The elected sheriff of Berkeley County, West Virginia has just been indicted by a grand jury on charges related to a video I showed you about 8 months ago where he showed up to a car wreck involving his daughter. Do you remember this? On January 20, it was reported in the media that Berkeley County prosecutor Catie Delligatti was requesting the appointment of a special prosecutor, in response to the public’s response to the video footage showing that county’s elected sheriff, Nathan Harmon, responding to the scene of his 22 year old daughter’s extremely suspicious car wreck.
The wreck happened on January 6. The sheriff’s daughter, Carrie Harmon, claimed that she was driving to her friend’s house to have dinner and watch movies, but that a deer ran out in front of her; the road were wet, and she swerved to avoid the deer and then wrecked.
But what really appears to have happened is that her father helped her coverup the fact that what really happened is that she was driving while intoxicated. Most of us, after having crashed while under the influence, would have been actually investigated by the responding police officers. This means that they would have tested our breath for alcohol, given us field sobriety tests and so on. But that’s not what happened here. Why? Because the investigating officer who responded was a deputy for the same county where the driver’s father was the sheriff.
Here’s my original video on this with the full footage:
Imagine that your 62 year old father was driving late at night after 11 hours on the road. Would you worry that he would fall asleep? Hopefully he would just pull over somewhere and take a nap if he was tired. Right? Usually, yes. But not in Spokane County, Washington.
62 year old Kevin Hinton had just driven 11 hours into his road trip back from meeting his brand new baby granddaughter in Oregon. He was too tired to continue driving. He couldn’t keep his eyes open. So he pulled over into a parking lot at Terrace View Park, in Spokane, Washington, to take a nap. Shortly afterwards he would encounter Sgt. Clay Hilton with the Spokane County Sheriff’s Office. Within three minutes, Hilton would forcibly remove Mr. Hinton from his vehicle in such a way as to leave him with 8 broken ribs, a punctured lung, severe concussion, shoulder injury, and a disfigured lip. Why? Because Sgt. Hilton thought he was being rude.
There’s a huge update to the case where my client, Darius Lester, was shot by a SWAT team, while trying to sleep in his home. As explained previously, he had no criminal record and had committed no crime. The West Virginia State Police was executing a search warrant for that residence that was entirely unrelated to Darius. They claimed that Darius confronted them and came at them with a hammer, for which they charged him with a felony. That charge has now been to court….
Imagine your 77 year old grandmother sitting at home one day and an entire SWAT team shows up and raids her house, just because someone’s stolen iPhone supposedly pings at the location. No phone call, no knock and talk, no investigation at all. Just SWAT team. Well that happened.
It was January 4, 2022. Ruby Johnson, 77 years old, a law-abiding citizen and grandmother, was alone at her home. She lives in a neighborhood called Montbello – considered to be one of Denver’s minority neighborhoods, located in northeast Denver, Colorado. Denver Police SWAT executed a search warrant at her home, looking for a stolen vehicle and guns, based entirely on Apple tracking software, “Find My iPhone.” They found nothing and achieved nothing but the contempt they earned from the victim, her family and others in the neighborhood.
The day before the raid, a 2007 white Chevy truck with Texas license plates was stolen from a downtown Denver hotel parking garage. The driver rammed it through the gate and fled. Inside was $4,000 cash, two drones and an iPhone 11. Hours later, the hotel notified the guest who owned the truck and he began tracking the iPhone via the Find My iPhone app. The app supposedly led to Ruby Johnson’s home, before it disappeared.
Based solely on that, the Denver Police Department obtained a search warrant. They chose not to conduct any surveillance or other investigation at the location. They didn’t even bother to drive by the house to see if the stolen truck was there. Or maybe even next door. Nor did they bother to even go perform one of their beloved “knock and talks” at the actual location where the phone pinged. Instead, they activated the SWAT team. Just to be safe, of course. It is a minority neighborhood, after all….
About a dozen Denver SWAT officers poured into the home. They sifted through boxes with the help of a K-9 unit. They used a battering ram to try to open the rear garage door. They broke down the attic door. They also cut the lock to her shed.
Officer Joe Montoya, the head stormtrooper, in an interview with channel 9 news, said officers researched the property and knew 77 year old Ruby Johnson lived at the home alone, which is why they used the “lowest threshold of aggression.” If this SWAT team, along with an armored vehicle, is their lowest threshold of aggression, I’d say their higher thresholds must involve those new-fangled exploding robots. Officer Montoya, like a good government trooper, was just following orders. They’re just doing what stormtroopers do. It’s up to prosecutors and judges to stop them. They have no minds of their own. Here’s what he said:
“I’m not going to second guess the investigation,” he said. “The proper steps were taken. The place where that would have been questioned would have been the DA’s Office and the judge’s level. And they felt comfortable signing that warrant.”
So what about them? Denver Deputy District Attorney Ashley Beck and Judge Beth Faragher both approved the warrant. Kristin Wood, a spokesperson for Denver County Court, said: “Judge Faragher signed the search warrant because she found probable cause existed,” Wood wrote in an email. “If a judge did not find probable cause, he/she would not sign the search warrant.” Prosecutor Beck also would not directly comment. Instead, a spokesperson wrote in an email that the warrant passed legal muster: “I can tell you that our office is obligated to review every search warrant the Denver Police Department writes to ensure it is legally sufficient based on the facts to which the detective swears,” Carolyn Tyler wrote in an email.
So, at least through their spokespersons, the officers blame the judge and prosecutor; the judge blames the prosecutor and officers, and the prosecutor blames the officers and the judge. This is perfectly representative of the efficiency and competency of your government. This is why the DMV runs so smoothly and is your favorite place to visit.
It’s true though that there are two important things to look at when reviewing warrants:
The information provided by law enforcement, under oath, to the judge reviewing the allegations for probable cause; and
Whether those allegations are sufficient to comprise probable cause for the issuance of the warrant.
Looking at the actual search warrant application, completed by Detective Gary Staab, it appears that he relied solely on representations made to him by the owner of the stolen items and did absolutely nothing himself. He notes in the application to the judge that the owner told him that the iPhone pinged to the house and that he drove by the location in a rented vehicle, but that he did not see his stolen truck there.
However, the application notes, theoretically, the stolen phone could be inside the closed garage at the residence. Also theoretically, which the detective notes in his copy and paste warrant, his vast experience tells him that stolen items can be removed from a stolen vehicle and theoretically placed in a garage.
That’s pretty much it. He includes a copy of the owner’s Find My iPhone screenshot and his photos of the residence. The detective did nothing himself. Instead of actually going and knocking on the door, talking to people – you know, detective work – let’s just activate the SWAT team and bust down the door. It’s a black neighborhood, after all. Guns were stolen. Therefore we have black people with guns, potentially. Better bring the armored vehicle as well. Yes she’s a 77 year old grandmother with no criminal history. But you never know. Officers have to make it home that night.
As officers searched her home, Ruby Johnson waited in the back seat of a police car. She told channel 9 news afterwards that the experience was traumatizing and led her to feel unsafe in the home she has lived in for about 40 years. “When I start thinking about it, tears start coming down,” she said. Ruby’s longtime friends have noticed a sadness they hadn’t seen in her before. They don’t see her smile anymore.
Officer Joe Montoya, division chief of investigations with DPD, said the department did not intend to harm Johnson and regrets that the warrant caused suffering.
“We can always apologize and I’d be willing to apologize that there was a warrant issued and evidence was not found there,” Montoya said. “That’s a given, but I don’t think there was anything done to intentionally traumatize her.”
They just don’t get it, do they? They chose to obtain a search warrant and send a SWAT team there. They knew that the only person who lived there was a 77 year old woman who was a law abiding citizen. Yet they sent a SWAT team there first, instead of treating the woman as Officer Montoya no doubt would want his own grandmother treated. They chose to traumatize her. Because they only think of themselves. Officer safety is the only thing that matters to them.
By the way, the stolen truck was later recovered two days after the warrant was executed about six miles away in Aurora. The stolen guns were not in the truck, of course. No arrests have been made.
The point here is, this is a prime example of the fact that police and government misconduct can happen to you, even if you’ve done nothing wrong. This was all done lawfully. Valid search warrant. Valid search. Innocent victim. Wrong house. No stolen items found. This will continue to happen because police officers are not held accountable for their actions. Prosecutors are not held accountable for their actions. And judges certainly aren’t held accountable for their actions. I can guarantee you these things would stop happening if qualified immunity was abolished. If prosecutorial absolute immunity was abolished. If judicial immunity was abolished. But as it is now, they just don’t care, because there are no consequences. The only thing we can do is expose what they’ve done.
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.
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:
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.
Isn’t that weird that I just did a video on the issue of whether there’s a constitutionally protected right to flash your lights at oncoming traffic, in order to warn them of an approaching speed trap, and then what do you know, it ends up happening again right here in West Virginia. This brand new exclusive footage you’re about to see however, is the worst of those incidents I think you’ll ever see anywhere on Youtube. Frankly, I’m disgusted by the actions of this deputy with the Nicholas County, West Virginia Sheriff’s Department.
Here’s the citation William was given:
This was Corporal J.D. Ellison with the Nicholas County Sheriff’s Department. His behavior was disgraceful. But I’m also disappointed in the aftermath here. Corporal Ellison shamefully gave this man a ticket for two alleged violations – at least on paper – which were allegedly having an unsigned registration card, which is total garbage, as well as an alleged “special restrictions on lamps,” which was a frivolous charge meant to fabricate the nonexistent crime of warning fellow Americans about government waste, laziness and tyranny.
Here’s the police report by Cpl. Ellison:
You’re really not going to believe this, but William went to court yesterday in the Magistrate Court of Nicholas County – that’s Summersville, West Virginia. He represented himself. He was being prosecuted by a prosecuting attorney from that county, with the matter presiding before Nicholas County Magistrate Michael Hanks. I’m really shocked to tell you that Magistrate Hanks convicted this man of the alleged crime of “Special Restrictions on Lamps.” He did dismiss the bogus charge of having an unsigned registration card because it’s thankfully not even on the books anymore – which by the way was the offense for which William was placed in handcuffs.
Between the prosecutor and the magistrate, which of those great legal minds thought it was a good idea to convict William of “special restriction on lamps?” Just looking at the statute, which is clearly not meant to apply to this situation, it makes an explicit exception, citing a different statute that allows for flashing lights for the purpose of warning the operators of other vehicles “of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking or passing…, etc.”
Here’s the prior video I did on flashing lights to warn of a speed trap:
Stay tuned for updates. I’m going to help William….
In November of last year I posted a video showing a West Virginia judge flipping out at a traffic stop in Moorefield, West Virginia. In response to a stop he admitted was justified, he nevertheless pulled rank on a young police officer, immediately identifying himself as a judge, getting his supervisor on the phone, and later trying to get him fired, including threatening judicial retaliation against that department. Here’s that video:
I first exclusively obtained the body cam footage via a FOIA request from that police department. Well, now that judge is facing suspension, according to an order that was issued late last week. As explained in my first video on this, Judge Carter Williams was charged with multiple disciplinary violations. Then, in February of this year, I published yet another video about Judge Williams being in trouble again, over allegations that he kept leaving Walmart without paying for his merchandise. I also published a lengthy blog post about it. Here’s the Walmart video:
Since Judge Williams contested the matter, as he’s entitled to do, on June 14 a contested hearing was held before West Virginia’s Judicial Hearing Board over the course of three days. On September 19, the Judicial Hearing Board held a meeting to discuss the evidence presented, and on September 22, they issued an order finding that numerous judicial ethics rules were violated and recommending specific discipline to the West Virginia Supreme Court. Here’s the order:
The Judicial Hearing Board actually hit the nail pretty much on the head when it wrote in the order:
“There is clear and convincing evidence that the Respondent engaged in conduct that was prejudicial to the administration of justice by being unnecessarily belligerent to the traffic officer, by contacting the traffic officer’s supervisor in a manner suggesting he wanted special treatment and punishment for the traffic officer, by contacting the police chief, former police chief, and mayor in a manner suggesting he wanted special treatment, punishment for the traffic officer, and that his rulings in future cases might be influenced by his traffic stop and the action or inaction taken by police officials in response to his complaints against the officer, and by contacting the prosecuting attorney regarding this same subject matter.”
They recommended that Judge Williams be suspended for a period of one year, with all but three months of that suspension be stayed, pending “supervised probation.” Sounds familiar I’d say. So in effect, a three month suspension, without pay, but the possibility of up to a year with bad behavior. Additionally, they recommended a $5,000 fine, as well as reimbursement of $11,129.06 for costs. So we’ll have to wait to see what the West Virginia Supreme Court does with it. Also, I take it this did not include the Walmart allegations, which are still pending as far as I can tell.
A West Virginia Deputy has been indicted by the feds. It just hit the news a few days ago. I figured there must be body cam footage of the incident, so I sent a FOIA request to the employer. I was holding off on discussing the case until I saw the footage. I’ve now received a response, and you’re not going to like it. Here’s what we know right now. Monongalia County Sheriff’s Office Deputy Lance Kuretza has been indicted in federal court for a felony civil rights violation after allegedly punching and pepper spraying a handcuffed suspect, as well as for attempting to cover-it-up by filing a false police report.
The DOJ issued a press release. I went ahead and pulled the unsealed indictment off pacer. Unfortunately it doesn’t contain much in the way of details. I rightfully assumed there must be body cam footage. That has now been confirmed by the U.S. Attorney for the Northern District of West Virginia, who gave a media interview explaining that there was indeed body cam footage of this incident, and that it was key to their decision to indict the defendant officer. He gave some additional details that weren’t in the indictment:
“Once we saw the evidence and interviewed the witnesses we knew this case had to be charged.”
He also noted that the Monongalia County Prosecutor’s Office decided not to pursue state charges.
So, that means the body cam footage must be good – or rather, bad. In fact, he said, “The video really speaks for itself, there’s a lot of it and that’s why body cams are so important…” And if that’s the case, why did the state-level county prosecutor not file charges? That’s a rhetorical question, of course. As you’ll see, the county is now attempting to stop me from sharing this body cam footage with the public. They can give it to the feds, but not the citizens they represent.
As soon as I heard about the initial indictment, and saw the DOJ press release, I sent a FOIA request to the sheriff’s department. As of this morning, they responded, denying my request on the grounds that there’s a federal prosecution taking place. The problem is however, I didn’t FOIA the feds, but rather the county, who has decided not to prosecute. There’s an exception in our state FOIA statute where there’s still an open criminal investigation. But they don’t have one.
What’s happening here is that the county – Monongalia County Sheriff’s Office – is attempting to prevent the public from seeing the video, even though the U.S. Attorney prosecuting the federal indictment just discussed it on the radio. Here’s more of what he said:
Deputy Kuretza and six others responded to a disturbance at the Residence Inn Jan. 20, 2018. An investigation at the scene determined none of the suspects broke laws or would be arrested, but management asked they be escorted from the property.
As the group exited the floor, Kuretza ordered one of the guests to open the door to a nearby room where he found a man sleeping. Kuretza then allegedly began to shake the man and hit his feet to wake him up. When the guest explained he was sleeping, Kuretza threw him off the bed and beat him, investigators said. As the contact escalated, Kuretza restrained the guest as the six other officers were in the room.
“This particular victim had a flashlight in his face and thought it was his friends just messing around with him,” Ihlenfeld said. “It turned out it was a sheriff’s deputy and from there it really got out of control.”
Kuretza battered and used pepper spray on the victim while handcuffed. While the suspect was being taken out of the property Kuretza allegedly continued to use unnecessary force.
“The report that was filed after this did not indicate the pepper spray had been deployed after handcuffs were used, in fact it said pepper spray was deployed before handcuffs were used – which was not consistent with the video evidence we have.”
So I already responded to their denial of my FOIA request and am threatening to sue them for illegally denying my request. The public has a right to see this footage. The sheriff’s department can’t just suppress footage owned by the public. I will get the footage, and now I really want to see it. I pulled the actual indictment and I’ll post it up on the blog if you want to see it. Here’s what it charges:
The indictment contains two counts. The first is deprivation of rights under color of law. This alleges that Lance Kuretza, a Deputy Sheriff with the Monongalia County Sheriff’s Office, while acting under color of law, deprived the victim of his Fourth Amendment rights by engaging in an unreasonable, i.e., excessive, i.e., unnecessary and unjustified, use of force. Specifically, he punched the victim in the face, striking him, spraying him with pepper spray at a time after the victim had been handcuffed. It’s also alleged that he kneed the victim while escorting him. The indictment specifically alleges that this offense included the use of a dangerous weapon and resulted in bodily injury to the victim. Why was that last part alleged? As we’ve discussed before in these glorious cases, where those elements are present, the charge of deprivations under color of law transforms from a misdemeanor to a felony.
Count two alleges that, the following day, on January 21, 2018, Deputy Kuretza knowingly falsified and made a false entry in a record and document with the intent to impede, obstruct, and influence an investigation into his actions. Specifically, it alleges that Kuretza made false entries into a use of force report by falsely stating that he sprayed the victim with pepper spray before the victim was handcuffed, as well as by omitting that he sprayed the victim with pepper spray after the victim was handcuffed, and also omitting that he struck the victim after he was handcuffed.
If convicted, Kuretza faces up to 10 years in prison for the civil rights violation and up to 20 years in prison for falsifying the report.
There’s quite a bit of case law placing police officers on notice that it’s unreasonable excessive force to use tasers and pepper spray on handcuffed arrestees. The Fourth Amendment bars police officers from using excessive force to effectuate a seizure. Courts evaluate a claim of excessive force based on an “objective reasonableness” standard, taking into account “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. These are known as the Graham Factors. The Courts also look at the circumstances as of the moment force was deployed, with an eye toward the proportionality of the force in light of all the circumstances.
There’s already binding legal precedent in the Fourth Circuit, which is where West Virginia is located, that pepper spraying suspects in response to minimal, non-violent resistance is a Fourth Amendment violation. SeePark v. Shiflett (4th Circ. 2001). There’s quite a bit of case law denying correctional officers qualified immunity for using pepper spray unnecessarily, for the purpose of causing pain, or for retaliation, as well as for using it excessively.
There’s a big difference between pepper spraying an arrestee who is handcuffed and one who is not handcuffed. There’s also a difference between the use of pepper spray in a jail or prison context, and use against non-incarcerated individuals, where it’s much more likely to be considered excessive force by the Courts. Unfortunately, I can’t show you the body cam footage. But we now have confirmation that it exists. I may have to sue for it. But I’ll get it one way or the other. I’ll post the documents I have so far up on the blog at thecivilrightslawyer.com. I look forward to following this one and seeing what happens.
What you’re about to see here is outrageous body cam footage that has never before been seen by anyone, other than law enforcement. It shows what happened to my clients, Jason Tartt, the property owner and landlord, as well as Donnie and Ventriss Hairston, his innocent and mistreated tenants, on August 7, 2020, when they were subjected to civil rights violations by two deputies with the McDowell County Sheriff’s Office, Dalton Martin and Jordan Horn.
Today we filed a federal civil rights lawsuit, which is posted below. But you can watch the footage for yourself. Before the body cams were turned on, what you need to know is that there was a complaint received that an abandoned church, in an overgrown parcel of land not owned by any of these individuals, apparently had four marijuana plants growing there, among the thick brush. Crime of the century, right? The perpetrators must be one of the elderly African American residents nearby, of course. Instead of treating them as human beings, let’s accuse them first thing, then mistreat, harass, and retaliate against, them if they dare to get uppity, or not know their place.
Donnie and Ventriss Hairston were sitting on the front porch of their rural home, when two deputies approached and began to harass and intimidate them. Their landlord, who lives next door, joined them shortly afterwards and began to ask questions. When they asserted their opinions and rights, retaliation ensued. The landlord, Jason Tartt, was seized and arrested. The Hairstons were shoved into their home against their will. This is never before seen footage, outside of law enforcement of course. Take a look and form your own opinion about what happened.
On the morning of July 20, 2020, rookie Cleveland Police Officer Bailey Gannon shot his partner. Screaming as he fled in panic down a flight of stairs from a man who was neither chasing nor threatening him, Gannon pointed his gun over his head—in the opposite direction he was running— and began firing blindly behind him. One of his bullets hit his partner, whom he had just run right past.
That was the opening paragraph in a federal civil rights lawsuit just filed by Cleveland police officer, Jennifer Kilnapp, against her former partner, as well as the City of Cleveland. So this is a police shooting case – an excessive force case – from one cop against another cop. Can a police officer, who is unintentionally shot by another police officer, sue the government for a civil rights violation? Unfortunately, I can answer that one. But first, here’s a portion of the body cam footage.
The bullet that struck Officer Jennifer Kilnapp ended up lodging in her spine. Investigators almost immediately concluded that it was probably Officer Gannon who had shot his partner. Despite that knowledge, the Cleveland Division of Police and Cuyahoga County Prosecutor’s Office instead charged the suspect, Darryl Borden, with attempted murder, falsely claiming that he shot Kilnapp. These charges would be quietly dropped almost a year later. He still went to prison though. More on that in a minute.
Investigators determined that Officer Gannon lied about the shooting. Despite this, he received no discipline for lying, much less for shooting his partner. Unbelievably, three months after the shooting, the City rated Officer Gannon’s overall performance as “exceeding expectations,” referring to shooting his partner as merely a “minor setback.” This probably has nothing to do with the fact that Gannon’s father is a sergeant with the Cleveland Division of Police. Remember, Officer Gannon was a rookie cop. He entered field patrol as an officer in January of 2020. He shot his partner on July 20, 2020. Before the first year was even out, he was “exceeding expectations.”
In the early hours of July 20, 2020, Kilnapp and Gannon responded to a call on the east side of Cleveland alleging there was an emotionally disturbed man with a gun on the second floor of the boarding home he was staying in. There had been no report of the man shooting at anyone or otherwise being physically violent. Now this is according to the allegations in the lawsuit. The information released publicly at the time by the prosecutor’s office, was that the man had shot through the floor at the 911 caller prior to the law enforcement arrival. Perhaps that was false, which wouldn’t be surprising given everything else we now know about this story.
After learning the man, Darryl Borden, was in a second-floor bathroom, the two officers went upstairs to the hallway. Gannon then took the lead and stood offset from the bathroom door with Kilnapp in a position a few feet behind him. The staircase was between Gannon and Kilnapp. Gannon did not knock and announce their presence as police officers. Gannon did not ask Borden to come out of the bathroom. Still in the bathroom, Borden made no threatening statements to the officers, or in their presence. The lawsuit alleges that, rather than taking other steps, such as deescalation, withdrawing and establishing a perimeter, attempting surveillance of the bathroom, waiting for Borden to come out, or calling for backup or other assistance, Gannon instead decided to open the bathroom door.
According to the lawsuit’s allegations, when Gannon opened the door, Borden was standing there, apparently holding a firearm pointed downwards, at his side in one hand. Borden took no steps towards Gannon, nor made any other threatening gestures or statements. Gannon did not order Borden to drop his weapon. He didn’t order him to do anything. Instead, he panicked, spun back out of the doorway, out of sight of Borden. Borden still took no action.
Officer Gannon then ran away, towards the stairs. Borden didn’t follow him, or even flee, but rather stayed in the bathroom. Officer Kilnapp, Borden’s partner, was standing near the top of the stairs. Gannon bolted down the stairs, screaming as he fled. As he ran, Gannon pointed his gun over his head behind him, in the opposite direction as he was running, and began shooting blindly behind him. One of these bullets hit Kilnapp as she stood near the top of the stairs. Gannon’s body camera footage shows him running away while Kilnapp yells after him, “I’m shot. I’m shot. Don’t leave me.”
EMS rushed Officer Kilnapp to the hospital. Two weeks later, surgeons were able to remove the bullet fragment near her spine. Kilnapp filed the lawsuit on July 13, 2022, which discloses that Gannon never apologized to his partner for shooting her.
The investigation team created several diagrams showing the bullet trajectory that injured Kilnapp. This diagram is an overhead view of the staircase, hallway and bathroom. This shows that one of Gannon’s bullets, marked by a yellow line, was fired through the bathroom wall near the top of the staircase on a slight downward angle, meaning that he must have been holding his gun above his head when he fired, as he was running away.
This diagram shows Officer Kilnapp’s approximate vantage point when Gannon began shooting, as well as the path of Borden’s bullets when he reacted to Gannon opening fire. This shows the investigators’ conclusion that no bullets fired by Borden traveled in the direction of Officer Kilnapp.
Gannon initially claimed to investigators that when he opened the door, Borden was holding a gun in two hands and pointing it at the door. The lawsuit alleges that Gannon’s body cam footage shows his claim to be a lie, and that instead, it records Gannon admitting that he might have shot his partner. The investigation also revealed that Borden didn’t fire any shots until after Gannon began running down the staircase and shooting towards the bathroom.
Actually, if you look at a still-shot of the moment the body cam footage shows the bathroom door open, you can see that Borden’s left arm is pointed away from Gannon. Therefore it was clearly false to claim that both of Borden’s hands were pointed towards the door. To be honest though, I can’t make out what’s going on with the rest of Borden’s body.
Despite having evidence that it was Gannon who shot Kilnapp, a July 31, 2020 press release from the Cuyahoga County Prosecutor’s Office claimed that Borden “fired multiple shots at officers striking Officer Kilnapp.” Those charges would be dismissed around a year later.
So, what ended up happening to Mr. Borden? He was given a seven to ten year prison term by a Cuyahoga County judge for attempted felonious assault of a police officer and using a gun in the crime. In September of 2021, a federal judge tacked on another five years of incarceration for federal firearms related charges, as he was a felon in possession of a firearm in the first place.
Ironically, in March of 2021, the CDP suspended Officer Kilnapp for her involvement in the incident, on the grounds that she forgot to turn on her body camera before entering the house on the night of the shooting. To the contrary, the CDP took no disciplinary action against Gannon for shooting blindly through a wall while running away from a suspect and shooting his partner in the process.
Let’s take a look at the complaint’s legal theories. Here’s the full complaint:
The lawsuit alleges a direct excessive force Fourth Amendment violation by Officer Gannon, as well as supervisory and municipal violations by the City of Cleveland, alleging the existence of an unconstitutional policy of excessive force and training.
A similar incident actually happened in West Virginia back in 2009, and I was involved in some of the litigation. It was a tragic case. There was a vehicle pursuit that ended in multiple police officers surrounding the suspect’s vehicle, with the suspect still at the wheel. Several officers began firing at the driver. One of the bullets ended up hitting and killing a Charleston Police Department officer accidentally – or rather negligently. The officer’s widow sued, which was ultimately unsuccessful. Why?
“The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’…” “In order to be ‘seized’ within the meaning of the Fourth Amendment, one must have been the intended object of physical restraint by a state actor.”
The U.S. Supreme Court has held that, “‘the Fourth Amendment’s specific protection against unreasonable seizures of the person does not, by definition, extend to unintentionally injured ‘bystanders.” (Brower v. County of Inyo 1989; see also Rucker v. Hartford County 4th Cir. 1991). In the Charleston Police Department case, which was Jones v. City of Charleston, from 2012, the Court held that since the colleague police officer wasn’t intentionally shot by the police officer who had fired at a suspect, that no Fourth Amendment seizure could occur. In other words, even a negligent use of a firearm by a police officer can fall short of being legally considered excessive force, assuming the victim was unintentionally shot by the police officer.
As the Judge in that case wrote in the opinion:
Whether it was appropriate for Officer Burford to discharge his weapon without accounting for the location of a fellow officer, and whether his actions in doing so may have been negligent or even reckless are questions that are not before the court. The plaintiff has only alleged violations of the Fourth and Fourteenth Amendments. Because it is undisputed that Officer Burford did not intend to shoot Officer Jones, the Fourth Amendment is not implicated.
Now there could be other theories of potential liability, which is probably the best hope for Officer Kilnapp in this case, as the Judge alluded to in the Jones case. There could be state law claims based on a negligence or recklessness standard. However, it doesn’t appear that any were alleged in the lawsuit. There may be some meat to the argument that Officer Gannon’s actions that day were attributable to training and supervisory issues. It would be probably be a stretch to attribute it to the CPD’s overall use of force policy issues, since Gannon obviously wasn’t following any sane policy if he was running away, shooting blindly behind him through a solid wall.
Sadly, unless the case settles, I don’t see a realistic path to liability. But I hope I’m wrong, because there should be accountability for someone being wrongfully shot by another individual, police officer or not.