Is There a Right to Flash Lights to Warn Motorists of a Speed Trap? – Can They Stop You?

Is there a constitutionally protected right to flash your lights at oncoming traffic, in order to warn them of an approaching speed trap? There’s remarkably few rulings out there on this issue, and a quick search reveals very little guidance from the judiciary and the legal community. But that doesn’t mean it isn’t a common occurrence. I hear about it from time-to-time and there’s a few instances out there if it being captured on video. Perhaps my favorite is an old video from the guy they called the Godfather of First Amendment auditors, Jeff Grey.

This occurred in Florida, near Jacksonville, on I-10, and involves a classic Florida speed trap, full of unnecessary government employees who have nothing else better to do than to harass people and flex their egos and authority. Jeff sets the trap with the bait. And the cops can’t resist it. 

Here’s the original video:

What we have here is an acknowledgment that Jeff was subjected to a traffic stop as a sole result of his flashing his lights. There’s no allegation of speeding, seat belt, or other pretext for the stop. Remember: every traffic stop is already an investigative detention, by definition, and therefore reasonable suspicion must be present to justify the invasion of Fourth Amendment protections. Now, reasonable suspicion is usually pretty easy for even the dumbest of police officers to articulate, which encourages them to lie. They just have to say they saw you violate some traffic law. Here, had they known ahead of time who they were dealing with, they probably would have made something else up. But the first thing that popped out was feigned concern about protecting or helping Jeff. They know that’s a lie. Jeff knows that’s a lie. They know that Jeff knows that’s a lie.

If this were true, there would be no Fourth Amendment justification to continue to detain Jeff. However, the footage clearly shows that they indeed continue to detain him. What likely happens is that the officers now go back to their police cruisers, and discuss the situation. Now they’re aware that Jeff was filming them. For police officers who were already willing to lie about the reason they pulled Jeff over, this could be a problem. As you’ll see, their strategy is to stop the recording. But Jeff refuses, calling their bluff.

Even now in 2022, there’s still no clear federal law on the issue on whether there’s a federally protected First Amended right to warn oncoming traffic about a speed trap. But there’s a wealth of clearly established law on the right not to be detained by the police in the absence of reasonable suspicion. If the officers in Jeff’s video had been honest about the reason they were pulling Jeff over, and if they were able to point to a Florida statute he was violating, they may have been justified in their actions, or at the very least entitled to qualified immunity. However, they basically admitted that they pulled him over in retaliation for warning other motorists, without bothering even to lie about a pretextual reason for doing so, thereafter repeatedly trying to intimidate him into turning off his camera.

There are no Supreme Court cases on this. There are no federal appellate cases, to my knowledge. There are only a couple of U.S. District Court opinions, and a couple of state circuit court opinions. There was a 2019 memorandum opinion from the U.S. District Court for the Western District of Wisconsin holding that a policy and practice of stopping, detaining, and citing drivers who flash their headlights to warn oncoming drivers of a speed trap violates his right to free speech under the First Amendment. This was Obriecht v. Splinter.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” It protects conduct, symbols, and non-verbal communication that express or convey a particularized message reasonably understood by viewers. Texas v. Johnson, 491 U.S. 397, 404-06 (1989). Flashing headlights could easily be placed into the category of expressive conduct. In the Obriecht v. Splinter case, this point was conceded by the state. However, even expressive conduct may be regulate by the government. For example, speech that incites or produces “imminent lawless action,” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), or is integral to criminal conduct, such as fighting words, threats, and solicitations, United States v. White, 610 F.3d 956, 960 (7th Cir. 2010), is not protected by the First Amendment. 

Another similar case from the U.S. District Court for the Eastern District of Missouri held in 2014 that this conduct was entitled to protection under the First Amendment. (Elli v. City of Ellisville, Mo). At least two state circuit courts have found that drivers have a constitutional right to flash their headlights. (State of Oregon v. Hill (2014); State v. Walker (Tenn. 2003)).

The problem with the lack of precedent on this issue leads to a big problem for potential plaintiffs: qualified immunity. The standard for qualified immunity requires establishing that the police officer violated clearly established law. Where there is almost no established case law, that’s going to be a tough task. 

However, as we saw from Jeff’s video, if police are going to pull people over for flashing their lights at other motorists, they need to be honest about what they’re doing, and identify a state or local statute they allege is violated by the relevant conduct. Then, the victim of that stop can mount a First Amendment challenge. This is how the law will become clearly established. At the same time, if they’re not being honest, only video footage is going to protect the motorist from pre-textual lies, which if documented, will establish liability for a Fourth Amendment violation, with no good argument for qualified immunity. 

Kentucky Officers Denied Qualified Immunity and Headed to Trial

Big update in Chris Wiest’s case in Kentucky, where several Kentucky police officers are being held accountable for their misconduct. Tonight he joined me for a live video, and we discussed developments in the case, at length. This is the case where the officers denied (under oath) striking the guy they were arresting, later finding out that video footage showed otherwise. This led to Officer Thomas Czartorski later being charged with perjury.

Prior video:

Update video with the footage:

Here’s the recent court order in the case, discussed in the videos:

Video Shows Teen Arrested Waiting For His Dad – Court Denies Qualified Immunity

In 2019, on a rainy April night in Sterling Heights, Michigan, 18- year-old Logan Davis had just gotten off work at a sandwich shop and was waiting under a nearby awning for his dad to pick him up and drive him home. A few minutes later, Davis ended up hand-cuffed in the back of a Sterling Heights police cruiser, having been forcibly taken to the ground and arrested for loitering. Davis subsequently sued the City of Sterling Heights and Officer Jeremy Walleman for unlawful arrest in federal court.

Recently, the federal court issued a memorandum opinion denying Officer Walleman qualified immunity. So we have both a video of what happened, and the subsequent opinion from a federal court after examining the video and sworn deposition testimony.

Here’s the Video:

And here’s the Order:

As I’ve explained many times before, you have stronger Fourth Amendment protections as a pedestrian, as opposed to an occupant of a vehicle. A warrantless arrest, like the one at issue here, is reasonable under the Fourth Amendment if supported by “probable cause to believe that a criminal offense has been or is being committed.” An officer has probable cause “only when he discovers reasonably reliable information” that that an individual has committed or is committing a crime. 

Where an officer lacks probable cause but possesses a reasonable and articulable suspicion that a person has been involved in criminal activity, he or she may conduct an investigative “Terry” stop and briefly detain that person to investigate the circumstances. During a Terry stop, an officer may request that a suspect identify him or herself, and the suspect does not have a Fourth Amendment right to refuse the request. Additionally, a state may criminalize refusal to provide identification during a Terry stop. 

Section 35-17 of the Sterling Heights’ City Code of Ordinances prohibits loitering and provides that prior to making an arrest for loitering, the officer must provide the individual with an opportunity to dispel any concern or alarm – which can be accomplished by the individual identifying themselves and providing a reason for their presence. 

Section 35-19(B)(4) of the City Code provides that it’s a violation to fail to produce identification upon the request of an officer who is investigating possible unlawful conduct. 

If Officer Walleman had reasonable suspicion to investigate Davis for loitering under § 35-17, he could lawfully order Davis to produce identification then, under § 35-19(B)(4), arrest him if he refused. To conduct an investigatory stop, reasonable suspicion requires that an officer have more than a hunch—they must possess a particularized and objective basis for suspecting the individual of criminal activity. Such a determination of probable cause or reasonable suspicion must be based on the totality of circumstances, considering “both the inculpatory and exculpatory evidence”— that is, an officer “cannot simply turn a blind eye toward evidence favorable to the accused,” nor “ignore information which becomes available in the course of routine investigations.” 

In denying qualified immunity to Officer Walleman, the federal court held that, even if reasonable suspicion to investigate Davis for loitering existed early in the encounter—and it is not clear that it did—any reasonable suspicion, even arguable reasonable suspicion, was dispelled when Davis explained to Officer Walleman why he was standing where he was and showed Officer Walleman his Firehouse Subs shirt and badge. After that point, a jury could conclude, no reasonable officer would believe they had a justified suspicion of unlawful loitering, and without such a basis, Officer Walleman no longer had the legal authority to demand Davis’ identification and arrest him if he refused. 

The Court pointed out that Davis was standing near Firehouse Subs, wearing a Firehouse Subs shirt, which he showed to the officer, and that more specifically, he was standing under the Dickey’s BBQ doors because there was an awning – and it was raining. He is observed on the video not acting suspiciously – not peering in windows, but just waiting.

It always comes down to this though: that police officers can’t seem to do anything, or talk to anybody, without forcibly demanding an ID from people. If people refuse, it becomes time to teach a lesson about the authority of government – a power trip. However, two can play at that game. Now a jury gets to decide whether government did have that authority. Perhaps it would be easier to just be a polite public servant and use common sense. 

Cops at Your Door: What They Don’t Want You to Know

You may have seen the video I posted last week of police harassing private citizens on their own front porch here in West Virginia. This sort of behavior happens all the time: cops show up to a private residence, they knock on the door. What are your rights in that situation? What rights to the police have to do what they’re doing? Let’s make some things clear. 

For instance, in the McDowell County video I just posted, the officer can be heard multiple times in the body cam footage, claiming that he had reasonable suspicion to justify his behavior, based on the fact that he found what he believed to be four marijuana plants near the home. Based on that, the officer demanded the name and birthdate of the property owner, who was standing on the porch. 

Can police officers, assuming they have reasonable suspicion to believe that a crime was committed, and the property owner on the front porch may have committed it, demand identification under penalty of arrest for obstruction for noncompliance? That’s what ended up happening, of course, as you’ll see if you watch the footage of what happened to Jason Tartt. 

The too-long-didn’t-watch answer is no. If police officers are on your private property, that changes things. Cops are trained on the requirement for reasonable suspicion – to develop some reasonable suspicion they can articulate, even if total B.S., and then that entitles them to forcibly demand identification from whomever they deem a suspect. That is generally how things work in public places – but not on private property, especially a home. 

Let’s look at this scenario of police on your front porch and make sure we’re all on the same page about what the law is, and what the law is not, for both police and the occupants of private property. 

According to the 1980 Supreme Court opinion in Payton v. New York, in order to legally arrest someone in a home, rather than in a public place, absent consent or exigent circumstances, police officers must have a warrant. 

According to the 1984 Supreme Court opinion in Oliver v. United States, the heightened Fourth Amendment protections of the home extend beyond just the interior of the home itself into what’s called the “curtilage” of the home, which is the land immediately surrounding and associated with the home. Why? Because according to the Supreme Court, the curtilage is considered part of the home itself for Fourth Amendment purposes. The Fourth Circuit, where the porch video occurred, just in 2015 issued an opinion holding that a warrantless search of curtilage is presumed to be unreasonable. (Covey v. Assessor of Ohio County).

In the 2013 Supreme Court opinion of Florida v. Jardines, the Court held that a search undoubtedly occurs when the government, without a warrant, obtains information by physically intruding within the curtilage of a house, which in that actual case involved a home’s front porch. The Court cautioned that a search occurs unless a homeowner has explicitly or implicitly sanctioned the government’s physical intrusion into the constitutionally protected area, i.e., the yard and/or porch of the home.

Some of these broad Supreme Court holdings have been interpreted in slightly different ways in different federal appellate circuits. The porch video from last week was from West Virginia, which is in the Fourth Circuit.

The Fourth Circuit made clear as early as 2001 that police officers will be denied qualified immunity for failing to comprehend that they have no right to enter a home’s curtilage to make an investigation based on reasonable suspicion. (Rogers v. Pendleton). They have no “right.” All they can do is engage in what’s called a “knock and talk.” This is the scenario in the large majority of these front door encounters with police. 

That’s right… Police officers in the Fourth Circuit were cautioned in 2001 that they would be denied qualified immunity for ignorantly believing the existence of reasonable suspicion allowed the to enter and remain in a homeowner’s curtilage without consent of the homeowner. Yet it seems that it’s still being taught to officers, and being used to arrest people. 

Under the “knock and talk” exception to the warrant requirement, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” This means there is an “implicit license . . . to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” An officer may also bypass the front door (or another entry point usually used by visitors) when circumstances reasonably indicate that the officer might find the homeowner elsewhere on the property. “Critically, however, the right to knock and talk does not entail a right to conduct a general investigation of the home’s curtilage.”

The obvious difference between a police officer and a young girl selling girl scout cookies, is that many, if not most, homeowners have no idea whether they have any right to refuse to answer the door, or to ask the person to leave. Police like it this way. They don’t inform people of these rights, and the courts have ruled that they have no legal obligation to do so. You have to inform yourself and spread the word. 

Police officers, and anyone else really, have an implied license to come onto your property and knock on your door. This implied license can be revoked. Homeowners can prevent ordinary citizens and police officers alike from conducting a knock and talk by revoking their implied license to be there. However, few citizens know that an implied license exists. Generally, the courts require that a homeowner do so by clear demonstrations or express orders. For instance, asking someone to leave or refusing to answer questions. 

What about no trespassing signs? This is a topic of dispute, and can vary by federal circuit. The Tenth Circuit had a particularly bad opinion on this in the Carloss case, which resulted in one law professor creating “LAWn” signs providing notice to the police that their implied license to perform a knock and talk at the address is revoked. No trespassing can be ambiguous. One could certainly be more specific and avoid the grey area. Of course, another option is verbally telling the police that they’re not welcome and ask them to leave. That’s hard for a lot of people to do. Police know this and use it against you. 

Back to the McDowell County porch case, the officer thought he was smart saying he had reasonable suspicion, and now you have to provide identification or else get arrested for obstruction. But his own footage dooms his defense. He’s well inside private property. The homeowners have clearly expressed that they were afraid of him, asking for his name, which he refused. He arrested their landlord by physically seizing him on the front porch, well within the home’s curtilage, without probable cause and a warrant. The video disproves any later claim of exigent circumstances. More than that – I haven’t shown this footage yet – but he then radioes his superiors on the drive to jail – telling them repeatedly what he had done. There is obviously either a policy of civil rights violations in this department, or systematic ignorance, or both. 

Ring Doorbell Saves the Day Again: Eviction at the Wrong House

It’s a relaxing summer afternoon. You’re visiting family about 15 minutes away from your home. You locked your doors before you left, like you always do. Your three dogs are safely secured inside your house. All of a sudden you get a notification from your Ring doorbell security camera, at your front door. You see two police officers and some other stranger standing on your doorstep. They just busted the lock off your front door. They’re in the process of entering your home. You have three dogs in the house and you immediately have awful thoughts racing through your head about police officers and dogs. Not knowing what else to do, and having no idea what’s happening, you confront them using the doorbell’s audio speaker. They tell you that they’re there to evict you. You have no idea what they’re talking about.

This was the experience of Jennifer Michele of Land O’Lakes, Florida, in Pasco County. It was a complete surprise to her, given the fact that she had no knowledge of any eviction proceedings against her. She had been living there for 13 years. She posted this footage to Tik Tok, and it went viral. Here it is…

The Maxim that “a man’s house is his castle” is older than our Republic, and deeply rooted in Anglo-American jurisprudence. As scholars have observed, it protects all levels of society, down to the “poorest man living in his cottage.” It formed much of the basis of the Fourth Amendment itself. While 4th Amendment protections have eroded over time almost everywhere else – cars, schools, sidewalks, airports, and so on, it has retained its original strength in the home. The home still receives the greatest protection under the Constitution. It’s our castle. This is expanding in many states, with “castle doctrine” and “stand your ground” laws, and other self defense protections for law abiding citizens. 

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. The only exceptions are consent and exigent circumstances, which are not at issue here. 

Thus where law enforcement busts your lock off your front door, without a warrant, or in this case a valid eviction order, they violated your Fourth Amendment rights, by default application of the law. But are there any consequences? This is where qualified immunity comes in. 

There are two scenarios: 

1) Where the warrant or eviction order lists the homeowner’s correct address, but which is actually the wrong address. So on its face, there is a warrant for that address, but it was supposed to be a different address; or 2) where the warrant or eviction order lists an entirely different address and they just showed up and executed it at the wrong house. This could be equally applicable to arrest warrants where the wrong John Smith is arrested. Is the mistake in the warrant, or in the execution of the warrant? If the mistake is in the warrant, then how did it get there, and who was responsible? These questions are all highly important to the qualified immunity issue. The unfortunate reality is that qualified immunity is typically granted in these sorts of mistaken identity or address cases. Not always, but very frequently.

One must also remember that this is Pasco County, the same county as the video I recently posted showing the SWAT style entry into a woman’s home over a building permit inspection. That brings up what is most likely a better legal argument here, which is the existence of a policy of constitutional misconduct. This is likely not the first issue. Why is Pasco County law enforcement showing up in tactical gear, with very little information or communication, for an eviction? There may be a Monell Claim here, which would be important because a county or municipality cannot assert qualified immunity as a defense to Monell liability for a policy of constitutional violations.

The consequence of out of control government here was relatively harmless in the end. But often it’s not. Similar mistakes are often made, with tragic results. When law enforcement forcibly enters someone’s home, they do so with firearms, which often are used against occupants – either human or canine. Because, they have to get home safe at night. Nobody else does, necessarily, but they must, at all costs. Protect and serve. When you have the peace-of-mind of qualified immunity, you can just act first and sort out the damage later. Or, as we used to say in football, “let the paramedics sort them out.” 

Fifth Circuit Gives Qualified Immunity to City Officials After Free Speech Retaliation Arrest of Councilwoman

On July 29, the U.S. Court of Appeals for the Fifth Circuit released a published opinion in the case of Sylvia Gonzalez v. Edward Trevino, Mayor of Castle Hills that now appears to be headed to the U.S. Supreme Court. This is an important First Amendment Retaliation case where qualified immunity is the key issue. Qualified immunity is the most important issue in the fight for the civil rights of the American people. It must be defeated, which is why you need to learn about cases like this, which the media will never tell you about.

Here’s the opinion:

The case is being litigated by the Institute for Justice. They filed suit for the plaintiff, Sylvia Gonzalez, a retired resident of Castle Hills, Texas, who decided to run for city council, and became the first Hispanic councilwoman in Castle Hills history. I spoke with the Institute of Justice attorneys litigating this case on the same day the opinion was released, and they seemed very optimistic about the future of this case at the Supreme Court. 

At Ms. Gonzalez’s first council meeting, she accidentally took home with her petition which had been debated at the meeting. It was laying in her stack of paperwork. It was later discovered that the petition was in her possession, which as it turns out, was technically a misdemeanor crime. The petition sought to remove the city manager. This town has fewer than 5,000 residents. During her campaign, Gonzalez learned that many residents were unhappy with the performance of the city manager. As her first act in office, she submitted this petition to the council. It was entirely unintentional that she ended up taking the petition home with her. She was supporting this petition and had no reason to suppress it or hide it. It was purely unintentional, and it was her first meeting as a councilwoman. 

Well, the city leadership was unhappy with Sylvia Gonzalez. After the mistake was discovered, the mayor, Edward Trevino, requested that a Sergeant in the Castle Hills Police Department file a criminal complaint alleging that Gonzalez took the petition without consent. The first officer to investigate, a Sergeant, determined that no crime had been committed. Well, that was unacceptable to the mayor and the chief, so they turned to a so-called “special detective.” The detective decided that Sylvia committed a violation of Texas Penal Code §§ 37.10(a)(3) and (c)(1), which provide that “[a] person commits an offense if he . . . intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” 

Special Detective Alex Wright obtained a warrant, and instead of using the typical procedure of obtaining a summons, rather than a warrant, for a nonviolent crime, as well as going through the district attorney’s office, the detective instead obtained a warrant and hand-delivered it to the magistrate himself. The use of this process prevented Sylvia from using the satellite booking function of the Bexar County Jail system, making her unable to avoid spending time in jail when arrested. 

There is clear evidence here that this was done with a retaliatory motive, in response to Sylvia Gonzalez’s support of the petition to remove the city manager and disturb their swamp status quo. Sylvia’s arrest enabled the city leadership to remove her from office, as well as to intimidate, punish, and silence her. There was plenty evidence of this. In fact, Sylvia was charged under a statute that has never before or since been used to arrest someone in her position. A “review of the misdemeanor and felony data from Bexar County over the past decade makes it clear that the misdemeanor tampering statute has never been used in Bexar County to criminally charge someone for trying to steal a nonbinding or expressive document.” Indeed, most indictments under the statute involved fake government IDs, such as driver’s licenses, social security numbers, and green cards. 

But here was the big problem: technically there was probable cause to charge her under the statute that was charged. So the question is, can law enforcement arrest and prosecute Sylvia in retaliation for her protected free speech, so long as probable cause exists to do so? In other words, this is like a mayor ordering the arrest of a political opponent for some minor crime like jaywalking, where technically the crime was committed, but where there never would have been any prosecution at all, but for retaliation against free speech. This is the dispute, and there is a split in the federal circuits. 

In the 2018 U.S. Supreme Court case of Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018), the Court held that a municipality could be liable under a Monell Claim where its leadership decides to selectively prosecute a particular person in retaliation for their speech. The federal circuits have differed on how broadly to interpret this holding. The Fifth Circuit, in last week’s opinion, has chosen a narrow interpretation. 

The jaywalking example is the ideal example, which was discussed in the opinion:

“If an individual who has been vocally complaining about police conduct is arrested for jaywalking,” the claim should not be dismissed despite the existence of probable cause because “[i]n such a case, . . . probable cause does little to prove or disprove the causal connection between animus and injury.” 

 The Court “conclude[d] that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 

Basically, their conclusion was that since no prior council-person had been prosecuted by the city for taking a petition home with them, then there was no evidence to support a theory of retaliatory selective prosecution. This is of course, absurd. This is like saying that law enforcement may engage in retaliatory prosecutions, so long as they choose a creative statute that has never been used before against the same type of defendant. 

The fact is, that Sylvia Gonzalez engaged in highly protected First Amendment conduct, and that as a result of that conduct, a conspiracy of government officials took a material adverse action against her for purposes of retaliation. This is already prohibited under federal law. As the dissenting federal judge noted in his dissent, the police officers and city leadership have been on notice of a string of legal authority, dating all the way back to 1689, that it’s unconstitutional to jail people in response to their petitioning the government.

Hopefully the U.S. Supreme Court will overturn this. The Institute of Justice is doing some great work, not just in this case, but in many different cases across the country. They are likely even jumping into one of my cases, so stay tuned for that. Check out the youtube video the Institute did on the Gonzalez case, back when they first started. There’s a donation link. They need donations now, more than ever. Please donate, if you want to help fund the fight against qualified immunity and government corruption. Here’s the Institute’s video on the case, with donation link:

Here’s the district court order, which originally denied qualified immunity, and which the defendants appealed to the Fifth Circuit:

And here’s the IJ’s response brief to the motion asserting qualified immunity to the district court, which is fantastic:

Cops Arrest Homeless Vet for Being in a Median and do This to His Dog, Sunshine

Just released, body cam footage shows Gastonia, North Carolina police arresting a homeless veteran, suspected of panhandling in a median, and tasing his dog, named Sunshine. Unfortunately, Sunshine didn’t make it. This is brand new footage, ordered released by a judge, against the will of Gastonia law enforcement, who fought the release of the footage, supposedly to guarantee the homeless vet, Joshua Rohrer, a “fair trial.” Yeah, right. If law enforcement doesn’t want you to see it, then you probably need to see it. 

Here’s the raw footage:

In the applicable jurisdiction – the Fourth Circuit – these cases seem to come out of North Carolina. There is a very recent published opinion out of the Fourth Circuit – Ray v. Roane – which deprived police officers of qualified immunity in a civil lawsuit for shooting someone’s dog. Here’s a video I just did a few weeks back in June on another similar video:

As an initial matter, it is well-settled that privately owned dogs are “effects” under the Fourth Amendment, and that the shooting and killing of such a dog constitutes a “seizure.” So it’s a different legal standard that standard police shooting cases. It’s an overall reasonableness standard, recognizing that police can shoot dogs where officer safety justifies the decision. 

The question is whether, at the time the officer shot the dog, he held a reasonable belief that the dog posed a threat to himself or others. If the facts are sufficient to show that such a belief was unreasonable, then the law is clearly established in the Fourth Circuit that shooting a dog under those circumstances would constitute an unreasonable seizure of Mr. Rohrer’s property under the Fourth Amendment. That’s not a great way of looking at the value of our dogs, but that’s the actual legal analysis.

Here, the tasing officer, Maurice Taylor, claims that the dog “bit his boot.” Although I snipped the footage for Youtube reasons, you can click the link and watch the entire raw footage on Mr. Rohrer’s channel. You can see that the tasering took place well after the dog allegedly bit the boot. Immediately after the officer claims the dog bit the boot, you can see the dog wagging its tail. I have my doubts. Perhaps what really happened is the dog came up to him, wagging his tail, and Officer Friendly kicked her in the face. They don’t call them “jack booted thugs” for nothing. 

That reminds me of the officer from yesterday’s video, where the guy he beat up actually attacked his fists. At the point where the taser is deployed, the arguable officer safety concern actually involves his partner. You can see the dog on video at this point, and the dog clearly doesn’t make any move to attack the partner. 

All-in-all, the response to this itself speaks of the lack of reasonableness of the decision under the circumstances. And how many cops were present towards the end of the footage. Fifteen? Twenty? Who is paying these people, and where are they now? 

Breaking: Federal Court Denies Judicial Immunity in Family Court Judge Lawsuit

Breaking news today in the federal civil rights lawsuit against Family Court Judge Louise E. Goldston, which alleges constitutional violations for her search of my client’s house in March of 2020…. Just today, the Federal Court issued an order denying the judge’s claim of judicial immunity, ordering that the jury trial is on for Tuesday. As the order acknowledged, the West Virginia Supreme Court already found Judge Goldston’s conduct to be in violation of the law:

Thereafter the Supreme Court of Appeals concluded Judge Goldston exceeded her judicial powers in searching Mr. Gibson’s residence in violation of the Code of Judicial Conduct. See In re Goldston, 246 W. Va. 61, 866 S.E.2d 126. A censure and fine resulted. Id.

The opinion went on to address Judge Goldston’s arguments that she was merely holding a Family Court hearing inside Mr. Gibson’s home, and that she should be immune from liability. The Court pointed out the obvious flaws in her argument, stating:

The crux of Judge Goldston’s argument is that her actions were taken during the course of adjudicating a Family Court dispute. She contends that, assuming she exceeded her authority, her actions were judicial in nature and hence subject to judicial immunity.

As noted, the Court examines the nature of the act and not the actor. The nature of the act was a warrantless search of Mr. Gibson’s residence and a warrantless seizure of his property. The twofold inquiry is (1) whether a search of a residence was an act normally performed by a judge, and (2) the expectations of the parties, namely, whether Mr. Gibson was dealing with Judge Goldston in her judicial capacity. Respecting the first prong, does a judge normally execute a search warrant or personally search a residence? To quote Judge Posner, “[t]o ask the question is pretty much to answer it.” Nelson v. Streeter, 16 F.3d 145, 148 (7th Cir. 1994). While “the issuance of a search warrant is unquestionably a judicial act,” see Burns v. Reed, 500 U.S. 478, 492 (1991), the execution of a search and seizure is not….

Judge Goldston was not engaged in an act normally performed by a judge.

Respecting the second prong, Mr. Gibson doubtless dealt with Judge Goldston in her judicial capacity at the outset of the March 4 contempt hearing. The situation changed markedly, however, once the field trip began. Once Judge Goldston invited herself to the residence, began her warrantless search, and then seized private property, the die was cast. Nevertheless, Judge Goldston notes (1) a bailiff was in attendance, (2) the search was recorded much like a judicial proceeding, and (3) Mr. Gibson and his ex-wife made motions during the process. She asserts all of this demonstrates the parties dealt with her as a judge.

The contentions do not withstand minimal scrutiny. Mr. Gibson’s motion for disqualification arose out of Judge Goldston acting as a witness rather than a judge. Further, the recording of the search — which Judge Goldston attempted to halt — is in no way equivalent factually or legally to an electronically transcribed or recorded judicial proceeding. Judge Goldston recognized as much in her deposition. Judge Goldston has thus failed to demonstrate either of the two required prongs.

Here’s the full memorandum opinion and order:

The Court also ruled that the Raleigh County Commission, i.e., the Raleigh County Sheriff’s Office, is also going to trial on the issue of whether they adopted and maintained a policy of illegal Family Court judicial searches of litigants’ homes, which ultimately led to the search of Mr. Gibson’s home on March 4, 2020. The Court correctly noted that the deposition testimony of the two bailiffs indicates the existence of such a policy:

For instance, according to the record, Bailiff McPeake sought out a Raleigh County supervisor prior to his first home search as a bailiff in Raleigh County Family Court, seeking assurance that he was within department policy prior to doing so. Bailiff McPeake was told by Sergeant Aaron Lilly that he was authorized to participate and that they “do that from time to time.” Even after the March 4, 2020 event, Bailiff McPeake testified that there has been no policy change as to family court judges searching parties’ homes. Bailiff McPeake, who continues to serve as bailiff for Judge Goldston, has not been instructed by his supervisor, Lieutenant Dave Stafford, to refrain from similar conduct in the future.

Additionally, Deputy Stump, who established during his deposition that he was a supervisor for the Raleigh County Commission, testified that he had visited the homes of litigants with Judge Goldston “numerous times.” Deputy Stump explained that the sheriff’s department policy for bailiffs is whatever policy a judge told him — “no questions asked.” He noted that, even after the March 4, 2020 incident, there has been no policy change within the department about bailiffs going to the homes of litigants. Indeed, Deputy Stump asserts that, “if Judge Goldston told me today to go to the house, I’d be the first one there.”

The record gives rise to a genuine issue of material fact respecting whether the Raleigh County Commission had the required municipal policy of allowing officers to participate in home searches with family court judges of the type here challenged.

Shortly after the issuance of the order, Judge Goldston filed a notice of appeal, as well as a motion for stay of the trial, pending her appeal on the denial of judicial immunity. I’m currently researching the legal issues surrounding her attempt to stop the trial and immediately appeal to the Fourth Circuit. I will be filing a formal response with the Court tomorrow morning, and will provide an update on whether the trial is on as soon as a decision is made.

Man Shot by Police Today While Onlookers Film in Beckley, WV

A friend of the eyewitness to a crazy police shooting that happened today in Beckley, West Virginia, sent me the footage captured via smartphone, while bystanders stuck in traffic watched it go down right in front of them. I already posted it on my twitter page, where it’s spreading quickly and obviously disturbing most people. I didn’t want to get in trouble again on Youtube, so I’m going to edit the version I post there, and then re-direct anyone who wants to see the entire thing to this post. So, here’s the footage:

Apparently there was a pursuit involving an unidentified subject, who is very clearly armed with what appears to be a handgun, and he is pointing it at his own head, as he walks quickly away from a small army of police officers pursuing him. He walks onto the public road, with bystanders in stopped traffic watching. It appears that the officers are ordering him repeatedly to drop the gun. It’s also obvious that he is in a bad place mentally, and is threatening suicide, or perhaps seeking “suicide by cop.”

Eventually, one or more officers start shooting the man. He drops the ground. Also dropping to the ground is the man’s handgun, which thereafter can be seen out of his reach, below where his feet are lying. What’s really disturbing here, is that the police officers’ guns continue to fire, and continue to impact the limp and incapacitated man lying motionless on the ground. The video then cuts off after a barrage of such shots. It’s unknown to me whether there were additional shots after the camera cuts out. I count at least 6 officers in the immediate vicinity, with more following behind them, as the first shots ring out. I tried to count the number of times they fired, but it seems impossible. It looks like the first two shots incapacitated the man and then the large majority of them came afterwards. In the video, you can see that the officers who are firing can see the handgun on the ground, because some of the rounds are hitting right where the gun is located on the ground. Perhaps they were still shooting at the gun? They keep shooting the man, as his body rolls over prone, with rounds hitting the asphalt all around him, as well as impacting his body, and apparently his legs.

I don’t think there’s much of an issue about the first shots fired. The case law is pretty clear that cops can shoot a suspect armed with a handgun, so long as he’s objectively viewed as an imminent threat. An officer may use deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner (1985). I looked closely, and can’t quite tell which hand is holding the handgun at the time the first shots are fired. It looks to be the right hand. And it’s also a close call whether the right hand, arguably holding the gun, rises towards the officer before, or after, the first shot. But it does start to come up.

However, the Fourth Amendment still prohibits law enforcement officers from using excessive or unreasonable force in the course of making an arrest or otherwise seizing a person, which includes shooting him. See Graham v. Connor (1989). The courts determine whether the amount of force used by police is reasonable based on an objective standard, looking at the the circumstances confronting the officer “immediately prior to and at the very moment” he fired his weapon. Greenidge v. Ruffin (4th Circ. 1991). Moreover, this is assessed specifically as of the “moment that force is employed,” Waterman v. Batton (4th Cir. 2005).

This took place in the jurisdiction of the Fourth Circuit, which has previously held that the number of shots fired by police, itself, is not dispositive, if other facts indicate reasonableness. See Elliott v. Leavitt (4th Circ. 1996). The Fourth Circuit has held a couple of times that “force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.” See Brockington v.  Boykins (4th Circ. 2011). An officer will not be entitled to qualified immunity for engaging in a use of force that is “unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen….” Estate v. City of Martinsburg (4th Circ. 2020). Although the subject appears to have been armed at the time of the first shots, the video very clearly shows he was not armed for the majority of the shots. Thus, the courts could treat subsequent shots as against an unarmed subject. Of course there could be additional facts of which we’re unaware, such as information indicating to the shooters that another firearm was present.

I wonder if any of these officers were interviewed, or provided statements, immediately following the incident, while it was still fresh in their minds? Or will they be given the opportunity to sleep on it; to review video footage; to speak with union reps; to seek legal counsel; and to submit a written statement at a later time? Whatever the answer is to that – we peasants should be entitled to the same protections….

SCOTUS Issues Landmark Second Amendment Opinion in NYSRPA v. Bruen

Today, the Supreme Court of the United States held that the Second and Fourteenth Amendments protect the right to carry firearms in public. Ultimately, the Court held that: “New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” The ruling specifically challenged the law in New York, but will also apply to the eight other states that still maintain “may-issue” gun permitting laws, including California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island.

In 2008, the Supreme Court recognized the right to bear arms as an individual right in District of Columbia v. Heller. Two years after Heller, in McDonald v. City of Chicago, the court ruled that this right applied against the states, and not just Congress.

The Bruen litigation challenged concealed-carry restrictions under N.Y. Penal Law § 400.00(2)(f) that requires a showing of “proper cause” for the issuance of a carry permit. Lower courts upheld the New York law, but there were ample constitutional concerns over its vague standard, such as showing that you are “of good moral character.” New York wanted to exercise discretion in deciding who needs to carry guns in public, while gun owners rightfully argued that the law flips the constitutional presumption onto gun owners, rather than the government.

The 6-3 majority opinion, authored by Justice Clarence Thomas and joined by Justices Alito, Gorsuch, Kavanaugh, Barrett, and Chief Justice Roberts, rejected the “two-step” approach often employed by lower courts since the McDonald v. Chicago in 2010, saying that the Constitution “demands a test rooted in the Second Amendment’s text, as informed by history.”

The Court expressly held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Quoting the McDonald plurality opinion, the Court held that: “The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” 

The Court said that: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.” 

Prior to today, the SCOTUS had only established a right to have a handgun in one’s home under the Second Amendment. Now, as was hoped for, and widely expected, the Court has now recognized that the right to “bear” arms includes the right to do so outside the home. States such as New York obviously still have numerous gun laws in place which restrict and affect this right. Going forward, Justice Thomas’s opinion means that courts should uphold gun restrictions only if there is a tradition of such regulation in U.S. history.

Thomas correctly notes that in 1791, there was no broad prohibition on the public carry of firearms, with their exclusion only being limited to certain “sensitive places.” Some of the more low-information politicians and commentators out there today argue that only muskets were available in 1791, and that therefore we should now be limited to muskets. Setting aside the obvious flaws in their logic, which would likewise render the First Amendment inapplicable to modern forms of communication and technology, the story of America is interwoven with the invention, use, and perfection of, the American Longrifle. Which by its very definition is not a musket, and which was used respectively in war, acts of self defense, as well as for other uses such as recreation and hunting. One could also point out that cannons were indeed available in 1791, including ships full of them, lawfully available for private ownership and operation.

In response to the opinion, New York Governor Kathy Hochul expressed that she believed the opinion to be “absolutely shocking that they have taken away our right to have reasonable restrictions.” We can see where this is headed in blue states such as New York. What happens when state and local governments refuse to enforce federal constitutional law, such as the Bruen decision? The remedy available to citizens is to sue under 42 U.S.C. Section 1983 (i.e., a federal civil rights lawsuit).

But no so fast, since this is where qualified immunity comes in. There’s usually a lag period in between a change in the law and the time in which the federal courts will hold governmental officials (police officers) liable under Section 1983 for civil rights violations. The excuse is generally that police officers can’t be expected to know of every change in the law as it occurs and should be given what is essentially a grace period. Will that happen here if lawsuits are necessary (which I guarantee they will be), and if so, how long will that grace period last? We shall see…. It doesn’t help that federal law enforcement is already announcing their “respectful” disagreement with the opinion.

The U.S. Department of Justice issued a press release today:

“We respectfully disagree with the Court’s conclusion that the Second Amendment forbids New York’s reasonable requirement that individuals seeking to carry a concealed handgun must show that they need to do so for self-defense. The Department of Justice remains committed to saving innocent lives by enforcing and defending federal firearms laws, partnering with state, local and tribal authorities and using all legally available tools to tackle the epidemic of gun violence plaguing our communities.”

https://www.justice.gov/opa/pr/justice-department-statement-supreme-court-ruling-new-york-state-rifle-pistol-association-inc

Wait, how does separation of powers work? Also, which Article or Amendment to the Constitution creates and governs the DOJ? I suppose the Framers should have provided an option for an agency of the executive branch to “respectfully disagree” with a “conclusion” of the Supreme Court.

Qualified immunity will not be a defense to cities and county governments who adopt policies and practices that violate federal constitutional rights, now including the Second Amendment as defined by Bruen. This is because political subdivisions cannot assert qualified immunity, as per the U.S. Supreme Court, who created qualified immunity out of thin air in the first place. State governments, on the other hand, have no need to assert federal qualified immunity, because they cannot be sued for money damages in federal courts.

Here is the full opinion in NYSRPA v. Bruen: