the bodily autonomy of these children, just like a mandate requiring a medical procedure without the consent of the recipient.
It’s my understanding that other county boards of education in West Virginia have issued school mandates that are likewise illegal. We’ll see what the Wood County Circuit Court does with this case first before proceeding in other counties. We have requested the issuance of an immediate temporary restraining order, until such time as an expedited hearing can take place. Here is the complaint:
A federal judge today temporarily blocked New York state from enforcing a vaccine mandate on health care workers who seek or obtain a religious exemption. Here’s the Complaint, filed by the Thomas More Society on behalf of numerous physicians and other health care professionals who are acting under pseudonyms. The Court issued a Temporary Restraining Order pending the response of the defendants and a hearing on the matter. The basis of the Complaint is failure to provide a religious exception. There are tons of exhibits attached to the Complaint detailing the basis for the religious exception under Christianity.
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.
We recently obtained a report from the West Virginia Office of Disciplinary Counsel which found that a West Virginia Family Court Judge made improper and false allegations about the judicial disciplinary prosecutors who have been prosecuting a fellow Family Court Judge, Louise Goldston. The report concluded, in part:
It is shocking that a long-standing member of the judiciary bestowed with the honor of being part of the system designed to protect and preserve the integrity of the judicial system would make such baseless accusations designed to solely to impugn the integrity of two members of the West Virginia State Bar. It does not appear that FCJ (Family Court Judge) Stotler conducted any factual investigation into the allegations regarding JDC (Judicial Disciplinary Counsel) before regurgitating the untimely, unsupported allegations made by FCJ (Family Court Judge) Goldston and sending an ex parte communication, written on his official court letterhead, to the Supreme Court. Additionally, the Judicial Branch of government has the exclusive authority to regulate the practice of law in the State of West Virginia, but FCJ Stotler’s letter was also sent to members of the Legislature….
The law is not an arena where we vilify civility, curse through preparation, and denigrate skilled, zealous advocacy.
The ODC investigation commenced after a sitting Family Court Judge, Judge Glen R. Stotler, of the 23rd Family Court Circuit (Hampshire, Mineral and Morgan Counties), also a member of the Judicial Hearing Board that heard the Goldston case, sent a March 25, 2021 letter (on his official court letterhead) to the Chief Justice of the WV Supreme Court, making numerous allegations against the judicial prosecutors in regards to their handling of the Goldston case, and ultimately requesting an investigation into their actions, as well as their termination, “or at the least a serious reprimand.” Here’s a partial shot of the three-page letter:
Not only did he send the letter to the Supreme Court, but he sent it to the Senate Judiciary Committee Chairman, the House Judiciary Committee Chairman, the Court’s administrative office, as well as to the President of the Family Court Judicial Association, Deanna R. Rock, another sitting Family Court Judge.
Here’s the ODC investigation report in its entirety, which details the entire ordeal up to that point, including a discussion of some of the sworn statements taken of the judges involved. It also gives a rare behind-the-scenes look at the judicial disciplinary prosecution procedures, which are usually confidential:
Shockingly, on the same day as this ODC report was issued – May 13, 2021 – the Family Court Judicial Association apparently helped Judge Stotler double-down, by essentially turning his letter into a “Resolution” adopted by the entire Family Court Judicial Association, again making allegations against the JDC and calling for their termination. It’s my understanding that this “Resolution” was effectively sent back by the Supreme Court Clerk’s office as inappropriate. They later retained a lawyer and filed an amicus brief in the Goldston case, which is set for oral arguments next month. Here’s the Resolution:
Perhaps they should have waited maybe one more day to issue their Resolution, since unbeknownst to them, apparently, the Office of Disciplinary Counsel on that same day issued this lengthy report revealing Judge Stotler’s allegations as false, outrageous and highly inappropriate. The ODC report documented that the judicial disciplinary prosecutors were falsely accused, and that perhaps the accuser(s) might want to examine their own misconduct:
The former chair of the JIC (Judicial Investigation Commission) stated he could speak to the abilities and character of Respondent Tarr and Respondent Lanham. He stated as attorneys representing the JIC they have exceedingly difficult jobs as they must not only know the judicial canons but act fearlessly in doing those things as required by their jobs as JDC. The former Chair of the JIC stated that FCJ Stotler’s March 2021 letter demonstrates both an ignorance of the system and a willingness to respond to adverse decisions in an irresponsible manner. The former Chair further opined that the reckless letter required FCJ Stotler’s removal from further service on the Judicial Hearing Board.
Now, an entire body of Family Court Judges have made the same false allegations and requests. Numerous sitting Family Court Judges out there have apparently now engaged in what is described in the report as acting in an ignorant and irresponsible manner, and which raises a serious question as to their fitness to serve in a judicial capacity. But who are they, specifically? They’re hiding behind their supposedly private “Association.” The ODC report, if you read through it, mentions the involvement of then-President of the Family Court Judicial Association, Deanna R. Rock. In fact, it mentions that she apparently assisted Judge Stotler in preparing the letter with the false allegations.
Judge Rock, along with another Family Court Judge, also apparently assisted Judge Goldston with her brief, which included the false statements about the judicial prosecutors:
Did it ever seem like a good idea to get involved in a disciplinary prosecution of a fellow judge and attempt to have the prosecutors fired? What are the potential remedies? Judicial disciplinary complaints? Impeachment proceedings? If Judge Stotler isn’t fit to preside over a judicial disciplinary hearing, then is he, or others who joined him, fit to preside over cases involving people’s children and finances? These questions need to be asked, and there may be some news on that front in the near future.
We have several pending FOIA requests pertaining to this, and hopefully will have more information soon. Meanwhile, the federal civil rights lawsuit against Judge Goldston, and others, remains pending. Read more about the background of this case here:
This week we filed a second federal civil rights lawsuit against the Putnam County, West Virginia so-called “Special Enforcement Unit.” This is the same “SEU” guys who were featured in the Dustin Elswick video. This case features one of the victims who came forward after the Elswick video became public.
It involves a young man who was visiting a friend’s house, on his way to go fishing. The SEU just happened to raid his friend’s home, without a warrant, keeping my client in handcuffs for an extended period of time while they searched the house. Apparently they found a small amount of pot in the friend’s house and a couple hundred dollars in cash, which they took. No paperwork documenting the event was ever provided in response to our FOIA requests. There were no criminal charges.
We’re alleging multiple civil rights violations, including unreasonable search and seizure and excessive force, in violation of the Fourth Amendment. Here’s the Complaint, in full.
Today we filed our response brief to Enlivant’s motion to dismiss in our wrongful termination lawsuit in McCutcheon v. Enlivant, currently pending in the Southern District of West Virginia. The lawsuit challenges the right of private employers in West Virginia to discharge employees for not taking the EUA vaccine. Here’s the filing.
Seeking to temper the otherwise harsh results that would obtain where a discharge from employment was impelled by the employer’s desire to contravene public policy, an exception to the common law doctrine of at-will employment was established. See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015); See also Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459, 468 (1955) (recognizing that at- will employees serve at will and pleasure of their employers and may be discharged at any time, with or without cause). That exception, created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), provides:
The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.
Id. at 116, 246 S.E.2d at 271, syllabus; Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015). The Court has identified the areas from which public policy may be gleaned:
‘The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government—with us—is factually established.’
“To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2, Birthisel, 188 W.Va. at 372, 424 S.E.2d at 607. “Substantial public policy” has been defined by the Supreme Court as “not just recognizable as such but be so widely regarded as to be evident to employers and employees alike.” Id. at 745, 559 S.E.2d at 718. The Court recognized in Syllabus Point 3 of Birthisel that ““[i]nherent in the term ‘substantial public policy’ is the concept that the policy will provide specific guidance to a reasonable person.” 188 W.Va. at 372, 424 S.E.2d at 607. The Court has looked to whether regulations or licensing statutes contained specific provisions that addressed the allegedly improper conduct by the employer. Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 170 (W. Va. 2015).
Here’s the Petition for Rehearing and Petition for Rehearing En Banc we filed yesterday in the Walker AR-15 open carry case, which will give effectively stay the case while the other judges on the Fourth Circuit have an opportunity to review our petition and consider whether to get involved.
If the Panel Opinion remains, Black is meaningless, because there will always be “more” available to any police officer. Even if an individual has violated no law, they will be subject to detainment based on any speculative crime which generally could be committed by any anonymous person. A man walking in the direction of any woman might be a rapist, given that he would appear to have the physical ability to carry out a rape. Any driver of a car heading in the direction of any other human being might be a potential murderer, because they appear to have the physical ability to run-over people, should they so choose. The analogies could go on and on because, like the Michael Walker case, these scenarios are all generalized, rather than based on individualized reasonable suspicion.
Deputy Donahoe did, and claims to have done numerous other times, exactly that which Black forbade: to assume that being a felon in possession of a firearm was the default status; that, without more, he could detain and ID anyone he saw with a firearm. He admitted that he had no information that Walker may have been a prohibited person. (J.A. 162:5-8). Donahoe admitted under oath that had no indications that Mr. Walker was a threat to anyone, nor appeared to have any ill intentions (J.A. 167:1-4). Donahoe told Mr. Walker at the beginning of the stop, “At this point, I have the absolute right to see whether you’re legal to carry that gun or not.” (See J.A. 209 – Video of Incident).
The District Court acknowledged that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Black, 707 F.3d at 540 (J.A. 326). There was no “more.” Walker had committed no crime. He wasn’t observed committing a crime. Not a single person alleged that a crime was committed by Michael Walker. To allow a police officer’s subjective fear of AR-15s, or of theoretical copycat crimes, to be utilized as “more,” effectively swallows the rule. This opens the door to racial profiling, and so on. To allow the Panel Opinion to stand is to unravel Black, and important civil rights protections.
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.