Oral Arguments in Caniglia v. Strom and the so-called “Community Caretaking” Exception Issue

The U.S. Supreme Court recently held oral arguments in the Caniglia v. Strom case, where law enforcement has been seeking the official establishment of a “community caretaking” exception to the warrant requirement which protects a person’s home. You can listen to the arguments here.

You can hear that the justices are concerned/obsessed with the hypothetical scenario of an elderly person having fallen, or been injured, in her home. Some neighbor of family member calls for the police. They show up at the door; there’s no answer; can they go in without a warrant? If they don’t, maybe the woman has “fallen and can’t get up.” And maybe she doesn’t have Life Alert…..

That’s the hold up here. The questions from the Court didn’t sound promising at all. This is a case where both the ACLU and the Gun Owners of America submitted amicus briefs. This is a we-the-people vs. the government issue. Unfortunately, the Court seems overly concerned about the potential liability of police officers who engage in wellness checks.

But it’s really a non-issue. The proper answer to Judge Roberts’ hypothetical is the reality that there never would be civil liability for an officer who technically violates the Fourth Amendment just by checking on grandma during a wellness check. Why? Because of qualified immunity. Any lawsuit stemming from such a scenario would be granted qualified immunity. And even if he/she weren’t, the measure of our constitutional rights is not a policy analysis about the costs or efficacy of law enforcement agencies, who have insurance for these reasons, defending against civil lawsuits.

Here’s what happened in oral arguments today in the AR-15 Open Carry case – Walker v. Donahoe

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:

Cops ABUSE Walmart Shopper in front of his Crying Toddler

Brand-new police body-cam footage shows an outrageous detainment and arrest of an innocent guy shopping in Walmart with his poor toddler. I break it down, explain some of the relevant law, and show what happened. This couldn’t have gone much worse. Multiple Fourth Amendment violations….. and then there’s Walmart.

Reasonable suspicion is required to perform an investigative detention. Probable cause is required to perform a warrantless arrest. The “Graham Factors” are assessed to analyze the legality of the use of force which occurred. I’d guess the police here will fail miserably on all three.

Chicago PD Search Warrant Video and the Law on Wrong Address Search Warrants and Sloppy Police Work

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 (quoting Franks 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).

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:

That time my client was shot through his front door

Here’s the original dash cam footage and audio from a case I handled a few years back that’s educational in several respects. Perhaps the biggest takeaway from this footage, in my mind, is towards the end of the video, where you hear a state trooper come up to the deputy sheriff who had shot my client, and inform him that he was going to be the officer investigating the shooting, and basically told him to stop talking, and to go home and sleep on it first. Indeed, once he did so, the narrative changed from what can be heard in the video.

You hear the shooter tell his version of what had occurred three times at the scene. None of which suggested that the shooting was justified. Not surprisingly, the official written statement which comes out a few days later, is nothing like what he said three times at the scene. Instead, the shooter later claimed to have seen my client with a gun before he fired.

Here are the rounds which traveled through the door.

Also, you can see the boot print from where he kicked the door:

Since this was a police shooting of someone who was not yet in police custody, the legality of the use of force is judged using the Fourth Amendment, under the “Graham Factors.” Here are the actual jury instructions which were to be used at the jury trial:

Your verdict must be for the plaintiff (and against the defendant) for violation of the plaintiff’s Fourth Amendment right to be free from excessive force if all the following elements have been proved:

First, the defendant shot the plaintiff through the front door of his home, and

Second, the force used was excessive because it was not reasonably necessary to shoot the plaintiff through his front door in order to interview the plaintiff, and

Third, the defendant was acting under color of state law.

In determining whether the force was “excessive,” you must consider: the need for the application of force; the relationship between the need and the amount of force that was used; the extent of the injury inflicted; and whether a reasonable officer on the scene, without the benefit of hindsight, would have used that much force under similar circumstances.  You should keep in mind that the decision about how much force to use often must be made in circumstances that are tense, uncertain and rapidly changing. 

Deadly force may be used only if it is reasonably believed necessary to prevent a significant threat of death or serious physical harm to the officer or others.  A warning must be given, if possible, before deadly force may be used.  You must decide whether the officer’s actions were reasonable in light of the facts and circumstances confronting the officer without regard to the officer’s own state of mind, intention or motivation.  In making this determination, you may take into account the severity of the crime at issue, whether the plaintiff posed an immediate threat to the safety of the defendant or others, and whether the plaintiff actively resisted arrest or attempted to evade arrest by flight.

If any of the above elements has not been proved, then your verdict must be for the defendant. “Deadly force” is force intended or reasonably likely to cause death or serious physical injury.

This is essentially the same test which is used in criminal prosecutions of police officers for excessive force violations – i.e., Breonna Taylor, and so on. There never was a criminal charge against this particular officer. The West Virginia State Police performed the official investigation and found that the shooting was justified. Thus, our lawsuit was the only litigation connected to it. Ultimately, we settled the case – only days before trial.

How to Handle a Traffic Stop – FIS Live No. 22

Tuesday, Oct. 27 at 6pm Eastern.

The Civil Rights Lawyer explains how to handle a traffic stop – a discussion on constitutional law issues surrounding traffic stops and gives commentary on Do’s and Don’ts for both drivers and police officers during the course of traffic stops. TUE 10/27 at 6pm.

Set your reminder, notifications, and subscribe. Bring your experiences, your issues, and your questions, live for Freedom is Scary Live Episode No. 22. This will somewhat of a continuation from FIS No. 21, since so many issues arise in the context of traffic stops. Firearms, searches, lying….. lots of issues and topics.

Federal Civil Rights Lawsuit Filed in the Dog-Crawl-Head-Smash Video Case

Yesterday afternoon we filed a federal civil rights lawsuit against the police officers involved in the viral video showing police (without a warrant) forcing my client, James Walkup, to crawl to his own front door, only to have his head smashed with a boot on his front porch. If you haven’t seen the video, here it is:

This happened in the Western end of Greenbrier County, West Virginia. And here’s the filed lawsuit, now pending in the Beckley Division of the Southern District of West Virginia. We made claims for unlawful search and seizure, as well as use of excessive force. The defendants are one Rainelle, WV police officer and two West Virginia State Troopers.

Video update Part 2, providing more background and evidence in the case, and summarizing the lawsuit:

Here’s the damage to Mr. Walkup’s head:

Here’s the Rainelle Police Department officer who smashed Mr. Walkup’s head:

Here’s the West Virginia State Trooper who grabbed the phone and turned it off, and who we allege attempted to delete the video footage (which was retrieved in the trash of the phone’s “cloud”):

THAT MOMENT YOU REALIZE YOUR BUDDY’S BOOT STOMP WAS CAUGHT ON CAMERA……