UPDATE: Family Court Judge Search Case – IMPEACHED?

Huge news this week. Apparently the West Virginia legislature has initiated impeachment proceedings against the family court judge we sued in federal court. More than that, the basis for the impeachment is actually the judge’s responses to my questions to her during her deposition in the civil lawsuit.

A West Virginia Family Court Judge is the subject of an impeachment resolution to be introduced by the WV House of Delegates on Monday following the commission of a warrantless search which violated, among other things, Constitutional rights of West Virginia citizens….

A March 1, 2021, deposition saw Goldston declare, under oath, “I don’t believe I violated the canons of ethics.”

When asked specifically whether she regretted physically entering Gibson’s home, Goldston responded, “Do I think I did anything wrong? No.”

https://www.lootpress.com/wv-family-court-judge-to-face-impeachment/

Watch the last update video:

$550,000 Verdict After 58 Year-old Woman Tased

Breaking news out of federal court in South Carolina, where a federal jury has just awarded a $550,000 verdict against a former Richland County Sheriff’s deputy, as well as the sheriff’s department itself.

Here are the relevant case documents, including the complaint, jury instructions, verdict form, as well as the full deposition transcript of one of the officers:

Lawsuit Filed in the Hillbilly Law Degree Case

Yesterday we filed a federal section 1983 civil rights lawsuit against the police officer featured in the “Hillbilly Law Degree” video posted back in October.

On January 10, 2021, my client, John, went to Walmart, during all the insanity that shall not be discussed. He was not committing any crime. He felt he was being treated unfairly. He was just trying to buy some products and was in the process of checking out. But Manager Karen at Walmart called the cops on him, reporting that he was refusing to wear a thing she wanted him to wear, and using some bad words. A police officer responded, and this is her body cam footage. If a non-crime was reported, usually they are investigating a potential trespassing situation. The problem with that is, many states, like West Virginia, only penalize trespassing where a customer was given the opportunity to leave, but refused. If the person even offers to leave, and the cop says, no you can’t leave, give me your ID or you’re going to jail, is that legal? 

This presents a common scenario where police officers attempt to manufacture a “stop and ID” law, where none exists:

There’s a dispute between a store and a customer. The store calls the police, reporting something that’s not a crime. The police show up to investigate the said non-crime. They demand ID. Now like many states, West Virginia does not have a “stop and ID” law. However, if they have reasonable suspicion a crime was committed, and that a particular individual committed that crime, they can perform an investigative detention which can involve forcibly obtaining an ID from a suspect. So what is the crime? Can the alleged crime of “trespassing” be used to detain and ID a shopper who has not been asked to leave the store, and who has not been given the opportunity, or even allowed, to leave the store by the responding police officer? 

Here’s the complaint:

Here’s the original video:

Motion for Summary Judgment Filed in the Challenge to the 18-20 Handgun Ban

Although the Second Amendment “right to possess and carry weapons in case of confrontation” is supposed to belong to all Americans, right now Adult Americans age 18-20 are excluded from the commercial market for handguns. They may vote, enter contracts, and marry. They are eligible to serve in the military and die for their country. And they have, obviously. But they are prohibited by the federal Government from purchasing handguns and handgun ammunition commercially. They can buy rifles or shotguns commercially, but not handguns, which according to the SCOTUS is “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.” See McDonald v. City of Chicago (2010) (quoting Heller).

This week we filed a memorandum in support of our motion for summary judgment in the Second Amendment Foundation’s federal lawsuit against the ATF challenging the ban on sales of handguns to 18-21 year olds. Here’s the filing:

Following New York State Rifle & Pistol Ass’n, Inc. v. Bruen, if a law restricts conduct falling within the scope of the Second Amendment’s text, as the federal Government’s Handgun Ban does, that law is presumed invalid and can only be saved if the government demonstrates the existence of a “distinctly similar historical regulation” that burdened the right to bear arms in the same way and for the same reasons.

Of course, that doesn’t exist. At the time the Second Amendment was ratified, not only were there no laws in any state that purported to limit the rights of 18 to 20 year olds to purchase handguns for self defense, there were several laws enacted, including the Militia Acts of 1792, that required 18 year olds to buy and maintain firearms.

The correct historical period in examining the public’s understanding of the Right to Keep and Bear Arms is 1791. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” See Heller. The Second Amendment was adopted in 1791.The Government directs the Court to look at laws adopted in the late 19th century and beyond to justify their Handgun Ban. The Supreme Court has already made clear that 1791 is the appropriate period. 

Even at the time that the Fourteenth Amendment was ratified, in 1868, only two states had a ban like the Handgun Bun and it would be another five years before another state adopted such a law. The ATF cannot point to any historical tradition that could justify the federal government’s attempt to deviate from the plain text of the Second Amendment. Therefore, we are asking the federal court to declare the federal Handgun Ban unconstitutional.

Links:

Second Amendment Foundation

West Virginia Citizen’s Defense League

Elderly Man With Dementia Protected and Served by Police

Earlier this year, deputies with the Warren County Sheriff’s Department in Virginia attempted a traffic stop on a 77 year old man named Ralph Ennis, who was apparently suffering from dementia. He didn’t stop, but instead drove to a gas station. An officer from a different agency, the Front Royal Police Department, captured what happened on his body cam. 

The footage shows a deputy slamming the elderly man’s head against a truck while pinning his arms behind his back. A second deputy then tackles the man to the ground, hitting the man’s head on the concrete.

“Please let me up!” the man cried out, with two officers on top of him. “Let me go!” Just prior to all the violence, the video shows that all the man did was to get out of his car and walk towards the deputies with his keys in his hand. 

The Front Royal officer was clearly shaken by what he saw and said so while his body cam was still recording, as he left the scene. USA Today reported on the aftermath. The elderly man was apparently then hospitalized with a brain bleed. He would never get out of the hospital. He died about two weeks later.

Unbelievably, but not surprisingly, the government medical examiner ruled that the death was of natural causes. I’m sure that has nothing to do with the fact that the man’s son filed a lawsuit against the government. 

Here’s the complaint:

Let me repeat what I just said a few videos ago: there are two kinds of people in this world; those who support the “he deserved it defense,” and those who support the Constitution unconditionally. Those who are willing to allow police officers to bend the rules, so long as the victim deserved it, in their eyes, haven’t fully thought things through. 

Case in point: Your usual Fourth Amendment Fudd, who is the same guy that thinks the Second Amendment protects his bolt action .30-06, but not your AR-15, is okay with the police beating someone unnecessarily who chose to lead the cops on a pursuit. The same Fourth Amendment Fudd who is okay allowing police officers the discretion to mete out their version of justice with no due process, however is NOT okay with the cops beating his elderly father with dementia who had no idea what was actually happening. If you allow one, then you have chosen to allow the other. By definition. You either protect all constitutional rights, or you protect none. 

This is just one of many recent incidents involving police officers and elderly people with dementia. Police officers have been enabled to fly-off the handle at the slightest perceived threat to their authority. They have been enabled to fly-off the handle on the basis of perceived threats to officer safety. They have been authorized to act like robots; to attack at the slightest provocation, without compassion for those they’re entrusted to serve and protect.

The law assumes that police officers will make mistakes; that they will have bad information, or misunderstand the situation. The law judges them objectively – not based on what they actually thought or intended, but based on how a reasonable officer would act in the same circumstances. 

And here’s the problem. Most of us would look at those circumstances, including good police officers, such as the guy wearing the body cam in this footage, and say, “hell no.” We are not robots. We are supposed to be able to adapt; to deal with different types of people in different scenarios. What would happen if a confused old man walked into a bank, holding his keys in his hand. Would he be immediately tackled and handcuffed by security? Or would any competent person recognize that they’re dealing with an elderly man who might be confused? Does it ever cross the mind of a reasonable police officer that a vehicle may not be stopping because it’s an elderly driver who is confused or suffering from dementia? I would argue that a reasonable officer should be concerned first with protecting and serving an elderly man. 

As the U.S. population ages and more people develop dementia, older people are increasingly running into problems with the police. There’s no national count of how many people with dementia are arrested each year. But an analysis of U.S. crime data by The Marshall Project shows that the number of arrests of people over 65 grew by nearly 30% between 2000 and 2020 – at the same time that overall arrests fell by nearly 40%. The number of elder arrests is growing faster than the population is aging. National data from the Centers for Disease Control and Prevention also estimates that from 2010 to 2020, more than 12,000 people 65 and older ended up in a hospital emergency room for injuries caused by police or private security.

Unfortunately, police officers are not taught to think about the citizen. They are taught to only think about officer safety. It’s drilled into them. Citizen safety is last. That’s our problem. But “officer safety” is not mentioned anywhere in our Constitution. Where it exists is in police officer training. Instead, police officers should be trained in how to help people. They are the ones who wanted to be in a public service job. That’s what it’s about. It’s not about them being scared. If they’re scared, go find another job. 

Freedom is scary. Deal with it. 

Cops Afraid of Livestream | Lawsuit Backfires

Most people understand and accept that citizens have a constitutional right to record video of interactions with police officers, at this point – in general. Law enforcement has fought that every step of the way, of course. But is there a right to “livestream” encounters with police officers? More specifically, does a passenger of a vehicle detained at a traffic stop have a constitutional right to livestream the encounter from his cell phone? 

Dijon Sharpe was a passenger in a car stopped for a traffic violation in Winterville, North Carolina on October 9, 2018. WPD officers Myers Helms and William Ellis performed the stop. Sharpe began live streaming the encounter with Facebook live. Helms told Sharpe that he could record the traffic stop from inside the car during the encounter but not livestream the traffic stop from inside the car during the traffic stop. 

At the beginning of the stop, while the driver and Mr. Sharpe waited for the officers to approach the vehicle, the driver called a third party on his cell phone in order to have a witness to what was happening. Meanwhile, Sharpe began live-streaming what was happening on his Facebook account. The livestream shows that, during the stop, the driver continued his conversation with the third party on his cell phone during the entire course of the stop, including while speaking with the officers. The footage shows the interaction between Mr. Sharpe – the passenger – and Officer Helms. The video shows Officer Helms asking for Mr. Sharpe’s identification and then returning to the police vehicle. During this time, the driver continued his conversation with the third party over the cell phone, explaining that police had begun following the vehicle for some time before initiating the traffic stop. He expressed concern that he had been racially profiled. 

As the driver was talking to the third party on his phone, Sharpe talks into his phone, reassuring viewers on Facebook live that he was fine, advocating for his practice of recording interactions with law enforcement. According to the lawsuit he would subsequently file, Sharpe began recording because he had been the victim of a brutal beating at the hands of police officers in the nearby town of Greenville ten months earlier, during a traffic stop. That experience prompted him to ensure any future interactions he had with law enforcement would be recorded for his own protection. 

After emerging from the police vehicle, Officer Helms is seen on the video approaching the car window. He says, “What have we got? Facebook Live, cous?” As soon as Mr. Sharpe responds affirmatively, Officer Helms abruptly thrusts his arm through the passenger window and attempts to seize Mr. Sharpe’s cell phone, while pulling on Sharpe’s seatbelt and shirt. During this altercation, Officer Helms tells Sharpe: “We ain’t gonna do Facebook Live, because that’s an officer safety issue.” 

Shortly afterwards, following the issuance of citations to the driver, Officer Ellis states: “Facebook Live . . . we’re not gonna have that, okay, because that lets everybody y’all follow on Facebook that we’re out here…” He says that recording is fine, but if you’re live, your phone is gonna be taken. Otherwise you’re going to jail. Sharpe then asked Ellis if that was a law. Ellis responded that it was a violation of the RDO statute, which is basically North Carolina’s obstruction statute. In the end, the phone was not seized. There was no citation or arrest pertaining to the livestreaming. However, the threat was made that next time, the phone would be seized and an arrest would be made if the phone was not forfeited. 

In Mr. Sharpe’s video, look how the officer is standing there watching Sharp and the driver and treating them like they’re up to no good. Yet the reason for the stop was supposedly a basic traffic violation. The officer asks for Sharp’s ID because “he likes to know” who he’s out with. Is it any wonder that police officers get the reputation they have?

Based on the incident, as well as the threat to stop livestreaming in the future, under penalty of arrest, Sharpe sued the officers and the Town of Winterville under Section 1983 for violation of the First Amendment. The district court dismissed the claims against the individual officers on qualified immunity grounds, holding that it was not clearly established in October of 2018 that a passenger in a stopped vehicle had a constitutional right to record and live broadcast the interaction. Additionally, the Court held that live-streaming by a vehicle passenger poses a “unique” threat to officer safety that mere recording does not and is therefore not clearly protected under the First Amendment. 

Eleven months later, the district court dismissed the claim against the Town of Winterville on the grounds that Mr. Sharpe had no constitutional right to live broadcast at all, and that even if he did, the town’s policy of arresting traffic stop passengers for live-streaming passes constitutional review under intermediate scrutiny. The district court held that “[r]ecording a traffic stop for publication after the traffic stop versus livestreaming an ongoing traffic stop from inside the stopped car during the traffic stop are significantly different.”

“[L]ivestreaming the interaction from inside the stopped car during the traffic stop … allows … those watching, to know the location of the interaction, to comment on and discuss in real-time the interaction, and to provide the perspective from inside the stopped car,” JA81. “The perspective from inside the stopped car, for example, would allow a viewer to see weapons from inside the stopped car that an officer might not be able to see and thereby embolden a coordinated attack on the police.” Thus the Court concluded that Mr. Sharpe had no First Amendment right to live-stream. 

Mr. Sharpe appealed to the Fourth Circuit. It drew significant attention from civil liberties and press advocates. Seven amicus briefs were filed in support of his claims.  Here’s Sharpe’s opening brief:

Oral arguments were held last month, which involved a heated discussion between one of the federal judges on the panel and the lawyer representing Mr. Sharpe. During the oral arguments, the federal judge seemed highly concerned about the rights of police officers, as opposed to the rights of an innocent citizen being detained as a passenger in a traffic stop. Listen for yourself

Here’s the full raw footage, which was linked in the court record (Facebook video link).

The Fourth Amendment grants no rights to officers. “The right of the PEOPLE to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” Its purpose is to guarantee individual rights against the power of the government. 

This flies in the face of actual Fourth Amendment law. They are using amorphous and general concerns over “officer safety” that are not particular to the individual they are seeking to restrict. In other words, the officers here, and those advocating for them to do so, want the officers to have the power to stop livestreaming, based only on obscure general concerns over officer safety. Theoretically, if some bad guy was watching the livestream he could find the location while the stop is in progress and theoretically harm the officers or cause some other safety issue. 

They’re not saying that this particular individual should not livestream under these circumstances, because that person is a particular safety threat and those facts can be demonstrated in court or to a judge. They’re using blanket reasons.  Again, that flies in the face of existing Fourth Amendment law, which requires particularity to the individual for things like frisks and searches. Blanket reasons never go well with constitutional law. Usually we’re told that law enforcement actions were justified based on the “totality of the circumstances.” Well now, because they hate video footage, we no longer look at the totality of the circumstances, but rather, at the vague concept that police officers are afraid of absolutely everything and everyone. 

The fact is, freedom is scary. They need to deal with it, or get another job. We cannot and must not appease that fear.

Driver Saved by Weird Cop’s Dash Cam | Lawsuit

Once again, a police officer films himself committing a civil rights violation. This is an extremely important issue. It’s already super easy for police officers to stop and detain an innocent person just following a driver long enough and looking for one of the hundreds of available traffic law violations, or even by just lying about observing a traffic law violation. We’ve all known compulsive liars. They justify their behavior in their own minds by convincing themselves that they’re telling the truth – or that it’s for a good cause. When it comes to police officers and constitutional rights, our freedom hangs in the balance. It’s a slippery slope, so there can be no compromise.

In this footage we see an unlawful stop, based completely on a lie, documented by the officers’ own dash cam footage. It makes no difference, legally speaking, whether the lie was malicious, or done with good intentions. This is where most of us will encounter police officers. This is also where police officers can easily get away with racial profiling or other discrimination or harassment of innocent people. The threshold is very, very low for police officers to lawfully stop a vehicle and detain the driver. Where they are caught doing so illegally, there needs to be consequences and accountability.

Fortunately, there may be some accountability coming for these police officers. This footage comes to us from a fantastic new video released by the Institute for Justice, detailing a section 1983 lawsuit they just filed this month in Louisiana. I’ll post a link to the video and press release by the IJ in the description. I also urge you to donate to their cause. They do fantastic work protecting our freedom.

On June 15, 2022, Mario Rosales and his passenger Gracie, were driving in Alexandria, Louisiana. They both worked for an HVAC business and had just left from work. It was around 5 p.m. In his red Mustang, while sitting at a traffic light, Mario properly signaled a left turn and then proceeded to turn left. Two police officers with the Alexandria Police Department, Jim Lewis and Samuel Terrell, were behind him. The officers had no reason to suspect that Mario had committed any crime, including a traffic violation. His tags were current. The vehicle was in proper working order and didn’t appear to give rise to any justification for a traffic stop. There was no lawful reason for the stop.

Here’s the full raw footage:

In the end, due to the fishing expedition, the officers end up charging Mario with three violations: failure to signal, and two hyper-technical violations pertaining to residence and vehicle registration. Fortunately, all three charges were dismissed. Assuming that someone on a bench somewhere was looking at this footage and measuring it against the Constitution, those charges had to be dismissed. Why? Because the initial stop was illegal. Therefore, everything that happened afterwards is fruit of the poisonous tree. Well, the failure to signal was easily disproved by the video footage. But the two hyper-technical residency violations would also have to be thrown out because they were only discovered as a result of the officers’ illegal behavior. 

Police officers must have reasonable suspicion that the driver committed a crime or traffic violation in order to justify a traffic stop detainment. In order to have valid reasonable suspicion here, the officers must have had some belief particular to Mario, based on the totality of the circumstances, that Mario committed some violation. Just a hunch by Officer Fifth Amendment here is not enough.  His instincts are either way, way off, or he racially profiled Mario. Or maybe he just doesn’t like Mustangs. Either option violates the Fourth Amendment. 

Even if there was a failure to signal, what other problems would we have here? As I explained in a previous video about traffic stops: The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop. Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes.

As we saw in the footage, this wasn’t just a regular traffic stop, Officer Fifth Amendment chose to take Mario out of his car, for an extended period of time and question him about criminal allegations completely unrelated to the supposed reason for the stop. For that to be legal, the officer would need to have separate reasonable suspicion particular to Mario – not just anyone and everyone he stops – that Mario may be involved in the suspected illegal activity. Thus even if the failure to signal allegation wasn’t a lie, the Fourth Amendment would still be violated. And then there’s a First Amendment violation in there for refusing Mario and Gracie the option of filming these lying police officers. That is well explained in the IJ’s complaint

Here’s the complaint:

Cops Arrest Outlaw BARBER | Just Following Orders

In April of 2020, a 72 year old combat veteran, himself a retired law enforcement officer, was arrested in his barbershop, for refusing to close his business during the lockdown ordered by our Governor. The criminal case is long over. The civil lawsuit that I filed is also over at this point. But the footage is a good reminder about your government.

Government employees will follow orders. Law enforcement will follow orders, constitutional or not. It doesn’t matter whether they have an American flag tattoo and/or sticker on their truck. It doesn’t matter whether they spout off on the inter-webs about patriotism and the Constitution. They’ll follow orders. And never count on the judiciary to hold them accountable. 

This 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. He beat the criminal charge. Here’s an excerpt of the dismissal order:

In the subsequent civil lawsuit, 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. Here’s the original complaint:

Unfortunately, however, the Court granted the defendants’ motions to dismiss. Here’s the order granting the inspector’s motion to dismiss:

Here’s the order granting the deputies’ motion to dismiss:

The point is, here is concrete proof that it matters not whether your local police officer is a nice guy, or patriotic, or whatever. They will follow orders. They are agents of the government. If they don’t do it, they will be replaced with someone who will. But they will do it, I assure you – even if they personally disagree with it. It would be a tragedy to lose the pension and dental plan, of course. Don’t get confused about the difference between an individual’s personality and personal beliefs and their status as an agent of the government. There are countless examples of this, going back to the beginning of our republic. Don’t get caught ignorant.

Worst Cop Ever Prolongs Stop for Drug Dog and Baptizes Arrestees

How long can a traffic stop last? Can officers “prolong” a stop and order a drug dog? Also, can police officers baptize you in lieu of a ticket? April 17, 2019, William Klaver was driving south towards Chattanooga, Tennessee. Police Officer Daniel Wilkey, a Hamilton County deputy sheriff, stopped Klaver for a tinted-window violation. The driver didn’t know it at the time, but he was facing a police officer described by the New York Times seven months later as having been charged “with rape, extortion, stalking and assault,” as well as “false imprisonment, child molestation and forced baptism.” Yes, that’s right. “Forced baptism.” And there’s video, believe it or not. 

After stopping the driver and approaching his window, Wilkey told Klaver that he stopped him because his windows were “way too dark” and requested his driver’s license. It was 8:10 p.m. As Klaver searched for his license, Wilkey inquired about where Klaver was headed. When Klaver didn’t respond, Wilkey asked, “Not going to talk to me?” At about this time, Police Officer Tyler McRae, another Hamilton County deputy, pulled up and approached the vehicle’s passenger side window. After several seconds, Wilkey asked Klaver, “You okay?” and again requested his license. Klaver then asked, “Am I being detained?” Wilkey responded “yes” because of the “window-tint violation,” after which Klaver handed over his license. 

The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015). Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop.

The Supreme Court has provided a list of acceptable tasks that are connected generally to safety and driver responsibility:

Officers will usually question a driver about the traffic infraction; they will run the driver’s license plate; they will request and review the vehicle’s registration and insurance; they will check for outstanding warrants; and lastly they will write a ticket. Officers also commonly question drivers about their travel plans. So long as they do so during the time that they undertake the traffic-related tasks for the infraction that justifies the stop (Arizona v. Johnson), officers may also ask questions about whether the driver has drugs or weapons in the car, or even walk a drug-sniffing dog around the car (Illinois v. Caballes). These unrelated tasks turn a reasonable stop into an unreasonable seizure if it “prolongs” the stop. Officers may not avoid this rule by “slow walking” the traffic-related aspects of the stop to get more time to investigate other potential crimes. 

Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes. See Hernandez v. Boles (6th Cir. 2020).

The reasonable suspicion basis for the traffic stop detainment was an allegation of dark tint. Later, the officers would argue the existence of other criminal suspicion, including suspicion of Klaver being a “sovereign citizen” and Klaver visibly shaking. This, they would argue, justified the officers suspecting Klaver of being in possession of drugs.  As Wilkey and McRae headed back to Wilkey’s cruiser, Wilkey said the words “sovereign citizen” to McRae. The officers then talked. Wilkey observed that Klaver’s van had an “obstruction” which was a Marine Corps sticker, over his license plate. He also claims to have noticed that Klaver was “shaking like a leaf.” He told McRae they should “make sure he ain’t got no pot or anything.” Wilkey suggested that they call for a drug-sniffing dog. McRae agreed because Klaver would “say no to a search.” A criminal background check revealed no relevant criminal history. 

About 5 minutes into the stop, the officers returned to Klaver’s van and requested his registration and insurance card. Wilkey continued to question Klaver. He asked him whether he had ever been arrested; whether he was on any “kind of medication” or had “any kind of disability,” because “you’re shaking.” He asked if he had “Parkinson’s or anything like that?” Klaver responded he didn’t think that Wilkey was entitled to ask him these questions. Wilkey responded that Klaver’s shaking suggested he was “hiding something” or had “drugs.” He asked, “you don’t have any of that, do you?” Klaver responded, “You know I don’t.” A minute later, Wilkey again asked Klaver if he had anything illegal in the car like “weapons or anything like that.” Klaver said no.

Did the deputies have reasonable suspicion to prolong the stop? 

To have reasonable suspicion here, the deputies needed a “particularized” belief (that is, one tied to Klaver) and an “objective” belief (that is, one tied to articulable facts rather than amorphous hunches) that Klaver possessed drugs. The court looks to the totality of the circumstances. 

The 6th Circuit rejected the officers’ claims that Klaver might be a “sovereign citizen” solely because he asked if they were detaining him. They noted that the video showed that Klaver was reasonably polite, not loudly confrontational. “Unless everyone who is reluctant to speak with the police might be a ‘sovereign citizen,’ the deputies’ claim appears to have rested more on a ‘subjective hunch’ than objective facts.” The Court noted that the officers failed to identify a single judicial decision or evidentiary citation suggesting that a person’s “sovereign citizen” status correlates with the likelihood of possessing drugs. Therefore the assumption was irrelevant. 

The 6th Circuit also rejected the officers’ claims that Mr. Klaver shaking justified a suspicion of possessing drugs. “Many law-abiding people show their nerves in the same way when confronted by the police . . . [s]o we have always given nervous shaking little weight,” as it “amounts to a weak indicator of crime.” The Court also rejected the officers’ claims that Mr. Klaver’s reluctance to cooperate or respond to questions, including about why he was shaking, justified a suspicion of possessing drugs. A suspect generally does not have a duty to cooperate, and so the lack of cooperation does not alone provide reasonable suspicion to believe that the suspect is committing a crime.” See Florida v. Bostick, 501 U.S. 429, 437 (1991).

Wilkey then asked permission to search the van. Klaver responded, “I refuse permission for you to search my vehicle” and said “there’s nothing in here.” Wilkey continued to ask many of the same questions he had already asked, about the reason for Klaver shaking.

At 8:18 p.m., now 8 minutes into the stop, the deputies returned to the police cruiser and requested a canine officer. Dispatch informed them two minutes later than one was in route to the scene. Wilkey then filled out paperwork for the traffic ticket over the next several minutes. At 8:24 p.m., McRae approached Klaver. A few minutes before, Klaver began recording video from inside his van. He filmed himself peeling the tint from the inside of his driver’s side door window. McRae attempted to ask him about his military service. Klaver responded that he didn’t mean to be “disrespectful,” but that he would not “answer any more questions.” He stated that he wanted to be “on my way” if they were not arresting him. McRae stated that Wilkey was writing a ticket. Klaver said they needed a reason to detain him. McRae described the window tint and license plate violations, and then returned to Wilkey’s cruiser. 

Deputy Wilkey continued filling out the ticket until the canine officer arrived at 8:32 p.m. The stop had now persisted 22 minutes. Wilkey told the canine officer that Klaver was likely a “sovereign citizen” who was “being combative” and “trying to conceal himself.” He said that the canine officer should let him finish with the ticket before deploying the dog in case Klaver “does something stupid.” Wilkey then returned to the van and ordered Klaver to exit the van for the dog sniff. He patted Klaver down and discussed the citation with him as the dog circled the van. Klaver now told Wilkey that the tint was now off his driver’s side window. 

At 8:40 p.m. Deputy McRae told Wilkey (and an incredulous Klaver) that the dog had alerted to drugs in the van. McRae and Wilkey then searched the van for five minutes. They found nothing. Wilkey again asked Klaver whether he had drugs. Klaver again answered that he did not.  As Klaver signed the citation, he said to Wilkey: “In case you were wondering, I have muscular dystrophy.” Wilkey replied: “That’s all you had to say, sir.” Klaver then drove off at 8:50 p.m.

Mr. Klaver filed a pro se lawsuit against Wilkey and McRae (among others). The defendant officers moved for summary judgment. The Court denied the motions on the ground that the officers unreasonably prolonged the stop without reasonable suspicion that Klaver possessed illegal drugs. The defendant officers filed an immediate appeal on qualified immunity grounds. The 6th Circuit issued an opinion on November 3, 2022.

The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015).

1. Did Wilkey and McRae prolong the stop beyond the time necessary to resolve the window-tint violation? 

2. If so, did they have reasonable suspicion to believe that Klaver was engaging in other crimes?

The 6th Circuit held that a reasonable jury could find that both Wilkey and McRae unreasonably prolonged the stop. 

The 6th Circuit upheld the denial of qualified immunity to the officers, noting that, “[w]e have a mountain of caselaw indicating that heightened nerves represent weak evidence of wrongdoing and cannot be the primary justification for a stop.

Stay tuned for Part 2, on the aftermath of Daniel Wilkey…

Pastor Calls Cop a “TYRANT” and Gets Chased Into Church

On August 25, 2019 in Worcester, Massachusetts, police officers arrived outside Cornerstone Baptist Church. They were there attempting to retrieve a child after receiving a report of a custody dispute involving the granddaughter of the church’s pastor, Joseph Rizzuti, Sr. Officers arrived at the church to retrieve the child after the child’s father alleged that the mother had failed to return the child following a visit. Officers wrote in their reports that churchgoers and family members kept interfering, refused orders by police and resisted arrest. The body cam footage shows what happened. The church’s pastor, Joseph Rizzuti, Sr., stands outside the church, telling his daughter to leave. Worcester Police Sgt. Michael Cappabianca, Jr., walks over to him.

Is there a First Amendment right to call a police officer a “tyrant?” Yes. Does it matter whether he’s actually a tyrant or not? No. Does it matter whether you’re a pastor standing in front of your church or a homeless guy with a cardboard sign? No.