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.
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:
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.
Yesterday afternoon, the West Virginia Supreme Court of Appeals clerk’s office released the Formal Statement of Charges against Raleigh County, West Virginia Family Court Judge Louise E. Goldston – a 26 year Family Court judge. This is the judge caught on video searching the home of my client, Matt Gibson – threatening him with arrest if he didn’t allow her in. Here’s the post with the original video, as well as the update video, if you haven’t seen it. The charges state that on March 11, 2020, investigators opened a complaint, and that a subsequently second complaint was filed by my client, Matt Gibson.
For reference, I originally uploaded the video of the judge searching Matt’s property on March 10 – the day before the inception of the opening of the investigation. The video quickly went viral, and by the next day an investigation had essentially opened itself. In other words, the power of Youtube is great. In one day, it found its way into the eyeballs of the Judicial Investigation Commission, the only folks with the power to lodge judicial disciplinary charges against judges in West Virginia.
The Supreme Court of Appeals of West Virginia established the Judicial Investigation Commission to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges and to determine if a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.
If you want to report what you believe is judicial misconduct, or a civil rights violations committed by a judge, anyone can file a complaint with the JIC. Here’s the complaint form.
Any person may file an ethics complaint against a judge. However, a complaint that is filed more than two (2) years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct may be dismissed for exceeding the statute of limitations.
Then, even though covid hit, the investigation apparently proceeded, and 6 months later the charges dropped (which was yesterday, 10/2/20). I just happened to be traveling when the charges came out, so it wasn’t really until this morning that I was able to digest them.The Formal Statement of Charges alleges that:
FAMILY COURT JUDGE GOLDSTON violated Rule 1.1 (compliance with the law), Rule 1.2 (confidence in the judiciary), Rule 1.3 (avoiding abuse of prestige of office), Rule 2.2 (impartiality and fairness), Rule 2.4(B) (external influences), Rule 2.5 (competence, diligence and cooperation) and Rule 3.1(A), (B), (D) (extrajudicial activities in general) of the Code of Judicial Conduct….
In other words, the JIC concluded that the judge failed to comply with the law, committed actions which undermines confidence in the judiciary,abused the prestige of her office, was impartial and unfair, allowed external influences on her actions, was incompetent, un-diligent (is that a word?) and uncooperative, and engaged in extrajudicial activities. According to the charges, these home “visits” (searches) have been going on “over the past twenty years.”
Over the past twenty years as a Family Court Judge, Respondent has been engaging in the practice of visiting homes of litigants appearing in front of her. Respondent went to the litigants’ homes to either determine if certain disputed marital property was present and/or to supervise the transfer of disputed property. Respondent admitted to conducting these home visits in her capacity as a Family Court Judge on eleven separate occasions in different cases.
In every instance except Mr. Gibson’s case, all of Respondent’s home visits were prompted by a motion by a litigant’s attorney and not objected to by the opposing party and will full knowledge of the purpose therein. Most of the Respondent’s home visits occurred during a court hearing in the case. A party’s attorney would move the Court to leave directly from the bench and accompany the parties to the home. After granting the motion, Respondent would meet the parties at the home.
The JIC interviewed the judge and asked her what authority she had to engage in this practice:
On July 22, 2020, Judicial Disciplinary Counsel took Respondent’s sworn statement. Respondent admitted that she failed to inform Mr. Gibson of the purpose of the home visit while the parties were in the courtroom and that she did not give him any opportunity to object thereto until everyone was at his house.
Respondent opined that she believed it was proper to visit litigants’ homes. Respondent likened the practice to a jury view or similar continuation of the court proceeding and stated that as a finder of fact it was necessary to determine whether a party could be held in contempt for not turning over personal property as previously ordered by the Court.
When asked, Respondent could provide no statute, rule or case that gave her the authority to conduct home visits. Respondent also acknowledged that there was nothing in the contempt powers that gave her the authority to conduct a home visit. Respondent confessed that she never held anyone in contempt prior to going to the home and that she failed to enter any order subsequent to the visit reflecting what had happened at the residence, whether any items had been secured and/or whether or not a party was in contempt.
I was absolutely correct when I first reviewed the video. There was no legal basis upon which a judge could search a home as was portrayed in the video. The fact that this judge had been doing it for the past 20 years, was not itself justification. Instead, this sobering fact proves that many former Family Court litigants are absolutely correct when they rant about corruption and unlawfulness. Over the past 20 years, at least 10 other victims have been subjected to this in this judge’s “courtroom,” subjected to unlawful “home visits” upon the motion of an attorney, and without objection from any other attorney.
I wonder how many of these visits involved this one particular attorney involved in this video? After all, it was this attorney who left a voice message for Mr. Gibson the night before the search, offering $5,000 in exchange for foregoing what would essentially be a Family Court anal probing:
This whole thing reeks to me, and sounds a lot like a “pay to play” style judicial experience. Had he paid 5 grand, he could have avoided being lucky number 11? Time will tell, hopefully. Roots run deep in a 20 year period inside one particular court. Perhaps this had something to do with a local Family Court attorney going on TV following my initial TV appearance with my client, to say that I was wrong, and that “home visits” were a perfectly legal Family Court practice. Yeah, okay…..
BECKLEY, WV (WOAY) – UPDATE: On Thursday, we ran a story about a Raleigh County man involved in a contempt case after a finalized divorce whose recording of a family court judge went viral. Matt Gibson claimed the search of his home was against his 4th Amendment rights. Because the judge and the opposing attorney cannot comment on ongoing litigation, local family attorney [let’s call him JOHN DOE] is speaking out saying Judge Louise Goldston was doing her job and doing it legally.
“What I think is most important to know about this is when you see a video on YouTube, when you see a Terry search, when you see something and immediately it doesn’t match what we’ve always seen on television that doesn’t make it wrong,” he said. “Because they didn’t do it that way on Law and Order doesn’t mean that a judge that has decades of experience is breaking the law.”
It looks like I was right, and he was wrong. So, he said the judge wasn’t allowed to respond, so he was responding on her behalf? Why is that, I wonder? That’s a rhetorical question, of course. Is he saying that she asked him to respond and defend her publicly? Another good point that the JIC makes in the statement of charges, is that if the judge, and her local family court lawyers, are going to characterize her actions as a lawful component of a judicial proceeding, then they have some issues to consider:
Respondent admitted that she never had any clear or written procedures for conducting a home visit, including but not limited to, when the proceeding should be utilized and how the process should take place. She also acknowledged that she never took a court reporter to the scene.
Upon reflection, Respondent agreed that the practice could make her a potential witness to a future proceeding which could then result in her disqualification. Respondent further agreed that family court judges run the risk of disqualification if he/she were to become a witness in a subsequent proceeding pertaining thereto.
Respondent also agreed that the burden of proof in a contempt proceeding rests not with the Family Court Judge but with the moving party. She agreed that it is the moving party’s responsibility to provide evidence in support of his/her contention that the other side has failed to produce the items in question. Respondent admitted to improperly putting herself into the role of litigant.
Like I said during the TV interview, the reason I’ve never heard people complain about having their homes searched by judges before, is because that’s not what judge do – judges don’t search homes. This judge was acting in the role of a litigant. So it was basically like Trump debating both Biden and Chris Wallace in the first presidential debate. That’s not how it’s supposed to work. The opposing attorney is supposed to submit evidence and prove his case. Here you had a judge doing both of these things, and then engaging in an unlawful search of one party’s home, on behalf of the other party. Why? That’s yet another rhetorical question of course. If the other 10 victims were represented by lawyers, why didn’t they object?
And then there’s the 800 pound gorilla in the room: the Sheriff’s Department assisting the judge in these actions. On how many of these 10 other searches were they present? The statement of charges also notes that the bailiff (a sheriff’s deputy) forced Mr. Gibson to stop his recording, and that he himself started to record what happened inside the home:
Upon Respondent’s arrival at Mr. Gibson’s property, Mr. Gibson had a bystander video record the initial interactions outside the house between Respondent and the parties. Mr. Gibson also secretly recorded several minutes of audio of the initial interaction on his cell phone.
When the video and audio recording were discovered by Respondent, she ordered both recordings stopped. However, once inside the house, Respondent’s bailiff used his phone to record both video and audio of the separation of marital assets.
Where is this video, and why hasn’t it been produced? I heard through the grapevine, that following my initial uploading of the Youtube video, that the Sheriff of that county sent around a memo to the effect of, “no more going anywhere with a judge….” Of course, the JIC doesn’t investigate law enforcement, nor discipline them. You might find this shocking, but there is no state agency or commission which investigates law enforcement officers in the way that judges, and even lawyers, are investigated (there’s a pending disciplinary complaint against the lawyer who was involved here as well).
The only consistent investigator of law enforcement misconduct in West Virginia is me, sadly. Those who were involved in the search of my client’s house will be explaining their actions. I can’t put people in jail, nor discipline them, so we’ve pretty much come full circle. I have to demand money damages for my client, and they’ll have the opportunity to avoid what’s coming their way. It ain’t pretty, but that’s the relief available. Unless someone wants to deputize me as a special federal prosecutor or something…..
UPDATE, and Part 2, to one of the craziest search and seizure cases I’ve ever seen, or personally been involved with: The West Virginia Family Court judge who’s searched the home of a federal law enforcement officer, looking for his ex-wife’s DVDs and other stuff, a year and a half after they divorced….. and got caught by YouTube.
Another UPDATE 10/2/20: The judge has been charged. The Statement of Charges was just released this afternoon:
“No Knocks” are in the news following the Breonna Taylor shooting case. What is a “No Knock” warrant and when/how are they legal under federal constitutional law? One of my favorite topics. By favorite I mean that if I was a middle eastern dictator they would flow freely. This has been in the news now following the Breonna Taylor case. I’ll offer some analysis on that case, and also answer other civil rights constitutional law questions, if you have any – since this is LIVE.
Biden bypassed Congress to target homemade and pistol-braced firearms. At the same time, he is calling on Congress and states to enact Red Flag gun confiscation orders. Like a dictator, Biden is seeking to unilaterally regulate firearms that gun owners currently own.
Join me as I catch up with John Crump from the #GOA – Gun Owners of America, who are actual #FrontLineHeroes in the fight to preserve liberty and prevent tyranny. #2ndAmendment
What do you need to know and how can you help?
Gun Owners of America (GOA) is a non-profit lobbying organization formed in 1976 to preserve and defend the Second Amendment rights of gun owners. GOA sees firearms ownership as a freedom issue. Over the last 30 years, GOA has built a nationwide network of attorneys to help fight court battles in almost every state in the nation to protect gun owner rights. GOA staff and attorneys have also worked with members of Congress, state legislators and local citizens to protect gun ranges and local gun clubs from closure by overzealous government anti-gun bureaucrats. As an example, GOA fought for and won, the right of gun owners to sue and recover damages from the federal Bureau of Alcohol, Tobacco and Firearms (BATF) for harassment and unlawful seizure of firearms. https://www.gunowners.org/about-goa/
DONATE TO GOA HERE: https://donate.gunowners.org/
Searches and Seizures in the Home and No-Knock Warrants, i.e., the “Knock and Announce” Requirement, Generally:
In the Home: No Warrant? Presumptively Illegal: Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. On the other hand, outside a person’s home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.”
Outside the Home: No Warrant? No Need unless REP: To the contrary, the U.S. Supreme Court has found that no presumption exists outside the home, because a person does not have a reasonable expectation of privacy for most “places” outside one’s own home. These unprotected “places” include bank accounts, curbside trash, “open fields,” surrounding one’s home, and so on.
Search of home with a warrant: presumptively legal: So since the inverse is true, all searches of a home, made pursuant to a warrant are presumptively reasonable. The standard for a warrant requires only that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” It is still a requirement, obviously, that police officers tell the truth when they make their search warrant applications. If it is discovered that false information was intentionally provided to the magistrate, the warrant will be fraudulent, and therefore ineffective. At which point, we’re back to the search being presumptively unreasonable. During the execution of a lawfully-obtained search warrant, officers may temporarily seize the inhabitants of the structure being searched, including handcuffing them.
There is a default “knock and announce” requirement under the Constitution, though it frequently is ignored. Can officers make, or apply, for a no knock entry just b/c the homeowner has a CCW? Check out the 4th Circuit case out of West Virginia, Bellotte v. Edwards (4th Cir. 2011), authored by Judge Wilkinson. Judge Gregory was also on the panel:
The knock-and-announce requirement has long been a fixture in law. Gould v. Davis, 165 F.3d 265, 270 (4th Cir. 1998). Before forcibly entering a residence, police officers “must knock on the door and announce their identity and purpose.” Richards v. Wisconsin, 520 U.S. 385, 387 (1997)….
“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards, 520 U.S. at 394. The Supreme Court has admonished that “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Id. We have thus required a particularized basis for any suspicion that would justify a no-knock entry. See United States v. Dunnock, 295 F.3d 431, 434 (4th Cir. 2002)…..
Of course, the absence of a no-knock warrant “should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.” Richards, 520 U.S. at 396 n.7. But where, as here, the officers faced no barrier at all to seeking no-knock authorization at the time they obtained a warrant, “a strong preference for warrants” leads us to view their choice not to seek no-knock authorization with some skepticism. United States v. Leon, 468 U.S. 897, 914 (1984)….
To permit a no-knock entry on facts this paltry would be to regularize the practice. Our cases allow officers the latitude to effect dynamic entries when their safety is at stake, but the Fourth Amendment does not regard as reasonable an entry with echoes, however faint, of the totalitarian state…..
It should go without saying that carrying a concealed weapon pursuant to a valid concealed carry permit is a lawful act.The officers admitted at oral argument, moreover, that “most people in West Virginia have guns.” Most importantly, we have earlier rejected this contention: “If the officers are correct, then the knock and announcement requirement would never apply in the search of anyone’s home who legally owned a firearm.” Gould, 165 F.3d at 272; accord United States v. Smith, 386 F.3d 753, 760 (6th Cir. 2004); United States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993). We recognized over a decade ago that “[t]his clearly was not and is not the law, and no reasonable officer could have believed it to be so.” Gould, 165 F.3d at 272.
We received the brief from the lawyers for Putnam County, West Virginia in the Michael Walker case, the AR-15 open carry case currently pending at the Fourth Circuit. In case you haven’t seen it, here’s the video of the interaction at issue in the case:
The primary issue in dispute is whether a police officer can stop, detain and run a criminal background check, on an individual safely and lawfully openly-carrying an AR-15 style rifle. Putnam County’s law enforcement is arguing essentially that the AR-15 is a weapon of mass murder and warfare, and that it’s inherently suspicious of criminal conduct. Here are a few nuggets from their brief:
Finally, Mr. Walker’s argument that AR-15 style rifles may not be treated differently than less deadly firearms for reasonable suspicion purposes holds no basis in law, and is contrary to the public safety and intuitive sense. Different firearms have different utilities, purposes, and common uses, and their presence therefore draws different inferences. An AR-15 has more killing power, and is more commonly used in indiscriminate public gun violence than many more commonplace sporting or self-defense weapons, and therefore raises a greater concern for public safety in context. The fact that the AR-15 is so notoriously popular among the deadliest mass shooters also raises reasonable concerns over a copycat mass shooting. Objects need not be illegal for their presence, in appropriate context, to contribute to reasonable suspicion, and there is no reason for bearers of AR-15 style rifles to receive special protection.
“Killing Power?” Is that a scientific unit of measurement. If shotguns are okay, or a bolt-action hunting rifle is okay, then I wonder if they’re aware that an AR-15 uses a .223 caliber diameter round, which is unlawful to use for hunting in some states because it’s too small of a caliber, and therefore not deadly enough for game such as deer (as compared to the good ‘ole .308 or .270 Winchester calibers, etc., etc.).
This is a suburban residential and commercial area which is unsuitable for hunting or target shooting, and Mr. Walker was not wearing any items of blaze orange, or anything else which would signal to an observer that his intention was hunting. (See id.). Furthermore, this interaction occurred in February, when almost no commonly hunted animals, with the exception of noxious pests, are in season. Nor is an AR- 15 a weapon commonly used for hunting, such as a deer rifle or shotgun, or carried for self-defense, such as the handgun possessed by Mr. Troupe in Black. I
Was I the only one who just saw something happen on the news recently involving an AR-15 openly carried for self-defense, and used in self-defense? I think I recall something like that in the news. I bet this is also news to all their law enforcement officers in their county, and surrounding counties, who have an AR-15 in the police cruisers. Those are for hunting, right? Definitely not self defense. It appears that they just don’t like the AR-15:
The mass shooter’s preference for AR-15’s is because, as former U. S. Marine infantry officer and author of “The Gun,” a history of assault rifles and their effects upon security and war, C. J. Chivers, wrote in a February 28, 2018 New York Times column: When a gunman walked into Marjory Stoneman Douglas High School on Feb. 14, he was carrying an AR-15-style rifle that allowed him to fire upon people in much the same way that many American soldiers and Marines would fire their M16 and M4 rifles in combat. See Chivers, C. J., Larry Buchanan, Denise Lu, and Karen Yourish, With AR-15s, Mass Shooters Attack With the Rifle Firepower Typically Used by Infantry Troops, The New York Times (Feb. 28, 2018),
In sum, AR-15 style rifles give the wielder the capability to kill more people in a shorter amount of time than more commonplace styles of firearm, making it an appealing choice for a would-be mass shooter whose goal is exactly that, and a greater danger to public safety than would more commonplace, less-powerful, lower-capacity firearms, such as shotguns or handguns.
How is a .223 caliber rifle “more powerful” than a .308 bolt action hunting rifle? I wonder if they know that the M-60 machine gun is chambered in .308? I wonder if they know that our military has snipers who kill human beings with what are essentially hunting rifles chambered in the same caliber as hunting rifles, such as .308 caliber? They don’t chamber sniper rifles in .223 caliber found in AR-15s, because they are not powerful enough. Complete hogwash……
As discussed in prior sections of this brief, AR-15 style rifles have been featured in substantially all of the deadliest mass shootings in this decade. Mass murderers in Las Vegas and Orlando have killed and wounded over one hundred people in a single event with AR-15. Revolvers and bolt-action deer rifles do not share that infamy. It is therefore reasonable to infer that a person attempting to copycat a mass shooting would likely use the weapon of choice of mass shooters. If officers are concerned about a potential mass shooter, certainly they would justifiably be more concerned by a person carrying an AR-15 than one of the many firearms more commonly used for hunting or self-defense. Different inferences may be reasonably drawn from the presence of different firearms, because different firearms are used for different things: a person viewed at a gun range carrying a shotgun may be presumed to be there to shoot clay pigeons, whereas a person carrying a rifle is almost certainly not.
This is coming from the first county in the State of West Virginia to declare itself a “Second Amendment Sanctuary.” L.O.L. Also, by the way, there was no indication whatsoever that there was any indication or concern that Michael Walker could have been a copycat mass-murderer. That was all made up by lawyers after the lawsuit was filed. The entire incident was filmed. The entire 911 transcript exists. There was nothing that day to concern law enforcement, nor which did concern law enforcement, that Michael was a threat to a school. It was merely harassment for openly carrying a lawful and safely carried AR-15 style rifle.
Next we get to file a Reply Brief, responding to their response. At that point it will be in the hands of the Court. They can hold oral arguments, or rule on their briefs.
Also the new 9th Circuit opinion, firearms history and I’ll show you an authentic Model 1866 Winchester Assault Rifle.
Duncan v. Becerra ruling 9th Circuit:
On Friday, a panel of the 9th Circuit Court of Appeals affirmed (by a 2-1 vote) a federal district court’s ruling that so-called “large capacity” magazines are protected by the Second Amendment. In the live cast, I discussed the ruling and the great foundation it lays for inclusion and equal treatment of AR-15 style rifles in the context of the 2nd and 4th Amendments. I may be the first lawyer to have cited this language, since it came down the same day I filed the brief in the Walker case:
“That LCMs [large capacity magazines] are commonly used today for lawful purposes ends the inquiry into unusualness. But the record before us goes beyond what is necessary under Heller: Firearms or magazines holding more than ten rounds have been in existence — and owned by American citizens — for centuries. Firearms with greater than ten round capacities existed even before our nation’s founding, and the common use of LCMs for self-defense is apparent in our shared national history.
Semi-automatic and multi-shot firearms were not novel or unforeseen inventions to the Founders, as the first firearm that could fire more than ten rounds without reloading was invented around 1580. Rapid fire guns, like the famous Puckle Gun, were patented as early as 1718 in London. Moreover, British soldiers were issued magazine-fed repeaters as early as 1658. As a predecessor to modern revolvers, the Pepperbox pistol design pre-dates the American Revolution by nearly one hundred years, with common variants carrying five to seven shots at the ready and with several European variants able to shoot 18 or 24 shots before reloading individual cylinders. Similarly, breech-loading, repeating rifles were conceptualized as early as 1791.
After the American Revolution, the record shows that new firearm designs proliferated throughout the states and few restrictions were enacted on firing capacities. The Girandoni air rifle, developed in 1779, had a 22-round capacity and was famously carried on the Lewis and Clark expedition. In 1821, the Jennings multi-shot flintlock rifle could fire 12 shots without reloading. Around the late antebellum period, one variant of the Belgian Mariette Repeating Pepperbox could fire 18 shots without reloading. Pepperbox pistols maintained popularity over smaller- capacity revolvers for decades, despite the latter being of newer vintage. At this time, revolving rifles were also developed like the Hall rifle that held 15 shots.
The advent of repeating, cartridge-fed firearms occurred at the earliest in 1855 with the Volcanic Arms lever-action rifle that contained a 30-round tubular magazine, and at the latest in 1867, when Winchester created its Model 66, which was a full-size lever-action rifle capable of carrying 17 rounds. The carbine variant was able to hold 12 rounds. Repeating rifles could fire 18 rounds in half as many seconds, and over 170,000 were sold domestically. The Model 66 Winchester was succeeded by the Model 73 and Model 92, combined selling over 1.7 million total copies between 1873 and 1941.
The innovation of the self-contained cartridge along with stronger steel alloys also fostered development in handguns, making them smaller and increasing their capacities. Various revolver designs from France and Germany enabled up to 20 shots to be fired without reloading. A chain-fed variant, the French Guycot, allowed pistols to carry up to 32 shots and a rifle up to 100 shots. One American manufacturer experimented with a horizontally sliding “row of chambers” (an early stacked magazine) through a common frame, dubbed the Jarre “harmonica” pistol, holding ten rounds and patented in 1862. In 1896, Mauser developed what might be the first semi-automatic, recoil-operated pistol — the “Broomhandle” — with a detachable 20-round magazine. Luger’s semiautomatic pistol hit the market in 1899 and came with seven or eight round magazines, although a 32- round drum magazine was widely available.
In 1935, Browning developed the 13-round Hi-Power pistol which quickly achieved mass-market success. Since then, new semi-automatic pistol designs have replaced the revolver as the common, quintessential, self-defense weapon. Many of these pistol models have increased magazine capacities as a result of double-stacked magazines. One of the most popular handguns in America today is the Glock 17, which comes standard with a magazine able to hold 17 bullets.
Rifle magazine development paralleled that of pistol magazines. In 1927, Auto Ordinance Company released its semi-automatic rifle with a 30-round magazine. A decade and a half later, the M-1 carbine was invented for the “citizen soldier” of WWII. The M-1 remained a common and popular rifle for civilians after the war. In 1963, almost 250,000 M- 1s, capable of holding between 15 and 30 rounds, were sold at steeply discounted prices to law-abiding citizens by the federal government. The ultimate successor to the M-1 was the M-16, with a civilian version dubbed the Armalite Model 15, or AR-15. The AR-15 entered the civilian market in 1963 with a standard 20-round magazine and remains today the “most popular rifle in American history.” The AR- 15 was central to a 1994 Supreme Court case in which the Court noted that semiautomatic rifles capable of firing “only one shot with each pull of the trigger” “traditionally have been widely accepted as lawful possessions.” Staples v. United States, 511 U.S. 600, 602 n.1, 603, 612 (1994). By the early-1970s, the AR-15 had competition from other American rifle models, each sold with manufacturer- standard 20-round or greater magazines. By 1980, comparable European models with similar capacities entered the American market.
The point of our long march through the history of firearms is this: The record shows that firearms capable of holding more than ten rounds of ammunition have been available in the United States for well over two centuries.7 While the Supreme Court has ruled that arms need not have been common during the founding era to receive protection under the Second Amendment, the historical prevalence of firearms capable of holding more than ten bullets underscores the heritage of LCMs in our country’s history. See Heller, 554 U.S. at 582.”
Well, here’s our opening brief in the Walker v. Putnam County, et al. open carry case. This went from a relatively simple search and seizure Section 1983 civil lawsuit, to a battle over gun rights and whether or not the AR-15 is entitled to equal treatment under the law at the U.S. Fourth Circuit Court of Appeals. This is the case where my client was stopped, harassed, and called a co@ksucker, twice, for trying to mind his own business and go coyote hunting. Just one nugget out of the video:
It is your fault! Because you co$ksuckers . . . start it. I ask you for ID – when a law enforcement officer asks you for ID, it’s not “I don’t have to provide it,” it’s “here it is, sir,” because, by law, you fucking got to give it, when you are asked for it. And if you think you don’t, [then] press the issue, we’ll find out; I’ll hook you, book you, jamb you in the jail; and then you can’t answer to a God damned judge.
At the urging of Putnam County (W. Va.), the Court ruled against us at the trial court level, and well, ruled against AR-15 style rifles as well:
Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here. Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting.
Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited. The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm.
Why might you care about these issues? If you live in the jurisdiction of the Fourth Circuit (WV, VA, MD, NC, SC), and in particular one of the open carry states therein (WV, VA, and NC) then the outcome of this case will affect your rights one way or the other. We’ve had a couple of really bad gun rights decisions handed down in the Fourth Circuit in 2017 (US v. Robinson and the Kolbe case). If we lose this one, our last vestige of gun freedoms, contained in the holding of US v. Black (2013) will be overturned.
Since AR-15 style rifles are completely legal to possess in West Virginia, including in the context of open carry, we had to appeal, and we had to cover a lot of ground in our opening brief. Mind you, there’s a page limit, and I spent hours deleting great arguments I had already written, as well as great quotes I wanted to include, in order to bring it under the page limit:
In “Freedom is Scary” LIVE No. 3, I discuss Brazilian Jiu-Jitsu (“BJJ”) with former law enforcement officer and BJJ academy owner/coach, Adam Martin.
Why? Because ever since the death of George Floyd, “chokehold” has been the word of the day. Trump brought them up in his June 16, 2020 Executive Order, and now many states have issued orders, or enacted legislation, banning the use of so-called “chokeholds” by police officers.
The problem is, that the term doesn’t mean what they think it means, and in doing so, they’re changing the rules of self defense for police officers. As with other civil rights, if you allow it to be done to one group of people, it always grows like a virus to include groups of people who were not intended to be affected. In this video we discuss what that means.
On June 16, 2020, President Donald Trump (R) issued an executive order, titled Executive Order on Safe Policing for Safe Communities, addressing changes to policing on June 16, 2020.The order directed the U.S. Department of Justice to create an independent credentialing body that would develop a set of criteria for state and local law enforcement agencies to meet in order to be awarded federal grants. The order stated that the criteria should address excessive use of force, include de-escalation training, and ban the use of chokeholds, except when the use of deadly force is lawful.
The chokehold provisions of Trump’s E.O.:
(i) the State or local law enforcement agency’s use-of-force policies adhere to all applicable Federal, State, and local laws; and
(ii) the State or local law enforcement agency’s use-of-force policies prohibit the use of chokeholds — a physical maneuver that restricts an individual’s ability to breathe for the purposes of incapacitation — except in those situations where the use of deadly force is allowed by law.
Just what in the hell does that mean anyways…..
Many states have followed suit, banning “chokeholds.” Most notably, I’ll point out that Connecticut actually got the terminology correct, successfully banning pretty much every good submission you’ll see on the UFC.
On July 31, 2020, Governor Ned Lamont (D-Conn.) signed a policing policy bill into law. Under HB 6004, the following was enacted, according to the governor’s office:
On June 15, 2020, Lamont signed an executive order to change law enforcement strategies. The order banned “the Connecticut State Police from using chokeholds, strangleholds, arm-bar control holds, lateral vascular neck restraints, carotid restraints, chest compressions, or any other tactics that restrict oxygen or blood flow to the head or neck,” according to a press release from the governor’s office.
You’ll have to watch the discussion to see what Adam has to say about this policy, but it has something to do with not being a state trooper in Connecticut…..
So a few days ago, I represented a guy down in McDowell County, West Virginia, on a misdemeanor charge of driving on a two-lane road in an ATV/UTV/side-by-side. West Virginia law allows you to do this. But apparently there is confusion, or ignorance, in the local sheriff’s department and/or prosecutor’s office. We were forced to have a trial, which resulted in a not guilty verdict. Here’s the actual criminal complaint charging my client with the non-crime of operating an ATV on a two-lane road in West Virginia:
Clearly this police officer was wrong about the law.
W. Va. Code Section 17F-1-1 allows ATVS to:
Operate on any single lane road (most roadways in rural West Virginia).
Operate on a two-lane road for a distance of 10 miles or less, so long as the ATV it is either on the shoulder of the road, or as far to the right on the pavement as possible if there is insufficient shoulder to ride on, and at a speed of 25 mph or less, in order to travel between “a residence or lodging and off-road trails, fields and areas of operation, including stops for food, fuel, supplies and restrooms.” If operated at night, an ATV must be equipped with headlights and taillights, which must be turned on – obviously. Read it for yourself, here: https://www.wvlegislature.gov/WVCODE/Code.cfm?chap=17f&art=1
So, slightly confusing and a few grey areas, but if you’ve been around the Hatfield & McCoy Trails, you know that it’s necessary to use a two-lane road at times to get where you need to go on an ATV. And in other counties, where there are no Hatfield & McCoy Trails, we still need to go down two-lanes at times to get from one place we’re allowed to ride, to another (whether farms/fields/one-lanes/gas stations, etc.)
Unfortunately however, when we arrived to court on this particular case, the prosecutor looked at me in amazement when I told her that the client hadn’t committed a crime, even assuming all the allegations in the criminal complaint are true. She said dismissively that the client could plead guilty and pay the fines. Of course, I said, “no way, Jose.”
So we had a trial. During the trial, the charging police officer testified that no ATVs are ever allowed to be on a two-lane road, and that his supervisor instructed him, in accordance with this, to “clear” ATVs from the roads, because the Hatfield & McCoy system was closed by the Governor due to COVID-19.
But that has nothing to do with the statute. The Governor can’t change the ATV laws by executive order; nor did he attempt to. Accessing the H&M trails isn’t the only reason ATVs are used in West Virginia. The officer cited 17F-1-1 as his legal authority to “clear the roads.” But in reality, the law still says what it says. Therefore, the magistrate judge correctly found my client not guilty.
There had been no allegations of unsafe or improper operation of the ATV – just that he was on a double yellow line. The officer testified that he didn’t know where the client was coming from – nor where he was going. He had no evidence that my client had been illegally operating on the H&M trail system. The complaint itself corroborates this. It didn’t mention anything other than the fact that he caught him on a two-lane.
However, there were facts pertaining to the officer’s conduct. He got angry and took the citation back, after the mayor of the town where this occurred – Northfork – apparently said that ATVs were welcome and allowed in her ATV-friendly town. Muttering the “F word,” the officer left the city hall, confiscated citation in hand. The testimony at trial was that about an hour later, the officer showed up at my client’s residence – the client wasn’t even home at the time – and threw the citation inside the empty, parked ATV in the driveway. That wasn’t the reason for the not guilty verdict, just a bizarre way to re-issue a ticket. But in any event, it was a non-crime, so the verdict was rightly “not guilty.”
Following the trial, I posted on Facebook that my client had been found not guilty, and that the Governor’s tyrannical executive orders had no effect on the state’s ATV laws, and expressed disbelief that the local sheriff’s department and prosecutor’s office would hassle ATV riders, when that’s really the only thing the local economy has going for it at this point. Did I bash a county by saying this? No, facts are facts. I said nothing about the county, unless you’re referring to the sheriff’s department and the prosecutor’s office prosecuting an innocent man for a non-crime.
Let’s look at the facts though…..
To argue that McDowell County doesn’t have a crisis economy is to stick your head in the sand. Pointing this out is not bashing, nor exploiting, the county. Anyone who makes such an accusation, is either ignorant, or a willing propagandist. Hell, in 1963 – I’ll repeat: 1963 – President John F. Kennedy said:
I don’t think any American can be satisfied to find in McDowell County, West Virginia, 20 or 25 percent of the people of that county out of work, not for 6 weeks or 12 weeks, but for a year, 2, 3, or 4 years.
The situation has only worsened there. McDowell County has been classified as a “food desert” by the USDA. In 2017, there were two full-sized grocery stores serving the county’s 535 square miles. The only Walmart super center in the county closed in 2016 Coyne, Caity (April 7, 2018). “In McDowell County ‘food desert,’ concerns about the future”. Charleston Gazette-Mail. Retrieved January 19, 2020. I don’t know that I’ve ever seen another closed Walmart anywhere in the country.
WELCH — For years, it has been difficult for McDowell County officials to recognize the obvious fact that deserted and dilapidated structures countywide represent a negative image for visitors to the county.
“U.S. Route 52 is the gateway to our county,” Harold McBride, president of the McDowell County Commission said during a press conference Friday morning at the McDowell County Public Library in Welch. “It looks like a Third World country,” he said and added that most of the dilapidated buildings are owned by people who live outside the state and “think they have something.”
There were 100,000 people in McDowell County in 1950. Today, there are about 22,000 residents,” Altizer said.From 2000 to 2010, McDowell County’s population dropped by nearly 20 percent, from 27,329 people to 22,064 people, according to the U.S. Census Bureau.”It is so sad we are losing so much population. Half of our homes are on homestead exemption, which lowers property taxes for people who are over 65 or disabled,” Altizer said during a recent interview in the McDowell County Courthouse.Today, Altizer said, most income to county residents come from coal and natural gas jobs, or from checks retired people receive — Social Security, black lung, the Veterans Administration and United Mine Workers.”The monthly West Virginia Economic Survey prepared by Workforce West Virginia recently reported there were about 6,000 people working in the county, many of them with government jobs or fast-food jobs. We have an older population today. And there are not new jobs here,” Altizer said.”Coal and gas are keeping us going.
Here’s an interesting article, with photos from an actual photographer, rather than the few I snapped with my obsolete iPhone. Take a look for yourself and determine if the few pictures I snapped were somehow misleading about the blight in the county:
This decline in work lead to the creation of modern era food stamps. The Chloe and Alderson Muncy family of Paynesville, McDowell County were the first recipients of modern day food stamps in America. Their household included 15 people. The city of Welch, and crowds of reporters watched as Secretary of Agriculture Orville Freeman delivered $95 of federal food stamps to Mr. and Mrs. Muncy on May 29, 1961. This was an important moment in history, as it was the first issuance of federal food stamps under the Kennedy Administration. This federal assistance program continued to expand for years to come, and is commonly used across the United States today.
Fortunately for the county, in 2018, the state opened two new trail connections in McDowell County. From a May, 2018 newspaper article:
WELCH — Two new ATV trail connections opening today in McDowell County will give visitors direct access to the city of Welch and the town of Kimball, the Hatfield-McCoy Regional Recreation Authority’s executive director said Tuesday.
“As of in the morning (today), we’ll have the town of Kimball and the city of Welch will be connected to the Hatfield-McCoy Trail in the Indian Ridge system,” Executive Director Jeffrey Lusk said. “This will allow riders of the trails to go into those communities to get food and fuel and to stay. These are two new towns that weren’t on the system. Up until today, the only two towns that were connected were Northfork and Keystone….
The new Warrior Trail will connect with Gary and Welch. ATV riders will be able to travel from the town of Bramwell to the town of War starting on Labor Day, he added. More lodging opportunities are needed to help McDowell County’s communities benefit from the increase ATV tourism traffic.
“We’re opening the Warrior Trail System up on Labor Day Weekend,” Lusk said. “We’re in desperate need of places to stay in War, Gary and Welch come Labor Day Weekend.
Tourism traffic continues to grow on the Hatfield-McCoy Trail’s overall system, Lusk stated. Last year, overall permit sales were up by 15.1 percent, and both Mercer and McDowell Counties had the highest growth in sales.
Being an ATV rider myself, I know first hand how the community benefits from the ATV economy. Local entrepreneurs now have opportunities to open ATV resorts, restaurants, and other businesses, which cater to ATV riders. ATV riders bring money. These new ATVs are 15-30k vehicles, each, when it comes to the side-by-sides, and not far off from that for the individual four wheelers. Watch them drive in. They’re driving 70k trucks, pulling 10k trailers, in many instances. They’ve invested heavily in the hobby. They spend money, not only on their equipment, but on food, lodging, gas, and so on. And they come from all over. I’ve even seen guys who drove all the way from Mexico to ride these trails.
Some of them even invest in local real estate, such as the client I represented in this case, who loved the community so much, he bought his own place. But go on and attack me for daring to “bash” McDowell County…. So let’s continue with some facts, instead of knee-jerk emotion.
What are some of the side effects of the economic problems?
Males in McDowell County lived an average of 63.5 years and females lived an average of 71.5 years compared to the national average for life expectancy of 76.5 for males and 81.2 for females. Moreover, the average life expectancy in McDowell County declined by 3.2 years for males and 4.1 years for females between 1985 and 2013 compared to a national average for the same period of an increased life span of 5.5 years for men and 3.1 years for women…..
Then there’s the drug problem. In 2015, McDowell County had the highest rate of drug-induced deaths of any county in the U.S., with 141 deaths per 100,000 people. The rate for the U.S. as a whole is only 14.7 deaths per 100,000 people. (Same citation).
So back to my original point. There’s 99 problems there, and ATVs ain’t one of them. So why hassle ATV riders when they’re bringing money, jobs and fun into the local economy?
Again, ATVs are allowed on single lane roads in West Virginia, and are also allowed on two-lane roads, to get from one place they’re allowed to operate, to another place they’re allowed to operate, so long as it’s a distance of 10 miles or less, and so long as they operate on the shoulder, or as far as the right as possible, and under the speed of 25 mph. Counties and cities in West Virginia are granted the authority by the legislature to increase ATV freedoms. Other than interstate highways, they can authorize ATVs to use two lanes within their jurisdictions with no restrictions whatsoever. That would be what signage would refer to as being “ATV Friendly.”
That’s the law anyways. Whether or not law enforcement and prosecutors in any particular county care or not…. well that’s a different issue.
Update regarding the new Senate Bill 690:
Senate Bill 690 is now in effect in West Virginia. ATVs, side by sides, UTVs, can now be made “street legal” in West Virginia. They are calling this group of vehicles with confusing names, “Special Purpose Vehicles.”
SPVs can now be turned into “street legal SPVs.” The following requirements must be met:
(1) One or more headlamps;
(2) One or more tail lamps;
(3) One or more brake lamps;
(4) A tail lamp or other lamp constructed and placed to illuminate the registration plate with a white light;
(5) One or more red reflectors on the rear;
(6) Amber electric turn system, one on each side of the front;
(7) Amber or red electric turn signals;
(8) A braking system, other than a parking brake;
(9) A horn or other warning device;
(10) A muffler and, if required by an applicable federal statute or rule, an emission control system;
(11) Rearview mirrors on the right and left side of the driver;
(12) A windshield, unless the operator wears eye protection while operating the vehicle;
(13) A speedometer, illuminated for nighttime operation;
(14) For vehicles designed by the manufacturer for carrying one or more passengers, a seat designed for passengers; and
(15) Tires that have at least 2/32 inches or greater tire tread.
(uu) “Low-speed vehicle” means a four-wheeled motor vehicle whose attainable speed in one mile on a paved level surface is more than twenty miles per hour but not more than twenty-five miles per hour.
WV Code §17A-1-1(uu)
A “Special Purpose Vehicle” is defined as:
“Special purpose vehicle” includes all-terrain vehicles, utility terrain vehicles, mini-trucks, pneumatic-tired military vehicles, and full-size special purpose-built vehicles, including those self-constructed or built by the original equipment manufacturer and those that have been modified.
There is a 20 mile limit on the travel on a two-lane road. Controlled-access highways are excluded. That would be interstates and four lanes where there are dedicated access points (on ramps, off ramps, and the like).