Category Archives: Qualified Immunity

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

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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

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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

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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:

Raleigh County Deputies Continue to Enable the Family Court Search Judge in Defiance of the Supreme Court

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The Raleigh County Sheriff’s Deputy defendants in the Family Court Judge Search case have requested qualified immunity from the federal court in their motion for summary judgment in the pending civil lawsuit. Unfortunately for them, they can’t claim judicial immunity, as the judge has, even where following orders of a judge. So they’re stuck with qualified immunity. But will they get it? Their depositions have been taken, and frankly, their testimony was quite shocking. Despite the fact that the WV Supreme Court declared in no certain terms that judges do not search homes, and that the March 4, 2020 search of Mr. Gibson’s house was unconstitutional and “serious misconduct,” both the defendant judge, as well as her current and former bailiffs, continue to defy the Supreme Court, even threatening to do it again.

Here’s Raleigh County’s motion, in full. The gist of their argument is that, even if they participated in a civil rights violation, they should be dismissed from liability, because it was a reasonable mistake of law, which is the basic argument for qualified immunity. Moreover, the department itself claims they didn’t have a formal policy which caused, or substantially contributed to, the civil rights violation. As you’ll see below, the arguments of their lawyers don’t match the testimony of the actual officers, who clearly admit to an ongoing policy of illegal judicial searches, and who apparently have no respect for the law whatsoever.

GibsonCCRCMcPeakeWhiteStumpsMemorandumOFLawInsSupportOfMSJDownload

Posted below is our response to Raleigh County’s motion, which highlights the extremely troubling deposition testimony of two of the deputy defendants, Bobby Stump and Jeff McPeake, both current or former bailiffs of the defendant judge. Here’s a couple of highlights describing their deposition testimony:

Defendant Bobby Stump, who arrived shortly after the search and seizure began, testified that he served as Defendant Goldston’s bailiff for approximately ten years, and that during that time, he went with her to the homes of litigants “numerous times.” (Stump at 6:12-14, 19-24; 7:1-4). When asked to estimate the number, Stump stated, “There’s no way I could – over thousands of divorce cases . . . . There’s no way I could give you an accurate number. I mean, I have no idea.” (Stump at 7:19-24; 8:1)….

According to Defendant Stump, the arrest powers were utilized often while serving as Defendant Goldston’s bailiff. Stump testified that he’s arrested “dozens and dozens and dozens of people with Ms. Goldston.” (Stump at 13:22-24; 14:1-5)…. Stump testified that he personally looked for items in the home of a litigant “numerous times,” explaining, “[a]ll the judges sent me out to look for items” and that, “[i]n the middle of a court hearing they would send me out to look for items at a home.” Stump estimated this occurred dozens of times. (Stump 16:4-12)…. In fact, Stump described that he and Judge Goldston knew each other so well, that when they went into the homes of litigants, “she didn’t have to tell me anything . . . she could just give  a look and I would know what to do.” (Stump 51:4-12)….

Defendant Stump remains employed as a police officer with the Raleigh County Sheriff’s Office. 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, Stump asserts that, “if Judge Goldston told me today to go to the house, I’d be the first one there.” (Stump 56:1-6). Even after the WVSCA declared that Judge Goldston engaged in an unlawful search of Plaintiff’s residence on March 4, 2020, Defendant Stump boldly declared, “I’ve never had a judge to ask me to come remotely [close] to breaking the law.” When asked whether he would violate the Constitution, if asked to do so by a judge, Stump responded, “I know without a doubt, no judge that I ever worked for would ever ask me to violate the law, so I’ve never been in that predicament and I can safely say I never will.” (Stump 58:19-23).

Even in the context of a criminal case, Defendant Stump testified that he would perform a warrantless search of a defendant’s home, if asked to do so by a judge, despite his decades of knowledge and experience with the search warrant requirement under the Fourth Amendment. This same blind allegiance, or ignorance, is what guided Stump on March 4, 2020. (Stump 60:2-21). McPeake likewise subjectively believes that a warrant is not required in order to perform a search of a litigant’s home, at the direction of a family court judge, based on the fact that the judge is personally present and directing their conduct. (McPeake 22:18-24; 23:1-4; 24:5-14, 22-24; 25:1-3).

The judge’s current bailiff, Jeff McPeake, likewise testified that he was specifically told that he was allowed to participate in home searches with judges, and that there has been no policy change since then – even after the WV Supreme Court formally censured the judge for the behavior, calling it “serious misconduct,” unconstitutional, and an “egregious abuse of process” which violated the privacy and sanctity of the victim’s home.

McPeake testified that he believed the search was authorized under department policy due to a conversation with a supervisor, Sergeant Lilly, who told him that it was fine to do so, because “we do do that from time to time.” Thereafter, no supervisor ever told McPeake not to do so. Moreover, as of the date of his deposition, he wasn’t aware of any written policy changes pertaining to bailiffs or deputies going to the home of a litigant with a judge. Nor have any of his supervisors proactively told him not to engage in similar conduct in the future, even though they’re aware that he continues to serve as a bailiff for Judge Goldston. Nevertheless, McPeake noted that his own common sense tells him he shouldn’t do it again. (McPeake 13:10-13; 40:11-24; 64:2-23; 65:9-17). It appeared to McPeake, after getting express authorization from a supervisor to participate in his first home search with a family court judge, that it seemed to be something that occurred on a regular basis. (McPeake 13:7-13; 15:3-8).

Thus, the sheriff’s department authorized the home search practice by judges, and apparently continues to authorize the unconstitutional practice, in total disregard of West Virginia law, not to mention the U.S. Constitution. If only the voters of Raleigh County had some way of holding their government officials accountable…..

Gibson-Response-Raleigh-County-PDFDownload

Here are the deposition transcripts for both deputies:

Stump-DepDownload
McPeake-DepDownload

Federal Judge Finds a Pattern of Illegal Drug Task Force Search Warrants in West Virginia

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Reuters reported a few days ago on a recent set of court orders from a federal judge in West Virginia finding a troubling pattern of illegal search warrants obtained by drug task force officers.

In December, Goodwin issued an order suppressing evidence seized from a house in 2021. The judge questioned the accuracy of certain statements made by law enforcement in an affidavit to obtain a search warrant of the defendant’s house. The government has since filed a new indictment.

After the judge issued the suppression order, the U.S. attorney’s office sent two investigators to interview the state magistrate judge who issued the search warrant. Goodwin said it was “improper” for investigators to seek such an interview and for the judge to entertain it.

“It is inherently intimidating to send federal officers to question a state magistrate judge,” Goodwin wrote, “and it is clearly out of bounds for the magistrate judge to provide the interview regarding his judicial decision-making in a matter pending before this court.”

Reuters published yet another article today expanding on the earlier report, noting that more than one federal judge in West Virginia, as well as a unanimous panel of the Fourth Circuit Court of Appeals found that this particular drug task force in West Virginia has been engaged in unconstitutional violations pertaining to search warrants.

Goodwin, in fact, has criticized the practices of the Metropolitan Drug Enforcement Network (MDENT) in particular in at least three other decisions since 2017, a review of court records shows. The MDENT is composed of officers from agencies including the Charleston Police and Kanawha County Sheriff’s Office, the Drug Enforcement Agency and the state police.

The judge tossed out evidence in a drug case last year, holding that the Charleston Police, MDENT, and a Kanawha County magistrate had again failed to respect constitutional limits on searches and seizures. The MDENT’s warrant was based on “unsourced and undescribed” information that someone was selling drugs and the discovery of three marijuana stems in the trash from that person’s home – which the judge said was clearly insufficient.

“I fear this is becoming a pattern,” Goodwin wrote on April 28, 2021, pointing to a similar ruling in another MDENT case from a week earlier.

The MDENT has also been admonished for what courts described as open and purposeful disregard of the legal limits on searches and seizures by at least one other judge of the Southern District of West Virginia, and in a unanimous opinion by the 4th U.S. Circuit Court of Appeals.

This is the same federal court who presided over the Keith Sizemore case I litigated, where the Court denied a police officer qualified immunity in a civil rights lawsuit for providing false information in a search warrant application.

What you’re about to see, demonstrated in black and white courtesy of the federal judiciary, is proof of a pattern and practice of police misconduct. This is a documented pattern of Fourth Amendment violations, where drug task force officers knowingly violate the Constitution, with the complicity, or ignorance, of multiple state-level magistrate judges, who are not required to have law degrees to hold office, and who generally don’t. Moreover, many times the state-level magistrates, elected in countywide elections, are themselves retired law enforcement officers.

West Virginia is in serious need of search warrant reform. By the way, federal investigators in West Virginia, so I’m told, are required to go to Circuit Court judges, rather than magistrates, in federal criminal investigations in West Virginia.

Here’s the Court’s ruling on the motion for reconsideration in the case of U.S. v. Lark, as cited in the Reuters article:

United States v Lark SD WVa 2022Download

Here’s the original suppression order which the government was seeking reconsideration in the Lark case. Note that the federal prosecutors here are not interested in actually having the Court reconsider the admissibility of the evidence, but rather solely with the career prospects of the police officer found by the federal judge to have provided false information in a search warrant application:

United States v Lark SD WVa 2021Download

Here are the other suppression orders to which the Court referred in the Lark orders, of which I’m aware.

United States v Terry (1)Download
United States v TerryDownload
United States v CooperDownload
United States v ColemanDownload
United States v NelsonDownload

Here’s the suppression order from the Keith Sizemore case, to which I referred earlier. This was the criminal case:

SizemoreSuppressionOrderDownload

And here’s the opinion from the subsequent civil lawsuit. Note that this was a different drug task force than is featured in the other opinions, but same federal Court, and same underlying issues:

SizemoreMemorandumOpinionAndOrder(Defendant’sMTD)Download

It would be interesting to find out if a single one of these police officers who were determined by the federal judiciary to have provided false information in a search warrant application were ever thereafter placed on a “Brady List” for disclosure to criminal defendants in cases involving these officers…..

Update, 3/17/22: The West Virginia Record reported that the U.S. Attorney for the Southern District of West Virginia has an open investigation into the matter.

Deanna Eder, public affairs officer for Thompson, declined to comment in the pending case. But she did issue a statement to The West Virginia Record about Goodwin’s concerns.

“Upon taking office on October 13, 2021, U.S. Will Thompson began a thorough review of all of his office’s policies and procedures to determine what, if any, changes were needed,” Eder told The Record. “The United States Attorney served as a state circuit court judge for almost 15 years prior to his role as U.S. Attorney and brings that experience analyzing constitutional and suppression issues to the U.S. Attorney’s Office.

“As a result of his review of policies and procedures, and prior to the order in the Lark case, U.S. Attorney Thompson implemented a new process for reviewing search warrant applications. The U.S. Attorney’s Office has reviewed the court’s order in the Lark matter and takes the Court’s concerns seriously.”

6th Circuit Denies Qualified Immunity for Arrest of Man Wearing “F” the Police Shirt

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In 2016, police officers in Ohio pulled a man out of a crowd because he was wearing a “F” the police T-shirt, taunted him about the shirt, and ultimately arrested him under a “disorderly conduct” law. A few days ago, the Sixth Circuit issued an opinion denying qualified immunity to these officers in the pending civil rights lawsuit. I recently discussed a West Virginia case where police apparently thought they had the power to be the language police. This has been a widespread problem for many years. It’s not really that the police have sensitive ears, or that they’re concerned about the sensitive nature of innocent bystanders. It’s about respecting what they perceive to be their authority, as well as for use as a pretext to harass or detain people who are relevant to their interests.

The Court emphasized once again that it’s illegal for police officers to arrest people for using profane language alone, including the “F” word:

“The fighting words exception is very limited because it is inconsistent with the general principle of free speech recognized in our First Amendment jurisprudence.” Baskin v. Smith, 50 F. App’x 731, 736 (6th Cir. 2002). Therefore, “profanity alone is insufficient to establish criminal behavior.” Wilson v. Martin, 549 F. App’x 309, 311 (6th Cir. 2013)….

Further, both the Supreme Court and this court have made clear that “police officers . . . ‘are expected to exercise greater restraint in their response than the average citizen.’” Barnes v. Wright, 449 F.3d 709, 718 (6th Cir. 2006) (quoting Greene, 310 F.3d at 896). “Police officers are held to a higher standard than average citizens, because the First Amendment requires that they ‘tolerate coarse criticism.’” D.D., 645 F. App’x at 425 (quoting Kennedy, 635 F.3d at 216); see also City of Houston v. Hill, 482 U.S. 451, 462–63 (1987) (“The freedom of individuals verbally to oppose or to challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”)….

We have routinely protected the use of profanity when unaccompanied by other conduct that could be construed as disorderly. See Sandul, 119 F.3d at 1255 (“[T]he use of the ‘f-word’ in and of itself is not criminal conduct.”)….

We therefore conclude that the First Amendment protected Wood’s speech and thus his disorderly conduct arrest lacked probable cause. This conclusion is consistent with those of other circuits to have considered similar issues. See Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003) (“[T]he First Amendment protects even profanity-laden speech directed at police officers. Police officers reasonably may be expected to exercise a higher degree of restraint than the average citizen and should be less likely to be provoked into misbehavior by such speech.” (citing City of Houston, 482 U.S. at 461)); United States v. Poocha, 259 F.3d 1077, 1082 (9th Cir. 2001) (holding that yelling “fuck you” at an officer was not likely to provoke a violent response and “[c]riticism of the police, profane or otherwise, is not a crime”); Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (plaintiff’s “use of the word ‘asshole’ could not reasonably have prompted a violent response from the arresting officers”).

The Court denied Qualified Immunity to the officers, finding that the case law was full of similar examples of illegal arrests, where officers were found to have violated constitutional rights by making similar arrests, including in cases out of Ohio, where this incident occurred. As the U.S. Supreme Court has held, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state,” a “conclusion [that] finds a familiar echo in the common law.”

Not only did the Sixth Circuit find that the officers had committed a false arrest in violation of the Fourth Amendment, but they also likely committed the civil rights violation of First Amendment retaliation. The three general elements of a First Amendment Retaliation claim are that:

  1. “that he engaged in constitutionally protected speech,”
  2. “that he suffered an adverse action likely to chill a person of ordinary firmness from continuing to engage in protected speech,” and
  3. “that the protected speech was a substantial or motivating factor in the decision to take the adverse action.”

[T]he defendants do not contest that Wood’s shirt was constitutionally protected speech, nor could they. Wood’s “Fuck the Police” shirt was clearly protected speech. “It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’” Sandul, 119 F.3d at 1254–55 (alterations omitted) (quoting Cohen, 403 U.S. at 26)…..

Here, police officers removed Wood from a public event under armed escort. That act was neither “‘inconsequential’ as a matter of law,” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 585 (6th Cir. 2012), nor just a “petty slight[] or minor annoyance[],” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. Wood satisfies the adverse action element….

While the defendants argue that they removed Wood from the fairgrounds because he was filming people, Wood alleges that Blair walked up to him flanked by the defendants and yelled “Where’s this shirt? I want to see this shirt.” DE 55-2, Wood Dep., Page ID 468. As the officers surrounded Wood and escorted him from the building, one of them said to Wood, “You’ve been given an order to vacate the property. So you’re leaving.” Troutman Cam #1, 00:32–35. While walking Wood through the fairgrounds, with Wood repeatedly questioning whether the defendants had taken an oath to uphold the Constitution, one of the officers said they were “escorting . . . [Wood] to the front gate.” Johnson Cam 2:29–35. And while en route to jail, one officer said to Wood, “How’s that work? You got a shirt that said, ‘f the police,’ but you want us to uphold the Constitution?” Troutman Cam #2, 17:15–21. A reasonable jury, considering these facts, could conclude the officers were motivated to surround Wood and require him to leave in part because he wore a shirt that said “Fuck the Police.” We reverse the grant of summary judgment to the defendants on this claim.

Thus the case was sent back to the trial court so that the case could proceed to jury trial. You would think that police agencies and officers would get the memo by now that profane language alone doesn’t somehow trigger martial law….

11th Circuit: Officer Granted Qualified Immunity After Shooting Innocent Homeowner at Wrong Address

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In June of 2016 in Henry County, Georgia. Police sergeant Patrick Snook arrived at the wrong house and shot and killed the innocent homeowner, William David Powell, standing in his driveway. Sharon Powell, his wife, fled a federal civil rights lawsuit alleging excessive force against the officer. The Northern District of GA ultimately granted Summary Judgment in favor of the officer, granting him qualified immunity from standing trial in the civil case. She appealed to the 11th Circuit, which issued a published opinion on February 8. Here’s the full opinion, which you should read. Below I will post my takeaways and the basic law on police shootings.

An officer may use deadly force when he:

(1) “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others” or “that he has committed a crime involving the infliction or threatened infliction of serious physical harm;” 

(2) reasonably believes that the use of deadly force was necessary to prevent es- cape; and 

(3) has given some warning about the possible use of deadly force, if feasible. 

Quoting Tennessee v. Garner, 471 U.S. 1, 11-12 (1985).

This case focused on “Garner Factor” number 3. Is an officer required, as a bright line rule, to issue a warning prior to firing at a homeowner who appears with a gun? The Court held no. Only if “feasible.”

On the subject of warnings, we “have declined to fashion an inflexible rule that, in order to avoid civil liability, an officer must always warn his suspect before firing — particularly where such a warning might easily have cost the officer his life.” Penley, 605 F.3d at 854 n.6 (cleaned up); see also Carr v. Tatangelo, 338 F.3d 1259, 1269 n.19 (11th Cir. 2003). And the Supreme Court has instructed us that a plaintiff “cannot establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.” City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (quotation marks omitted)…..

While it’s clear that in some circumstances an officer must warn before using deadly force where it’s feasible to do so, Garner, 471 U.S. at 11–12, decisions addressing how soon an officer is required to give a warning to an unarmed suspect do not clearly establish anything about whether or when a warning is required for armed suspects raising a firearm in the direction of an officer. See Garner, 471 U.S. at 4, 21 (unarmed teen burglary suspect); Perez, 809 F.3d at 1217 (unarmed man lying on his stomach); Lundgren, 814 F.2d at 603 n.1 (store owner who did not threaten the officer with a weapon). There is no obviously clear, any-reasonable-officer-would-know rule that when faced with the threat of deadly force, an officer must give an armed suspect a warning at the earliest possible moment. See White, 137 S. Ct. at 552 (concluding, where late-arriving officer shot armed suspect without giving a warning, it was not an obvious case under Garner’s general principles). Instead, what’s clearly established is that it “is reasonable, and therefore constitutionally permissible, for an officer to use deadly force when he has probable cause to believe that his own life is in peril.” Tillis v. Brown, 12 F.4th 1291, 1298 (11th Cir. 2021) (quotation marks omitted). 

https://media.ca11.uscourts.gov/opinions/pub/files/201913340.pdf

But see, Betton v. Belue, 942 F.3d 184 (4th Cir. 2019), from the Fourth Circuit, which was almost identical factually, but came out the other way. The difference? There was a factual dispute regarding whether the homeowner pointed the gun at the officer. That small detail probably made the difference, as the Court had to assume that the homeowner did not point the gun.

If Officer Belue or another officer had identified themselves as members of law enforcement, Officer Belue reasonably may have believed that Betton’s presence while holding a firearm posed a deadly threat to the officers. Cooper , 735 F.3d at 159 ; Elliott , 99 F.3d at 644. And had Betton disobeyed a command given by the officers, such as to drop his weapon or to “come out” with his hands raised, Officer Belue reasonably may have feared for his safety upon observing Betton holding a gun at his side. See, e.g. , Sigman v. Town of Chapel Hill , 161 F.3d 782 (4th Cir. 1998) (officer was justified in using deadly force after suspect failed to obey command to stop advancing toward officer while carrying a knife). However, under our precedent, Officer Belue’s failure to employ any of these protective measures rendered his use of force unreasonable.

SCOTUS Issues Two Qualified Immunity Opinions this Week

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This week the Supreme Court issued two separate rulings in qualified immunity cases involving allegations of excessive use of force by police officers. One out of the 9th circuit, involving an officer placing a knee on a suspect’s back for 8 seconds, and a second one involving a suspect who was shot and killed by police officers while charging at an officer with a hammer.

You may have seen the headlines around the interwebs about the SCOTUS strengthening qualified immunity in these two cases, or somehow changing the law in favor of the police. Is this the case? Since excessive force cases are my favorite, let’s go through these together. #QualifiedImmunity #ExcessiveForce #SCOTUS Freedom is Scary Ep. No. 78 (prerecorded, but scheduled to play at 10/20 at 8:00 p.m. ET)

Petition for Rehearing En Banc Filed in the Walker Case

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Here’s the Petition for Rehearing and Petition for Rehearing En Banc we filed yesterday in the Walker AR-15 open carry case, which will give effectively stay the case while the other judges on the Fourth Circuit have an opportunity to review our petition and consider whether to get involved.

If the Panel Opinion remains, Black is meaningless, because there will always be “more” available to any police officer. Even if an individual has violated no law, they will be subject to detainment based on any speculative crime which generally could be committed by any anonymous person. A man walking in the direction of any woman might be a rapist, given that he would appear to have the physical ability to carry out a rape. Any driver of a car heading in the direction of any other human being might be a potential murderer, because they appear to have the physical ability to run-over people, should they so choose. The analogies could go on and on because, like the Michael Walker case, these scenarios are all generalized, rather than based on individualized reasonable suspicion. 

Deputy Donahoe did, and claims to have done numerous other times, exactly that which Black forbade: to assume that being a felon in possession of a firearm was the default status; that, without more, he could detain and ID anyone he saw with a firearm. He admitted that he had no information that Walker may have been a prohibited person. (J.A. 162:5-8). Donahoe admitted under oath that had no indications that Mr. Walker was a threat to anyone, nor appeared to have any ill intentions (J.A. 167:1-4). Donahoe told Mr. Walker at the beginning of the stop, “At this point, I have the absolute right to see whether you’re legal to carry that gun or not.” (See J.A. 209 – Video of Incident). 

The District Court acknowledged that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Black, 707 F.3d at 540 (J.A. 326). There was no “more.” Walker had committed no crime. He wasn’t observed committing a crime. Not a single person alleged that a crime was committed by Michael Walker. To allow a police officer’s subjective fear of AR-15s, or of theoretical copycat crimes, to be utilized as “more,” effectively swallows the rule. This opens the door to racial profiling, and so on. To allow the Panel Opinion to stand is to unravel Black, and important civil rights protections.

Updates on the Drug Task Force Search Case and the Family Court Search Case

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On Friday we filed a lawsuit against Putnam County and the individual members of their “SEU” – Special Enforcement Unit – for an illegal search of a family’s residence in Putnam County, West Virginia in April of 2019. These were the same guys from the Dustin Elswick video. Here’s the full complaint (sorry it was omitted earlier, but NOW here it is):

Then this morning we received motions to dismiss from the defendants in the Family Court Judge Search case. Here’s the memorandum arguing for dismissal for the judge, based on judicial immunity, and somewhat surprisingly, the 11th Amendment:

Lastly, here’s the memorandum arguing for dismissal for the county and the deputies, arguing qualified immunity:

We’ll go through these in tonight’s live video update in Freedom is Scary, Episode No. 58. Join me live at 6:30 p.m. ET: