Category Archives: Qualified Immunity

Worst Cop Ever Prolongs Stop for Drug Dog and Baptizes Arrestees

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How long can a traffic stop last? Can officers “prolong” a stop and order a drug dog? Also, can police officers baptize you in lieu of a ticket? April 17, 2019, William Klaver was driving south towards Chattanooga, Tennessee. Police Officer Daniel Wilkey, a Hamilton County deputy sheriff, stopped Klaver for a tinted-window violation. The driver didn’t know it at the time, but he was facing a police officer described by the New York Times seven months later as having been charged “with rape, extortion, stalking and assault,” as well as “false imprisonment, child molestation and forced baptism.” Yes, that’s right. “Forced baptism.” And there’s video, believe it or not. 

After stopping the driver and approaching his window, Wilkey told Klaver that he stopped him because his windows were “way too dark” and requested his driver’s license. It was 8:10 p.m. As Klaver searched for his license, Wilkey inquired about where Klaver was headed. When Klaver didn’t respond, Wilkey asked, “Not going to talk to me?” At about this time, Police Officer Tyler McRae, another Hamilton County deputy, pulled up and approached the vehicle’s passenger side window. After several seconds, Wilkey asked Klaver, “You okay?” and again requested his license. Klaver then asked, “Am I being detained?” Wilkey responded “yes” because of the “window-tint violation,” after which Klaver handed over his license. 

The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015). Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop.

The Supreme Court has provided a list of acceptable tasks that are connected generally to safety and driver responsibility:

Officers will usually question a driver about the traffic infraction; they will run the driver’s license plate; they will request and review the vehicle’s registration and insurance; they will check for outstanding warrants; and lastly they will write a ticket. Officers also commonly question drivers about their travel plans. So long as they do so during the time that they undertake the traffic-related tasks for the infraction that justifies the stop (Arizona v. Johnson), officers may also ask questions about whether the driver has drugs or weapons in the car, or even walk a drug-sniffing dog around the car (Illinois v. Caballes). These unrelated tasks turn a reasonable stop into an unreasonable seizure if it “prolongs” the stop. Officers may not avoid this rule by “slow walking” the traffic-related aspects of the stop to get more time to investigate other potential crimes. 

Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes. See Hernandez v. Boles (6th Cir. 2020).

The reasonable suspicion basis for the traffic stop detainment was an allegation of dark tint. Later, the officers would argue the existence of other criminal suspicion, including suspicion of Klaver being a “sovereign citizen” and Klaver visibly shaking. This, they would argue, justified the officers suspecting Klaver of being in possession of drugs.  As Wilkey and McRae headed back to Wilkey’s cruiser, Wilkey said the words “sovereign citizen” to McRae. The officers then talked. Wilkey observed that Klaver’s van had an “obstruction” which was a Marine Corps sticker, over his license plate. He also claims to have noticed that Klaver was “shaking like a leaf.” He told McRae they should “make sure he ain’t got no pot or anything.” Wilkey suggested that they call for a drug-sniffing dog. McRae agreed because Klaver would “say no to a search.” A criminal background check revealed no relevant criminal history. 

About 5 minutes into the stop, the officers returned to Klaver’s van and requested his registration and insurance card. Wilkey continued to question Klaver. He asked him whether he had ever been arrested; whether he was on any “kind of medication” or had “any kind of disability,” because “you’re shaking.” He asked if he had “Parkinson’s or anything like that?” Klaver responded he didn’t think that Wilkey was entitled to ask him these questions. Wilkey responded that Klaver’s shaking suggested he was “hiding something” or had “drugs.” He asked, “you don’t have any of that, do you?” Klaver responded, “You know I don’t.” A minute later, Wilkey again asked Klaver if he had anything illegal in the car like “weapons or anything like that.” Klaver said no.

Did the deputies have reasonable suspicion to prolong the stop? 

To have reasonable suspicion here, the deputies needed a “particularized” belief (that is, one tied to Klaver) and an “objective” belief (that is, one tied to articulable facts rather than amorphous hunches) that Klaver possessed drugs. The court looks to the totality of the circumstances. 

The 6th Circuit rejected the officers’ claims that Klaver might be a “sovereign citizen” solely because he asked if they were detaining him. They noted that the video showed that Klaver was reasonably polite, not loudly confrontational. “Unless everyone who is reluctant to speak with the police might be a ‘sovereign citizen,’ the deputies’ claim appears to have rested more on a ‘subjective hunch’ than objective facts.” The Court noted that the officers failed to identify a single judicial decision or evidentiary citation suggesting that a person’s “sovereign citizen” status correlates with the likelihood of possessing drugs. Therefore the assumption was irrelevant. 

The 6th Circuit also rejected the officers’ claims that Mr. Klaver shaking justified a suspicion of possessing drugs. “Many law-abiding people show their nerves in the same way when confronted by the police . . . [s]o we have always given nervous shaking little weight,” as it “amounts to a weak indicator of crime.” The Court also rejected the officers’ claims that Mr. Klaver’s reluctance to cooperate or respond to questions, including about why he was shaking, justified a suspicion of possessing drugs. A suspect generally does not have a duty to cooperate, and so the lack of cooperation does not alone provide reasonable suspicion to believe that the suspect is committing a crime.” See Florida v. Bostick, 501 U.S. 429, 437 (1991).

Wilkey then asked permission to search the van. Klaver responded, “I refuse permission for you to search my vehicle” and said “there’s nothing in here.” Wilkey continued to ask many of the same questions he had already asked, about the reason for Klaver shaking.

At 8:18 p.m., now 8 minutes into the stop, the deputies returned to the police cruiser and requested a canine officer. Dispatch informed them two minutes later than one was in route to the scene. Wilkey then filled out paperwork for the traffic ticket over the next several minutes. At 8:24 p.m., McRae approached Klaver. A few minutes before, Klaver began recording video from inside his van. He filmed himself peeling the tint from the inside of his driver’s side door window. McRae attempted to ask him about his military service. Klaver responded that he didn’t mean to be “disrespectful,” but that he would not “answer any more questions.” He stated that he wanted to be “on my way” if they were not arresting him. McRae stated that Wilkey was writing a ticket. Klaver said they needed a reason to detain him. McRae described the window tint and license plate violations, and then returned to Wilkey’s cruiser. 

Deputy Wilkey continued filling out the ticket until the canine officer arrived at 8:32 p.m. The stop had now persisted 22 minutes. Wilkey told the canine officer that Klaver was likely a “sovereign citizen” who was “being combative” and “trying to conceal himself.” He said that the canine officer should let him finish with the ticket before deploying the dog in case Klaver “does something stupid.” Wilkey then returned to the van and ordered Klaver to exit the van for the dog sniff. He patted Klaver down and discussed the citation with him as the dog circled the van. Klaver now told Wilkey that the tint was now off his driver’s side window. 

At 8:40 p.m. Deputy McRae told Wilkey (and an incredulous Klaver) that the dog had alerted to drugs in the van. McRae and Wilkey then searched the van for five minutes. They found nothing. Wilkey again asked Klaver whether he had drugs. Klaver again answered that he did not.  As Klaver signed the citation, he said to Wilkey: “In case you were wondering, I have muscular dystrophy.” Wilkey replied: “That’s all you had to say, sir.” Klaver then drove off at 8:50 p.m.

Mr. Klaver filed a pro se lawsuit against Wilkey and McRae (among others). The defendant officers moved for summary judgment. The Court denied the motions on the ground that the officers unreasonably prolonged the stop without reasonable suspicion that Klaver possessed illegal drugs. The defendant officers filed an immediate appeal on qualified immunity grounds. The 6th Circuit issued an opinion on November 3, 2022.

The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015).

1. Did Wilkey and McRae prolong the stop beyond the time necessary to resolve the window-tint violation? 

2. If so, did they have reasonable suspicion to believe that Klaver was engaging in other crimes?

The 6th Circuit held that a reasonable jury could find that both Wilkey and McRae unreasonably prolonged the stop. 

The 6th Circuit upheld the denial of qualified immunity to the officers, noting that, “[w]e have a mountain of caselaw indicating that heightened nerves represent weak evidence of wrongdoing and cannot be the primary justification for a stop.

Stay tuned for Part 2, on the aftermath of Daniel Wilkey…

Family Court Judge Search Case Now at the Fourth Circuit

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Imagine you’re sitting in family court and the judge looks at you and says, what’s your address? I’ll meet you there in 10 minutes, and I’m going to search your house with your ex-wife and my bailiff – a police officer who will arrest you if you don’t let me in. March 4, 2020, that’s what happened to my client. Here’s an update on the current status.

We won on the issue of judicial immunity. Just before the jury trial was set to begin, the defendant judge appealed the case to the Fourth Circuit. Since this matter involves judicial immunity, it’s capable of being appealed prior to trial. Usually a defendant is required to wait until afterwards.

They just filed their brief a couple of days ago. Next it’s our turn to file a response brief, which is due mid-November.

Here’s the federal court opinion denying judicial immunity:

Cops Hogtie Innocent Man | Can the Police Hogtie Arrestees?

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October 9, 2020, Sterling Police Officer Paul McDaniel pulled Christian Weitzel from his apartment and threw him to the ground. With the assistance of Sterling Police Officer Matt Williams and Logan County Sheriff’s Deputy Alton McGuffin, the three officers hogtied Mr. Weitzel with his wrists handcuffed behind his back, his ankles strapped together, and his ankles and wrists tied together behind his back. They drug him to a police cruiser, threw him into the rear seat, and left him in that position until he was finally released at the jail.

There was a verbal argument between Mr. Weitzel and his wife, Brittany Weitzel. Mr. Weitzel was not arrested or charged with any criminal offenses related to a domestic dispute. The officers were called to the scene following a call from a neighbor of a possible domestic dispute due to hearing loud voices. After the officers arrived at the apartment, they could not hear anyone yelling inside the apartment. They did not observer any altercation taking place, or any crimes being committed. 

Officer McDaniel asked Brittany what was going on and she stated, “just an argument.” She did not appear to have any injuries. She did not request assistance from the officers. She had not called them to the scene. Mr. Weitzel then walked up to the doorway from inside the apartment. He did not step outside the threshold of the apartment door. He asked Officer McDaniel, “what’s up man,” in a calm nonthreatening, and nonaggressive manner. 

Officer McDaniel asked Mr. Weitzel to “come here and talk to me man.” Mr. Weitzel, in a calm, nonthreatening and nonaggressive manner, stated, “I’m cool,” indicating that he wanted to stay inside the doorway of his apartment. He made no sudden moves. He did not threaten the officers in any way. Mr. Weitzel did not appear to be armed. Nor did the officers have any information or indication that Mr. Weitzel was armed. Mr. Weitzel was ultimately hogtied for approximately 16 minutes. Mr. Weitzel was charged with disorderly conduct, resisting arrest, and obstructing. All the charges were subsequently dismissed by Logan County Court Judge Ray Ann Brammer. 

A lawsuit was filed just a few days ago in state court in Colorado over these allegations. I’ll post it up to the blog, link in the description. As for the facts, based on the body cam footage and the facts presented in media reports and the civil lawsuit, constitutional rights were violated. Why?Although the officers were called to the scene of a reported domestic dispute, they ended up acting on a very small amount of information that, even if true, does not justify an arrest of the homeowner, much less a use of force. 

A neighbor called 911, reporting a suspected verbal argument. There was apparently no allegation of a crime being committed, or that anyone’s physical safety was in jeopardy. When officers arrived at the scene, they saw no crime being committed. They located and observed both spouses at the residence. Neither appeared to be in distress, or requested their assistance. Without Mrs. Weitzel requesting their assistance, under these circumstances, the officers had no justification for pulling Mr. Weitzel out of his house. That’s a Fourth Amendment violation right there. But even assuming they acted properly up to that point, then we have the arrestee being hogtied on the ground. 

Colorado is the 10th federal circuit. A quick search of the case law shows that police officers hogtying anyone is a terrible idea under almost any fact pattern. It could theoretically be reasonable under some circumstances, but I really don’t know what that would be. It certainly would not be reasonable under this fact pattern, where the arrestee had not committed any crime at all, much less a severe one. Watching the body cam footage shows that the arrestee is not attempting to harm the officers. He poses no threat to them. 

Rather, it appears that the officers hogtied the man in retaliation for not immediately respecting their authority by stepping out of his house when they asked him to do so – despite having no legal justification for the demand. This appears to be one of those common situations where police are going to teach a lesson about respecting the police. It’s clearly not about the safety of anyone on the scene, including the arrestee. 

There’s a 10th Circuit case, Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), that discusses hogtying, making it clear that the courts consider it akin to the use of deadly force, as it poses a high danger of positional asphyxiation. I’ll put all the legal citations in the blog post on this, which you find in the description. The Weigel case also cites another 10th Circuit case, Cruz v. City of Laramie, 239 F.3d 1183, 1188-89 (10th Cir. 2001), which is relevant here. 

In Cruz, Wyoming police officers responded to a complaint of a naked man running on the exterior landing of an apartment building. When the officers arrived, Mr. Cruz, the man on the landing, was jumping up and down and kicking his legs in the air. When he descended from the landing, the officers wrestled him to the ground and handcuffed him. They hogtied him. Shortly thereafter, Mr. Cruz’s face blanched. He was rushed to the hospital, where he was pronounced dead on arrival. Expert reports indicated that Mr. Cruz’s death resulted from positional asphyxiation. Citing Cruz, the 2008 Weigel opinion denied those officers qualified immunity for similar conduct, issuing a clear warning to law enforcement to think twice about hogtying arrestees. As a result of this, the Wyoming State Police, as I understand it, prohibited the practice. Back in the 90’s, the DOJ also warned against the cruel practice.

There are a lot of other hogtying cases out there. But I gave you the 10th Circuit law, as that is applicable for this particular jurisdiction. 

Full raw footage here.

Officer Meltdown During Open Carry I.D. Refusal in WV | What Happened in Court

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On February 21, 2018, Putnam County Sheriff’s Office Deputy B.E. Donahoe responded to a complaint relayed from the emergency dispatch center that someone had reported that there was an individual walking down the side of a public road while in possession of a firearm.  The individual was the plaintiff, Michael Walker, who being a victim of epileptic seizures, does not have a driver’s license.  He was headed coyote hunting, and had a rifle strapped over his back, along with a backpack.  Deputy Donahoe brutally insulted Mr. Walker, who was being polite, but insisting that he had committed no crime, and therefore should not be stopped and forced to hand over his ID. Donahoe repeatedly called him a “c_cksucker” while forcibly detaining him and running a criminal background check on him and questioning him as to why he would need an AR-15. The incident was fully captured on video by Mr. Walker.

At the time Deputy Donahoe responded to the scene, he possessed no prior knowledge of Mr. Walker.  All he knew about Mr. Walker is what he observed when he arrived at the scene, which was observing him walking down the side of the road.  He didn’t recall who had called 911, or specifically what the complainant had stated, other than that there was a guy walking down the side of the road with a firearm. Upon arriving at the scene, he observed Mr. Walker walking down the side of the road with a rifle “strapped across his back,” with the muzzle of the gun pointed towards the sky.

Upon arriving at the scene, Mr. Donahoe did not observe Walker committing any criminal activity. Nor was he informed by any other source that any crime had been committed by any individual. Walker was just walking. Donahoe had no indication that Mr. Walker was a person prohibited from possessing a firearm. Donahoe testified that he did not observe Mr. Walker doing anything unsafe with the rifle strapped on his back; nor did he observe the rifle in Mr. Walker’s hands; nor did he observe Mr. Walker acting threatening in any way.  His only reason for stopping Mr. Walker was to find out if he was a prohibited person.

As portrayed by video footage taken by Mr. Walker with his phone, the interaction was not consensual. Donahoe gave Mr. Walker “no choice” in the matter. He told him during the stop that he was not free to leave until he was done with his investigation. Donahoe explained that the only investigation he was undertaking at the time, to which Mr. Walker was forced to submit, was to run Mr. Walker’s criminal history report, in order to determine whether he “was a person that could possess a firearm.” Admittedly, he had no information indicating that Mr. Walker may have been a prohibited person.

The case is over. We lost. Compare the video footage of the encounter with the legal aftermath, from the trial court level, through appeal to the Fourth Circuit, oral arguments, and ending with a deeply flawed published Fourth Circuit opinion. This case demonstrates what I refer to as a Bermuda Triangle of civil rights law….

Here we are following the hearing at the U.S. District Court in Huntington, West Virginia.

The U.S. District Court granted summary judgment for the officer, dismissing the lawsuit filed by Michael Walker. The order essentially created a carve-out for AR-15 style rifles from the usual reasonable suspicion analysis:

Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.

Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.

The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm. See Embody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).

The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. See Deffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).

Together, these facts would form a particularized and objective basis for an investigatory stop.

Here is the full District Court Order that was appealed to the Fourth Circuit:

This was our opening brief to the Fourth Circuit:

Listen to oral arguments from this case at the Fourth Circuit:

Here’s me actually arguing to the Fourth Circuit panel, via my computer, in the bizarro world that was 2021 America:

Here’s the Fourth Circuit Opinion that ensued:

Here is our petition for rehearing en banc, which was denied:

Abandoned on Train Tracks by Police | Qualified Immunity? | State-Created Danger Theory

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By now we’ve all seen the footage of the train in Colorado hitting the police car stopped on the tracks, severely injuring a woman in police custody who was placed handcuffed in the rear of the police cruiser. My immediate thought was qualified immunity. There can be no doubt that the police officer was directly at fault in causing the severe injuries to the woman in his custody. No doubt about it. But unlike a doctor who negligently injures someone, a police officer get to assert qualified immunity. 

Here’s the 8 minute clip showing the train hit the cruiser:

Qualified immunity is unfair and needs to be abolished. A lawyer representing this woman, if a lawsuit is filed, is going to have the legal requirement to point to some past clearly established case law describing the officer’s conduct as a civil rights violation. Well, how many cases have there been in any particular jurisdiction where police officers let people in their custody get hit by trains? Moreover, as I’ve explained before, to establish section 1983 liability, you have to allege intentional conduct – not negligence or incompetence. Some intentional or purposeful conduct. For this reason, when one police officer accidentally shoots their partner, there’s generally no liability. I did a video on that one already. 

I took a quick look at the case law in the jurisdiction where this train incident happened, which is Colorado, which is in the Tenth Circuit Court of Appeals. So that’s where you want to look first for federal civil rights case law. I have a theory of liability here. First, take a look at some of the new footage released, from another angle.

There’s a legal doctrine under section 1983 called the state-created danger theory. Basically, it allows a pathway for a plaintiff to establish section 1983 liability for a civil rights violation where the government may not have directly or intentionally caused the injury to the plaintiff, but created the possibility or likelihood that it would occur. This theory has been adopted in the 10th Circuit. Here’s what a plaintiff would have to prove: 

  1. the charged state … actor[ ] created the danger or increased plaintiff’s vulnerability to the danger in some way; 
  2. plaintiff was a member of a limited and specifically definable group; 
  3. defendant[‘s] conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; 
  4. the risk was obvious or known; 
  5. defendants acted recklessly in conscious disregard of that risk; and 
  6. such conduct, when viewed in total, is conscience shocking.

Estate of Reat v. Rodriguez, 824 F.3d 960 (10th Cir. 2016)

But to defeat qualified immunity, you still have to point to a prior case with a similar fact pattern. Again, a non-exhaustive review of 10th Circuit case law shows that the state-created danger doctrine has been applied: 

Off-duty police officer on personal business who crashed his police vehicle;

On-duty police officer who engaged in a high-speed chase;

Firefighter who crashed his truck into a car;

Police officer who caused the death of a bystander by instructing him to help physically subdue a suspect, who then shot the civilian; 

Social worker who removed a child from his mother’s home and placed him with his father, who killed him;

School official who suspended and sent home a special education student who subsequently killed himself;

State mental health administrators who eliminated a special unit for the criminally insane, causing the transfer of a murderer to the general hospital, where he killed his therapist. 

The common theme for liability in the 10th Circuit under the state-created danger theory is that the victims were unable to care for themselves or had limitations imposed on their freedom by state actors. This is very much like the deliberate indifference standard imposed on correctional officers entrusted with the care of inmates. The arrestee is unable to act herself. She can’t get out of the way of the train. Likewise, if a prison catches fire, inmates locked in their cells can’t get out on their own. 

I can think of a few other arguments and theories for liability. But this is an often-overlooked one, and popped into my head first. It seems to match our facts here. Watching the footage establishes, without much potential for dispute, that the arresting officer created the danger; that he rendered the victim incapable of helping herself; that he put her into harm’s way, and that the risk was obvious. You can see the fact that he had parked on the train tracks. No doubt the evidence would show that he was aware of the fact that these tracks were frequented by trains. You can actually hear the train coming in the body cam footage. 

If this woman is left with no justice due to qualified immunity, hopefully people will start paying attention. Qualified immunity serves no legitimate purpose. It’s the very definition of judicial activism. I’ll be watching this one to see what happens. 

“Creepy Search Cops” Ask Federal Court to Restrict My YouTube Channel

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I know that many people are following my progress in the Creepy Cops Search Case out of Putnam County, West Virginia, where drug task force police officers were caught on camera illegally searching my client’s house. That apparently includes those officers and their lawyers in the pending federal civil rights lawsuit. This is the most recent update about the case:

On Friday, the defendant officers’ lawyers filed a motion completely centered on my Youtube channel, requesting an order prohibiting me from ever publishing video deposition testimony of those police officers. Basically they’re requesting court approval for a coverup. Now, important First Amendment issues are implicated. Police already have qualified immunity. The one remedy given to us by Congress it to sue them. Now they want to turn that process into something akin to Family Court or abuse and neglect proceedings, where government gets to operate in secrecy and without accountability and exposure. Here’s the motion they filed:

Here are their attached exhibits:

The video depositions in the Creepy Cops Search Case haven’t even been taken yet. They’re actually scheduled to be taken in a few days. I already agreed to postpone them several times already at their request, because they were concerned that the FBI was investigating them. So I gave them time to evaluate their situation and hire or consult criminal defense attorneys before they testified. Now, they want to testify essentially in secret. Why? Because posting their video testimony allegedly puts them in danger. They went through the prior videos I published on this situation and cherry picked the craziest ones they could find, and presented them to the Court as the basis for why I should be forever silenced from exposing their misconduct. 

At the end of every video I tell you that freedom is scary. Why? Why is it scary? Fear is the tool that tyrants use to subject us and take away our freedoms. Over and over again. From the beginning of recorded history to the present. Of course police officers in America, if given the choice, would choose to operate in secrecy. They don’t want to be recorded. They don’t want to give you their names – they just want yours. 

“It’s Not a Gun Bro” – LAPD Footage Shows Suspect Holding Car Part

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We’ve all seen the recent shooting footage out of Ohio. But that may have overshadowed another recent case where body cam footage was just released from the LAPD. Body cam footage reveals that just before officers shot an unarmed man holding an automotive part, that one of the officers said to the others, “it’s not a gun bro.” Then he was shot with no warning. Indeed, it wasn’t a gun.

Here’s the LAPD’s video:

Here’s the official account as per the LAPD:

On July 18, 2022, at around 7:20 p.m., Southwest Division patrol officers received an “Assault with a Deadly Weapon” radio call. The reporting party advised Communications Division that the suspect was armed with a black, semi-automatic handgun. Uniformed personnel observed the suspect matching the description listed in the comments of the radio call, walking on the north sidewalk of Martin Luther King Boulevard, just east of Bronson Avenue. Officers made contact with the suspect, who they believed was in possession of a handgun. The suspect refused to respond to officer’s verbal commands. As a uniformed supervisor arrived at scene, he also believed that the suspect was armed with a handgun. As the suspect walked away from the officers, he turned multiple times in their direction and pointed a black metallic object believed to be a firearm, which resulted in an Officer-Involved-Shooting (OIS). The suspect was struck by gunfire and taken into custody.

Determining whether an officer’s use of force violates the Fourth Amendment requires balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner (1985).That inquiry generally involves an assessment of factors such as “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.” Graham v. Connor (1989).

In the context involved here, the Supreme Court has crafted a more definitive rule: An officer may use deadly force to apprehend a fleeing suspect only if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Garner , 471 U.S. at 11, 105 S.Ct. 1694. A suspect may pose such a threat if “there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm,” or if the suspect threatens the officer or others with a weapon capable of inflicting such harm. Id.

The key questions is whether the officer had an objectively reasonable basis for believing that the suspect posed a threat of serious physical harm, either to himself or to others. 

The officer who fired here, fired from behind at a suspect who was running away from the officer. Thus it would be difficult to claim that he did so out of fear for his own safety at the moment the shots were fired. Did the officer therefore have an objectively reasonable basis for believing that the suspect posed an immediate threat of serious physical harm to others? The footage shows that no other individuals appear to be in immediate danger at the time the shots were fired. One police cruiser attempts to drive up and block the suspect’s path. Theoretically the officer, or officers, inside could be in harm’s way – though they also clearly were intentionally placing themselves in his path.

Perhaps the best argument for justification is what is known as the “fleeing felon rule” which arose out of Tennessee v. Garner. An officer can argue that permitting the suspect to escape posed a threat to the general public. A fleeing suspect’s escape can pose a threat to the public when police have probable cause to believe that the suspect has committed a violent crime. Deadly force to prevent such an escape can be reasonable if the suspect has demonstrated that he was willing to injure an officer who got in the way of his escape or that he was willing to persist in extremely reckless behavior that threatened the lives of all those around. (Orn v. City of Tacoma, Corp. (9th Cir. 2020). 

Usually this would involve a vehicle pursuit, or some type of running gun battle situation, where the suspect has already tried to seriously injure someone. Here, however, though it was reported that the suspect pointed a gun at someone, the officers did not know that to be true as of yet. They had not observed him threaten anyone with a gun. They had not positively identified the person by that point. They merely observed that he was holding something that could be a gun, and that he refused to stop and talk with them. There’s no probable cause for the officers to believe that the suspect had committed any serious crime. The suspect was not given a warning of the imminent use of deadly force by the officers, which has been required by the 9th Circuit in prior cases. 

To the contrary, here, the officers themselves were unsure of whether they many even had a gun. As we heard on the body cam footage, one of the officers said, “that’s not a gun bro.” And it wasn’t. At the end of the day, there is sufficient evidence here to deny qualified immunity and take the officer before a civil jury on an excessive force claim. The jury can decide whether the officer’s claims, whatever they end up being, are objectively reasonable. 

Virginia Jury Awards Damages Against Officers for Civil Rights Violations

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Today’s video is about Matthew Souter, who owns a farmhouse in The Plains, Virginia. He ended up being unlawfully arrested and tased by police officers in his front yard. Back in November of 2018. He rented a bedroom and bathroom in his home to Melissa Johnson. Following a dispute about her cat and an electric hotplate, she went to a local court and obtained an ex parte Emergency Protective Order (“EPO”) against Mr. Souter, which restricted him from “acts of violence, force, or threat of criminal offenses resulting in injury to person or property” of Johnson.

The next day, November 10, 2018, Johnson called the Fauquier County Sheriff’s Office and reported that Plaintiff had violated the EPO by terminating the electric and water service to her bedroom and bathroom. She spoke with a deputy who took her complaint and classified it as a “civil matter.” Not satisfied with that, she called again later the same day. This time she spoke with a different deputy, who was dangerously incompetent. He ended up applying for an arrest warrant against Mr. Souter, alleging a violation of the EPO. There in fact was no violation – nor any reason for him to believe that Mr. Souter had committed any crime. But, he obtained an arrest warrant. 

This deputy and his supervisor then traveled to Mr. Souter’s home with an arrest warrant. The deputies seized Mr. Souter. I spoke with Mr. Souter on the phone and he denies resisting this arrest. However, in a subsequent ruling, the federal court wrote that it was undisputed that he resisted arrest. This is what the Court found, specifically: “Plaintiff resisted arrest and did not permit the officers to handcuff him. The officers then wrestled the Plaintiff to the ground, while Plaintiff continued to resist the officers. McCauley then used a taser to subdue the Plaintiff. After Plaintiff was tased, the officers were able to handcuff the Plaintiff.” Mr. Souter was tased multiple times and was bleeding. He was taken to a local hospital emergency room. 

The officers subsequently charged Souter with the underlying EPO violation, as well as attempted fleeing from a law enforcement officer. The EPO charge ended up being dismissed by the prosecutor, and he was found not guilty of the fleeing charge following the criminal trial. 

Then Souter filed a federal section 1983 civil lawsuit. Here’s the complaint his lawyer filed:

Souter-ComplaintDownload

Fast forward in the litigation, and something pretty unusual ended up happening. The federal judge – Judge Ellis – in the Eastern District of Virginia, not only denied qualified immunity to the officers, but granted summary judgment in favor of the Plaintiff. That means that the Court found that Mr. Souter’s civil rights were violated, as a matter of law, and that the only issue for the jury to decide is the amount of money damages to be awarded. 

Why did the officers lose qualified immunity, as well as the opportunity to even oppose liability in front of the jury? In short, because they acted such utter incompetence. The Fourth Amendment protects against citizens being unlawfully arrested by law enforcement. An unlawful arrest is one that occurs in the absence of probable cause. Police officers can be held civilly liable for a false arrest “if it would have been clear to reasonable officers in their position that they lacked probable cause to arrest” Plaintiff for violating the cited law. Graham v. Gagnon (4th Cir. 2016).

The officers aren’t required to be actually correct in their probable cause determination, but rather reasonable in their probable cause determination. Here’s the Court’s full opinion:

Souter-Mem-Order-MSJDownload

In this case, all the officers knew is the allegation that the Plaintiff had cut off Johnson’s water and electric service. There was no reasonable basis for them to conclude that the Plaintiff had engaged in any act of violence, force, or threat, against Johnson. Thus, if they believed Plaintiff had done any of those acts, such a belief would have been clearly erroneous and unreasonable. 

The arrest warrant the officers obtained alleged violation of a domestic violence type of protective order, which did not exist in this case. No such domestic violence type of protective order had been issued against the Plaintiff, as would be obvious on the face of the actual EPO served on the Plaintiff. Moreover, even if Plaintiff had been served with a domestic violence protective order, cutting off water and electric do not constitute acts of violence, as defined in the EPO. Therefore, Plaintiff’s conduct could not have led a reasonable law enforcement officer to conclude that probable cause existed or that his arrest was proper. Thus they violated his constitutional rights when they unlawfully arrested him (and used force to effectuate that arrest) in the absence of probable cause. 

The illegality of Plaintiff’s arrest taints the defendant officers’ subsequent actions and renders them liable for Plaintiff’s excessive force claims. Under federal law, “the Fourth Amendment prohibition on unreasonable seizures bars police officers from using excessive force to seize a free citizen.” Jones v. Buchanan (4th Cir. 2003).

Let’s fast forward to the trial results. The jury ended up awarding a total of $50,000.00 in compensatory damages to Mr. Souter. Here’s the jury verdict form:

Souter-Verdict-FormDownload

In my phone conversation with Mr. Souter, he was actually very unhappy with the verdict, both in the amount of $50,000.00, as well as the lack of a punitive damages award. He took issue with how the presentation of the damages claim was presented to the jury at trial.

For many reasons, people many times have unrealistic expectations on the value of damages in civil rights cases. At the end of the day, a jury decides these things. This can vary wildly depending on a number of factors, including the personalities of the parties, as well as the jurors themselves. I wasn’t at this trial, so I really have no idea what dynamics were present in the courtroom. But this illustrates one of the difficult parts of the job of a civil rights lawyer. Ultimately you have to convince a jury to award money damages. How do you do that? It can be very difficult, and sometimes emotion is all you have, assuming you can instill it in the hearts of the jurors. 

There’s a form instruction in section 1983 cases that says something to the effect of, if you find that the plaintiff’s civil rights were violated, you must at least award $1.00, even if you find that the plaintiff suffered no actual damages. The value of constitutional injuries can vary wildly based on who is on the jury. But there’s also a federal law, 42 U.S.C. Section 1988, which provides for an award of reasonable attorney fees following a finding of liability. That means that even if a jury awards One Dollar, there could potentially be an attorney fee award of six figures. 

Cop Busts Down Door For Chess Set

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A federal lawsuit was filed in Atlanta, where body cam footage shows Clayton County Police Officer Gregory Tillman breaking down a woman’s door and slamming her to the ground after she refused to give a chess set back to a man who had moved out. All of this happened in front of the woman’s son.

According to news reports, this involved her friend’s ex-boyfriend, who showed up claiming that he had left some items there, including a remote control and a chess set. He called 911 after she refused to let him inside her home. She believed that the man had previously been arrested on domestic violence related charges involving her friend. 

The newly-released boy cam footage shows the officer banging down the door, shouting, and then using force against the homeowner. Her son was home at the time of the attack and is heard on the body cam video pleading with the officer: ‘Hey, sir. My mom got health problems, sir.’ The video shows the officer kicking the homeowner’s legs fro under her, forcing her to fall to the floor, while the officer attempted to handcuff her. 

Original Video:

Ultimately the officer was disciplined. The county’s oversight board first voted to terminate Officer Tillman. But then, they changed their mind and voted to give him a three-day suspension, with additional training. 

The original incident happened in 2019. However, it just hit the news in the past day or so. So I looked up the pending case on pacer and pulled a couple of the case documents. It looks like qualified immunity was denied to Officer Tillman by the U.S. District Court for the Northern District of Georgia, and now the officer is appealing, begging the Circuit Court for his qualified immunity. 

I pulled the Amended Complaint which revealed a few more details. Apparently the guy told 911 that he had been “staying” at the residence. Upon the officer’s arrival, the homeowner told Tillman that the man was no longer welcome in her home, and that his belongings had been removed the day before. An argument between Officer Tillman and the homeowner ensued. She asked for his name and badge number. He refused to tell her. At her request, the homeowner’s son called for a supervisor. 

Officer Tillman then is alleged to have informed the guy trying to get inside the home that, he could come and go as he pleased, until properly evicted from the house. The homeowner then announced that she was closing her door until the supervisor arrived. Instead however, without saying a word, Officer Tillman pushed with his shoulder to prevent the door from being closed. She did manage to get it closed. 

Suddenly, Officer Tillman used his shoulder to break down the home’s front door out of its frame, forcibly entering the home. He grabbed the homeowner, wrenched both of her arms behind her body, and swept her legs to the ground. He then placed a knee on her back and roughly handcuffed her. 

After the supervisor arrived, the handcuffs were removed and the homeowner was treated by EMS. Then she was cited on charges of misdemeanor obstruction and criminal trespass, which were later dismissed. 

After the supervisor arrived, he informed the guy trying to get in that he couldn’t get inside without a court order. When the supervisor asked Officer Tillman why he knocked down the door, Tillman responded, “because we had the charge of criminal trespass” and because “he feared for his safety” because he “didn’t know what was behind the door.”

An internal investigation by the agency found that Officer Tillman lacked probable cause to arrest or charge the homeowner, and that she was within her right to refuse entry to both the officer and the guy looking for his remote control and chess set. 

As we’ve discussed many times before, law enforcement entries into our castles are presumptively unconstitutional. The only two exceptions are valid consent and exigent circumstances. He clearly didn’t have consent. Nor was there any exigent circumstances, as the Court pointed out in the order denying the officer qualified immunity, which I’ll post up at the blog post on this. So there’s a clear-cut Fourth Amendment violation for the entry. Then you can add another one for the arrest inside the home – both because it lacked probable cause and because it occurred in the absence of an arrest warrant. Even with probable cause, an officer still must have an arrest warrant to arrest someone inside their home. 

Was there also an excessive force violation? As the Court pointed out in its order, Officer Tillman’s claim that the homeowner posed a threat to him is “unpersuasive.” Frankly, this is a pretty easy one, too. He busted down her door and attacked her. She just wanted to be left alone. He had no probable cause to believe that she had committed any crime. While there’s always a possibility that any homeowner could be armed behind their front door, that’s ever the more reason to not burglarize their homes. 

Order denying qualified immunity:

Yancey-Case-MTD-OrderDownload

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

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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.