To determine whether a police officer applied excessive force in violation of the Fourth Amendment, we instead examine officers’ actions “in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Specifically, we examine “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.” Id. at 396, 109 S.Ct. 1865.
This footage shows a man being confronted, arrested and tased by police officers, after he pulled over on the side of the road to observe and record a traffic stop involving his son. Did he have a right to observe and record the traffic stop? Or can the police make him leave – or worse?
Kenneth Espinoza was driving to a shop to get his truck serviced. His son was following him separately in another vehicle. But then, his son was pulled over by a deputy with the Las Animas County Sheriff’s Office, for allegedly following too closely to the police car. His father then pulled over behind the deputy to observe the stop and wait for his son.
But that’s not the main story here. Rather, the story becomes the officers on the scene getting butthurt about the father observing and waiting behind the stop. In the bodycam video, Deputy Henry Trujillo is seen walking up to the father’s window. He tells Espinoza he needs to leave the scene, or else he’ll be charged. Espinoza refuses, but moments later can be seen then attempting to leave the scene, at which point the deputies prevent him from leaving, including by pointing weapons at him.
The footage then shows the father being tased multiple times, including while handcuffed.
Prosecutors have now dropped all charges against Espinoza. He had been charged with resisting arrest and assaulting a peace officer. Espinoza’s lawsuit also alleges that Deputy Trujillo shouldn’t have even been a deputy in the first place, due to his criminal history. In 1997 he was charged with felony menacing with a weapon, which was pled down to misdemeanor disorderly conduct. The following year, he was convicted of misdemeanor harassment. According to the father’s attorney, that conviction should have barred Trujillo from becoming certified as a police officer in Colorado. There were also multiple restraining orders filed against Trujillo, including a 2006 domestic abuse allegation, including a stalking and assault allegation from 2007. Apparently a protective order was entered against him.
But there’s more. Trujillo was apparently forced to resign from the sheriff’s office in 2009 due to a conviction that is now sealed. What was it? We don’t know. Because it’s sealed. But then, he was rehired in 2010. Then in 2018 he was promoted. Now he’s third in command. The Las Animas County Sheriff released a statement saying he has asked for help from an outside agency to review the actions of his deputies. He said that Deputy Trujillo is still on active duty.
What is the law here? Did the father have a right to wait and observe at his son’s traffic stop? The bodycam footage indicates that the father was not just waiting and observing the stop, but also recording the stop. That’s the most important fact here.
It just so happens that Colorado, which is in the 10th federal circuit, is where case law just dropped last year on this very issue. And it’s not good for the officers. The case is: Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022). Here’s the backstory:
Early in the morning on May 26, 2019, Abade Irizarry, a YouTube journalist and blogger, was filming a DUI traffic stop in Lakewood, Colorado. Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry’s camera and then drove his police cruiser at the two journalists.
Mr. Irizarry is a “Youtube journalist and blogger” who “regularly publishes stories about police brutality and conduct or misconduct.” On May 26, 2019, he and three other “YouTube journalists/bloggers” were filming a DUI traffic stop with their cell phones and cameras “for later broadcast, live-streaming, premiers, and archiving for their respective social medial channel[s].”
Here’s what the court held:
Filming the police performing their duties in public is protected activity. Police Officers in Colorado will be deprived of qualified immunity where they violate a citizen’s First Amendment right to film police performing their duties in public and take retaliatory actions against them. Officers standing in front of a camera, threatening violence, including aiming police cruisers at the individual, violate the First Amendment.
Sylvia Gonzalez became the first Hispanic councilwoman elected in her hometown of Castle Hills, Texas. She was elected on a platform of reform, based on her neighbors’ complaints about the current incompetent town leadership, including the city manager. Her first act as councilwoman was to present a citizens’ petition to remove the incompetent city manager. The entrenched swamp creatures had other plans, however. The city manager and other city officials conspired to have Sylvia arrested and charged for a bogus criminal violation.
The Institute for Justice took her case and filed a federal civil rights lawsuit for First Amendment Retaliation. You can learn much more information about the case on the IJ’s website and view the legal filings here.
“Castle Hills officials seem to believe that they are above the law because they are the law,” said Anya Bidwell, an attorney at the Institute for Justice, which represents Sylvia. “But criticism isn’t criminal, it is a constitutional right. And it is patently unconstitutional for an official to use the police to stifle speech and retaliate against political opponents.”
Last year I did a video on that case, which had been lost at the Fifth Circuit. Now the Institute for Justice is petitioning the U.S. Supreme Court to take the case.
Last week I had the wonderful opportunity to interview Anya Bidwell about the case. Like Patrick Jaicomo, who I got to interview about the James King case recently, Anya is one of the top civil rights attorneys in the country. She spent her childhood in Ukraine and Kyrgyzstan. At 16, she left her family behind and came to America on a university scholarship. Her upbringing motivated her to study law and become an advocate for a strong, independent judiciary.
If you want to help, please consider supporting the Institute for Justice, either by donating or by following and sharing their content.
A college student is walking down the sidewalk. Suddenly he is grabbed by multiple police officers wearing plain clothes. He has no idea they’re police officers. He thinks he’s getting mugged. Bystanders think he’s getting mugged. They call 911. It looks like a mugging. They take his wallet. They beat him. But they were cops. Not just any cops. They were federalized into a task force. You are an innocent victim. Can you sue them?
Qualified immunity is bad enough. But imagine an America where the federal government can deputize your local law enforcement and take them completely out of state and local control. Imagine they can violate your constitutional rights and there’s nothing you can do about it. Imagine they have more than just qualified immunity, but you basically can’t sue them at all. That’s what’s at issue in this important case, King v. Brownback, being appealed to the U.S. Supreme Court by the Institute for Justice – for a second time.
I recently had the opportunity to talk to Patrick Jaicomo, who has already argued this case once before the Supreme Court. He explains the backstory about what happened to James King, as well as the extraordinary lengths the government has gone to keep an innocent victim from ever seeing a jury over the violation of his constitutional rights.
This is an extremely important issue because we are seeing these federal task forces pop up all over the country. If the courts take the position that state and local officers are effectively federal officers, they basically can’t be sued. Courts will say, yeah he violated your constitutional rights, but there’s nothing you can do about it. So far, that’s what has happened to James King. He was completely innocent and local police officers beat the hell out of him. But he couldn’t sue them.
The Institute for Justice is asking the Supreme Court to fix this problem. Here’s some insight from one of the country’s top civil rights lawyers about this case and about what you can do to help. The King case is important because it’s undisputed that James was innocent; that his civil rights were violated. The only real issue is whether, as a citizen, there’s anything he can do about it. If a private citizen beat him, he could sue him and seek money damages before a jury. But here he can’t because he was beaten by his government.
If they were just regular state and local cops, it wouldn’t be a problem. He would beat qualified immunity. But here they have been hiding behind the protection of the federal government. Even though they were in fact state and local cops enforcing state and local laws. If this is allowed, I think we’ll see much more of this federal deputization, just to allow local police to violate the constitution without consequences. That can’t happen.
Do you remember this case – this video I posted about a few months back – about whether there’s a constitutional right to “livestream” encounters with police officers? Well there’s a huge update from that case that you’re not going to want to miss, or rather misunderstand. As I explained in the prior video, livestream video removes the ability of dishonest cops to destroy evidence and conceal their misconduct. That’s a good thing for us. But not surprisingly, they don’t like that. So, they attempted to find a way around it. “Officer safety.”
Here’s the original video:
Then you had this traffic stop involving Dijon Sharpe in Winterville, North Carolina, which then turned into a federal civil rights lawsuit. As discussed in the first video, that case was lost at the trial court level, and appeared to have backfired against the plaintiff, and in favor of government. Well now that has changed.
Last week the U.S. Fourth Circuit Court of Appeals overturned the trial court’s ruling and confirmed that we indeed have a First Amendment right to livestream police officers, including as an occupant of a vehicle during a traffic stop. But, as government likes to remind us, it’s not absolute. The government could still infringe on those rights under certain facts.
My favorite excerpts from the opinion:
Creating and disseminating information is protected speech under the First Amendment. Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011). “‘[A] major purpose of’ the First Amendment ‘was to protect the free discussion of governmental affairs.’” Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 755 (2011) (quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam)).
And other courts have routinely recognized these principles extend the First Amendment to cover recording—particularly when the information involves matters of public interest like police encounters. See, e.g., Ness v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021) (“The act of . . . recording videos [is] entitled to First Amendment protection because [it is] an important stage of the speech process that ends with the dissemination of information about a public controversy.”).
We agree. Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record. We thus hold that livestreaming a police traffic stop is speech protected by the First Amendment….
The Town purports to justify the policy based on officer safety. [Appellees’ Response Brief at 55.] According to Defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. [J.A. 9.] They support this claim by arguing, with help from amici, that violence against police officers has been increasing—including planned violence that uses new technologies. [See, e.g., Amicus Brief of the Southern States Police Benevolent Association at 9.] On Defendants’ view, banning livestreaming prevents attacks or related disruptions that threaten officer safety.
Despite the government’s claims, the Court found that the government had not established a sufficient specific officer safety issue due to traffic stop occupants engaged in this constitutionally protected activity. However, the Court left open the possibility that the government could do so.
Unfortunately, the opinion granted qualified immunity to the individual officers in the lawsuit, finding that since this was the first opinion confirming this specific constitutional right, that the right was not clearly established, and that therefore the officers were entitled to qualified immunity.
The important part is however, that from this point on, police officers are on notice, whether they choose to be ignorant or not, that livestreaming is constitutionally protected under the First Amendment. So in the end, the case did not actually backfire. It worked. The process worked. And although these individual officers will not be held accountable, this opinion will form the basis for others being held accountable in the future.
With qualified immunity, we have to be happy with each and every win that we get. Remember that when the government attempts to use “officer safety” to steal our freedoms, what is the proper response? That’s right: Freedom is Scary. They need to deal with it, or get another job.
Here’s video of parole officers caught on video stealing cash from inside a house they are otherwise lawfully searching as law enforcement officers. Is that a civil rights violation? Can they be sued? Could they get qualified immunity? Just in general, if police officers steal something from you, does that violate your federal constitutional rights?
On November 16, 2022 in Greece, New York, Shannon Carpenter and her boyfriend John Grandberry were getting ready for the day when there was a knock at the door shortly after 8 a.m. At the door were six state parole officers who announced they were there to search the house. Grandberry was on parole after serving prison time for a “criminal possession of a weapon” conviction. Four officers entered the house. Carpenter switched on a phone-activated web camera, aimed at the bed and closet. The camera recorded video of parole officers searching the house, eventually finding $6,000 in cash that was kept in a pair of pink Timberland boots. Here’s what happened.
Following the discovery of the items, around 9:30 a.m., one of the parole officers, identified by Carpenter as Doris Hernandez, appears to type a message on her phone and hand the phone to her colleague, an unidentified male officer. He glances at it, hands it back to her, and they whisper inaudibly. The male officer then peeps out the door before turning back to Hernandez. “We can share the money…,” he said. “You’re right,” Hernandez replied, pointing a finger gun at the other officer. “As long as there’s enough money to go around,” he said.
The incident has since become the basis for pending litigation brought by Carpenter and, according to the Greece Police Department, an investigation by New York State Police. Hernandez has since been suspended with pay, according to the state Department of Corrections and Community Supervision, which oversees the Parole Division. Thomas Mailey, a spokesperson for the agency, did not give a reason for Hernandez’s leave and did not respond to a question sent via email of whether the unidentified male officer had been suspended. Meanwhile, the search put Grandberry back behind bars. He is being held on violating parole for possessing a weapon, a scale, and drugs, according to the Monroe County Jail Census.
While this search and seizure must meet the reasonableness requirements of the Fourth Amendment, the Supreme Court has applied a balancing test to weigh the potential intrusion on a parolee’s privacy against the governmental interest at stake. See Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006); U.S. v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).
The Court has explained that parolees “do not enjoy ‘the absolute liberty to which every citizen is entitled, but only … conditional liberty properly dependent on observance of special [probation] restrictions.’ ” Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (citing Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).
Therefore, a parolee’s diminished expectation of privacy is justified by the state’s substantial interest in the supervision of its parolees and the prevention of recidivism. Samson, 547 U.S. at 850, 855, 126 S.Ct. 2193.
In 2019, in the case of Jessop v. Fresno, the U.S. Court of Appeals for the 9th Circuit Court decided that two police officers in Fresno, California, who allegedly stole more than $225,000 in assets while executing a search warrant, could not be sued over the incident. Though “the City Officers ought to have recognized that the alleged theft was morally wrong,” the unanimous 9th Circuit panel said, the officers “did not have clear notice that it violated the Fourth Amendment.”
We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not “be ‘clear to a reasonable officer.’”
The SCOTUS later declined to hear the case. As of now no Second Circuit opinions have cited Jessop.
The 4th Circuit in the 2004 case of Mom’s Inc. v. Willman was the only prior federal circuit to address the issue of whether it was a 4th Amendment violation for law enforcement to steal items otherwise lawfully confiscated during a search.
Here’s information regarding the lawsuit we just filed against West Virginia parole officers:
Huge news this week. Apparently the West Virginia legislature has initiated impeachment proceedings against the family court judge we sued in federal court. More than that, the basis for the impeachment is actually the judge’s responses to my questions to her during her deposition in the civil lawsuit.
A West Virginia Family Court Judge is the subject of an impeachment resolution to be introduced by the WV House of Delegates on Monday following the commission of a warrantless search which violated, among other things, Constitutional rights of West Virginia citizens….
A March 1, 2021, deposition saw Goldston declare, under oath, “I don’t believe I violated the canons of ethics.”
When asked specifically whether she regretted physically entering Gibson’s home, Goldston responded, “Do I think I did anything wrong? No.”
My last video showed the deputy I called “Officer Friendly Eyes” threatening a young guy who had been jumped by a bunch of local guys in a bar. His name is actually Tony Link. I knew that name sounded familiar to me. It was probably because he’s already been featured in one of my videos. Though he really only made a cameo appearance of sorts. Did you see the video where my client was shot through the closed front door of his home?
Also, here’s some new footage I was provided showing him at a traffic stop. He pulls a guy over for an expired inspection sticker. It does appear to be expired. But the registration has been renewed apparently – just no sticker yet. Once he discovers this, Link does not send the driver on his way. The reasonable suspicion for the stop has been cleared up. There’s no additional reasonable suspicion, so Friendly Eyes does what cops like to do and just makes it up.
Most people understand and accept that citizens have a constitutional right to record video of interactions with police officers, at this point – in general. Law enforcement has fought that every step of the way, of course. But is there a right to “livestream” encounters with police officers? More specifically, does a passenger of a vehicle detained at a traffic stop have a constitutional right to livestream the encounter from his cell phone?
Dijon Sharpe was a passenger in a car stopped for a traffic violation in Winterville, North Carolina on October 9, 2018. WPD officers Myers Helms and William Ellis performed the stop. Sharpe began live streaming the encounter with Facebook live. Helms told Sharpe that he could record the traffic stop from inside the car during the encounter but not livestream the traffic stop from inside the car during the traffic stop.
At the beginning of the stop, while the driver and Mr. Sharpe waited for the officers to approach the vehicle, the driver called a third party on his cell phone in order to have a witness to what was happening. Meanwhile, Sharpe began live-streaming what was happening on his Facebook account. The livestream shows that, during the stop, the driver continued his conversation with the third party on his cell phone during the entire course of the stop, including while speaking with the officers. The footage shows the interaction between Mr. Sharpe – the passenger – and Officer Helms. The video shows Officer Helms asking for Mr. Sharpe’s identification and then returning to the police vehicle. During this time, the driver continued his conversation with the third party over the cell phone, explaining that police had begun following the vehicle for some time before initiating the traffic stop. He expressed concern that he had been racially profiled.
As the driver was talking to the third party on his phone, Sharpe talks into his phone, reassuring viewers on Facebook live that he was fine, advocating for his practice of recording interactions with law enforcement. According to the lawsuit he would subsequently file, Sharpe began recording because he had been the victim of a brutal beating at the hands of police officers in the nearby town of Greenville ten months earlier, during a traffic stop. That experience prompted him to ensure any future interactions he had with law enforcement would be recorded for his own protection.
After emerging from the police vehicle, Officer Helms is seen on the video approaching the car window. He says, “What have we got? Facebook Live, cous?” As soon as Mr. Sharpe responds affirmatively, Officer Helms abruptly thrusts his arm through the passenger window and attempts to seize Mr. Sharpe’s cell phone, while pulling on Sharpe’s seatbelt and shirt. During this altercation, Officer Helms tells Sharpe: “We ain’t gonna do Facebook Live, because that’s an officer safety issue.”
Shortly afterwards, following the issuance of citations to the driver, Officer Ellis states: “Facebook Live . . . we’re not gonna have that, okay, because that lets everybody y’all follow on Facebook that we’re out here…” He says that recording is fine, but if you’re live, your phone is gonna be taken. Otherwise you’re going to jail. Sharpe then asked Ellis if that was a law. Ellis responded that it was a violation of the RDO statute, which is basically North Carolina’s obstruction statute. In the end, the phone was not seized. There was no citation or arrest pertaining to the livestreaming. However, the threat was made that next time, the phone would be seized and an arrest would be made if the phone was not forfeited.
In Mr. Sharpe’s video, look how the officer is standing there watching Sharp and the driver and treating them like they’re up to no good. Yet the reason for the stop was supposedly a basic traffic violation. The officer asks for Sharp’s ID because “he likes to know” who he’s out with. Is it any wonder that police officers get the reputation they have?
Based on the incident, as well as the threat to stop livestreaming in the future, under penalty of arrest, Sharpe sued the officers and the Town of Winterville under Section 1983 for violation of the First Amendment. The district court dismissed the claims against the individual officers on qualified immunity grounds, holding that it was not clearly established in October of 2018 that a passenger in a stopped vehicle had a constitutional right to record and live broadcast the interaction. Additionally, the Court held that live-streaming by a vehicle passenger poses a “unique” threat to officer safety that mere recording does not and is therefore not clearly protected under the First Amendment.
Eleven months later, the district court dismissed the claim against the Town of Winterville on the grounds that Mr. Sharpe had no constitutional right to live broadcast at all, and that even if he did, the town’s policy of arresting traffic stop passengers for live-streaming passes constitutional review under intermediate scrutiny. The district court held that “[r]ecording a traffic stop for publication after the traffic stop versus livestreaming an ongoing traffic stop from inside the stopped car during the traffic stop are significantly different.”
“[L]ivestreaming the interaction from inside the stopped car during the traffic stop … allows … those watching, to know the location of the interaction, to comment on and discuss in real-time the interaction, and to provide the perspective from inside the stopped car,” JA81. “The perspective from inside the stopped car, for example, would allow a viewer to see weapons from inside the stopped car that an officer might not be able to see and thereby embolden a coordinated attack on the police.” Thus the Court concluded that Mr. Sharpe had no First Amendment right to live-stream.
Mr. Sharpe appealed to the Fourth Circuit. It drew significant attention from civil liberties and press advocates. Seven amicus briefs were filed in support of his claims. Here’s Sharpe’s opening brief:
Oral arguments were held last month, which involved a heated discussion between one of the federal judges on the panel and the lawyer representing Mr. Sharpe. During the oral arguments, the federal judge seemed highly concerned about the rights of police officers, as opposed to the rights of an innocent citizen being detained as a passenger in a traffic stop. Listen for yourself.
The Fourth Amendment grants no rights to officers. “The right of the PEOPLE to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” Its purpose is to guarantee individual rights against the power of the government.
This flies in the face of actual Fourth Amendment law. They are using amorphous and general concerns over “officer safety” that are not particular to the individual they are seeking to restrict. In other words, the officers here, and those advocating for them to do so, want the officers to have the power to stop livestreaming, based only on obscure general concerns over officer safety. Theoretically, if some bad guy was watching the livestream he could find the location while the stop is in progress and theoretically harm the officers or cause some other safety issue.
They’re not saying that this particular individual should not livestream under these circumstances, because that person is a particular safety threat and those facts can be demonstrated in court or to a judge. They’re using blanket reasons. Again, that flies in the face of existing Fourth Amendment law, which requires particularity to the individual for things like frisks and searches. Blanket reasons never go well with constitutional law. Usually we’re told that law enforcement actions were justified based on the “totality of the circumstances.” Well now, because they hate video footage, we no longer look at the totality of the circumstances, but rather, at the vague concept that police officers are afraid of absolutely everything and everyone.
The fact is, freedom is scary. They need to deal with it, or get another job. We cannot and must not appease that fear.
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.