Join me and special guest LACKLUSTER, tonight to watch, discuss and analyze some recent police videos making the rounds, including the OIS in Tucson of the guy in the power chair. And more….. LIVE at 7pm ET – Freedom is Scary, Ep. 84.
Today we filed a federal Section 1983 civil rights lawsuit alleging multiple counts of civil rights violations related to allegations of excessive force which occurred during a “domestic disturbance” call involving my client, Melvin Sargent. Following a non-violent argument with his wife, deputies from the Mercer County Sheriff’s Department arrived at his home.
Due to the fact that he was open-carrying a pistol in a retention holster, as he usually did, and as he was legally entitled to do, Mr. Sargent went out of his way to raise his hands in the air and allow the officers to disarm him, following their arrival. However, as the complaint alleges, after being disarmed, he was punched in the face with a closed fist, and subjected to violence from there. His hand was boot-stomped, which resulted in a fractured hand.
After handcuffs were applied behind his back and placed in the rear of the police cruiser, his hand began to swell and cause severe pain. When he complained about the pain, the deputy violently pushed him and began punching him again. He then sprays pepper spray in his eyes for 3 to 5 seconds, and then shuts him inside the police cruiser. Afterwards the deputy walks over to Mr. Sargent’s significant other, who was filming video, where you can see his black armored knuckle gloves, covered with my client’s blood.
Here’s the filed complaint:
This morning a federal judge denied the motion to dismiss filed by Putnam County, who had asked the Court to dismiss the first of several lawsuits filed against Putnam County for a pattern and practice of illegal searches by their “Special Enforcement Unit,” who were caught on video searching the inside of my client Dustin Elswick’s home, which you may have seen on Youtube.
Usually in federal civil rights lawsuit, you are required to sue the individual government employee or officer who engaged in the violation. However, under the Supreme Court’s ruling in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), counties and cities (i.e., political subdivisions) may be sued directly when they have adopted some policy or practice which authorizes a constitutional violation against citizens by police officers. These are known as “Monell Claims” and they are very difficult to prove, generally. So they are pretty routinely dismissed. I’m happy this one wasn’t. Presumably the other two cases just like it will also be allowed to proceed…..
The Complaint’s other allegations include that PCC purposely established and operated the the SEU and knew of and condoned the SEU officers repeated constitutional violations. Id. ¶ 51. This alleges that the PCC was the “moving force” behind the constitutional violations where it deliberately created a unit of officers who did not comply with procedural safeguards and engaged in constitutional violations. See Bd. of Ctny. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (quoting Monell, 436 U.S. at 694).
Here’s the Court’s memorandum order and opinion allowing the case to proceed:
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)
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:
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…..
You may have seen the dashcam footage of the Arkansas State Police trooper flipping the pregnant woman’s car over a traffic stop. The main video which was making the viral rounds was on the Lackluster channel. Well, a TV news station issued a takedown notice to Youtube, alleging ownership of the footage. The problem is, however, that Lackluster obtained it directly from the Arkansas State Police. As a result, his video was pulled and kept down for about 4 days. This killed the virility of the video, deprived the channel of valuable revenue, and was totally unfounded. Here’s the info….
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.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:
Congratulations to West Virginia’s first Second Amendment “Sanctuary,” Putnam County, in obtaining a new anti-gun diatribe of a published opinion from the Fourth Circuit. This morning, the Fourth Circuit issued a published opinion in the Walker case. Basically, the Second Amendment doesn’t apply to the AR-15, and it matters not that the WV legislature allows its citizens to possess and use AR-15s, because the judiciary decides what peasants may possess – not the state legislature.
I knew it was going to be bad, since at the oral arguments one of the judges likened the AR-15 to the M-16. And he ended up authoring the opinion. You can listen to the oral arguments here, if you missed them.
Join me live at 7pm for a discussion on the ruling: