Recently we filed a federal civil rights lawsuit in federal court, alleging that Parkersburg, West Virginia police officers were caught on video setting up the false arrest of a man for allegedly committing battery on a police officer. Fortunately there was surveillance footage, which was shown at the man’s jury trial, resulting in his acquittal. Warrantless arrests require the existence of probable cause. If no probable cause exists, for instance in the event that the arresting officers themselves create the alleged nonexistent crime, the Fourth Amendment is violated. “False arrest” is basically a type of unreasonable search and seizure.
Here’s the complaint, and the video will follow shortly:
Just a few minutes ago, the West Virginia Supreme Court issued their opinion in the Family Court Judge search case, censuring Judge Louise Goldston for performing an illegal search at the home of a litigant – my client, Matt Gibson. Though the Court elected not to raise the recommended fine of $1,000, the Court declined to opt for the less-serious written “reprimand.” Thankfully, the Court dismissed the Family Court Judicial Association’s arguments that Family Court judge have the power to engage in home searches disguised as “home views”:
We begin with a threshold question: Did Judge Goldston view the ex-husband’s home, or did she search it? We find that she searched it. A “view” is “the act or proceeding by which a tribunal goes to observe an object that cannot be produced in court because it is immovable or inconvenient to remove….”
We agree that the ex-husband’s home was “immovable” and certainly “inconvenient” to produce in court. View, BLACK’S LAW DICTIONARY (11th ed. 2019). However, Judge Goldston did not go to the property to observe the ex-husband’s house; she went there to locate and seize certain of its contents—pictures, DVDs, and other items of personal property. These items of personal property were not “immovable or inconvenient to remove” from the home. Ibid. In fact, the ex-wife removed many of these items during the so-called “view.” Accordingly, we find that Judge Goldston’s actions at the residence were not a view.
On the contrary, the record is clear that Judge Goldston went to the property to locate things, not simply to observe them. Her own words support this conclusion. When the ex-husband demanded a list of what she was seeking, she appeared to reply, “[y]ou have a list of everything [unintelligible] attached to the order.” When the ex- husband professed not to “know where some of it’s at[,]” she replied, “Well, we’re gonna find it.”
Looking for things is a “search” by any sensible definition of the term. As the United States Supreme Court stated in Terry v. Ohio, 392 U.S. 1, 16 (1968), “it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search’”.
Searches are an activity of the executive department. State ex rel. Parma Cmty. Gen. Hosp. v. O’Donnell, 2013-Ohio-2923, ¶ 7 (stating that “searches are executive in nature.”). “Indeed, searches are so quintessentially executive in nature that even a judge who participates in one acts ‘not * * * as a judicial officer, but as an adjunct law enforcement officer.’” State ex rel. Hensley v. Nowak, 52 Ohio St. 3d 98, 99, 556 N.E.2d 171, 173 (1990)….
In light of these clear prohibitions, we hold that the West Virginia Constitution forbids a judicial officer to participate in a search because a search is an exercise of executive power. W. Va. Const. art. 5, § 1. Because Judge Goldston plainly engaged in such a search, we find that the so- called “view” was improper.
This morning a federal judge denied the motion to dismiss filed by Putnam County, who had asked the Court to dismiss the first of several lawsuits filed against Putnam County for a pattern and practice of illegal searches by their “Special Enforcement Unit,” who were caught on video searching the inside of my client Dustin Elswick’s home, which you may have seen on Youtube.
Usually in federal civil rights lawsuit, you are required to sue the individual government employee or officer who engaged in the violation. However, under the Supreme Court’s ruling in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), counties and cities (i.e., political subdivisions) may be sued directly when they have adopted some policy or practice which authorizes a constitutional violation against citizens by police officers. These are known as “Monell Claims” and they are very difficult to prove, generally. So they are pretty routinely dismissed. I’m happy this one wasn’t. Presumably the other two cases just like it will also be allowed to proceed…..
The Complaint’s other allegations include that PCC purposely established and operated the the SEU and knew of and condoned the SEU officers repeated constitutional violations. Id. ¶ 51. This alleges that the PCC was the “moving force” behind the constitutional violations where it deliberately created a unit of officers who did not comply with procedural safeguards and engaged in constitutional violations. See Bd. of Ctny. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (quoting Monell, 436 U.S. at 694).
Here’s the Court’s memorandum order and opinion allowing the case to proceed:
The lawsuit was filed today on behalf of Dustin Elswick, against Putnam County, West Virginia, along with four police officers involved in the infamous “Special Enforcement Unit.” These are the cops who were caught on hidden camera searching the inside of Dustin’s home. Although they cut the wire on an outside surveillance camera, they were apparently unaware of the cameras inside the home.
This is a federal “Section 1983” lawsuit alleging the violation of federal constitutional rights; namely, the Fourth Amendment right to be free from unreasonable search and seizure. A warrantless search of your home is automatically unconstitutional in the absence of one of two exceptions: consent, or exigent circumstances (emergency), neither of which apply here. Two prior federal lawsuits have already been filed against the SEU thus far for similar allegations in the Johnson case, as well as the Dillon case. The remedy is an award of money damages, along with reasonable attorney fees and expenses.
There was an internal investigation, as the news reported, but we never received information about the outcome. That sheriff has since been replaced.
This week we filed a second federal civil rights lawsuit against the Putnam County, West Virginia so-called “Special Enforcement Unit.” This is the same “SEU” guys who were featured in the Dustin Elswick video. This case features one of the victims who came forward after the Elswick video became public.
It involves a young man who was visiting a friend’s house, on his way to go fishing. The SEU just happened to raid his friend’s home, without a warrant, keeping my client in handcuffs for an extended period of time while they searched the house. Apparently they found a small amount of pot in the friend’s house and a couple hundred dollars in cash, which they took. No paperwork documenting the event was ever provided in response to our FOIA requests. There were no criminal charges.
We’re alleging multiple civil rights violations, including unreasonable search and seizure and excessive force, in violation of the Fourth Amendment. Here’s the Complaint, in full.
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.
The saga of the Family Court Judges attempting to sway justice in the case of the Family Court Judge Search Case continues. As I already posted about, I sent a FOIA request to the Family Court Judicial Association to ascertain, among other things, who actually voted to engage in this conduct. Their lawyer responded, as I expected, denying that they are accountable to the public via FOIA:
So this is like saying that any group of government officials can just form their own “voluntary association” and then conduct business pertaining to their official jobs, and even use their government employees, emails, and so on, and yet avoid FOIA accountability. We’ll have to see about that.
Here are some of the recent filings flying back and forth in their efforts at intervening in the pending disciplinary matter involving Judge Goldston:
This past Thursday, on June 24, the Fourth Circuit quietly issued an en banc opinion in “Leaders of a Beautiful Struggle v. Baltimore Police Department, which challenged the Baltimore Police Department’s Aerial Investigation Research (AIR) pilot program on Fourth Amendment grounds. In an opinion written by Chief Judge Roger Gregory, the Court held that the AIR mass aerial surveillance program was an unconstitutional search and seizure (at least at the point the data was accessed).
The AIR program “tracks every movement” of every person outside of a structure in the City of Baltimore, retaining 45 days worth of data which is a “detailed, encyclopedic” record of where everyone came and went within the city during daylight hours. Law enforcement can “travel back in time” to observe a target’s movements, forwards and backwards. The Court likened the data to “attaching an ankle monitor to every person in the city,” and noted that, “whoever the suspect turns out to be, they have effectively been tailed for the prior six weeks.”
The Court held that “because the AIR program opens “an intimate window” into a person’s associations and activities, it violates the reasonable expectation of privacy individuals have in the whole of their movements.” Whereas traditional aerial or static camera surveillance have been upheld as reasonable by the courts, those cases “all involve some discrete operation surveilling individual targets.”
The AIR program records the movements of a city. With analysis, it can reveal where individuals come and go over an extended period. Because the AIR program enables police to deduce from the whole of individuals’ movements, we hold that accessing its data is a search, and its warrantless operation violates the Fourth Amendment.
Opinion at p. 28
The AIR program is like a 21st century general search, enabling the police to collect all movements, both innocent and suspected, without any burden to “articulate an adequate reason to search for specific items related to specific crimes.
Opinion at p. 32
Since this holding came from the Fourth Circuit sitting en banc, the only where to go from here is to the U.S. Supreme Court.
This is absolutely outrageous. Apparently, there’s a secret society style organization of Family Court judges in West Virginia, who held a meeting and signed a resolution asking the West Virginia Supreme Court to fire the judicial disciplinary counsel prosecutors, who are currently engaged in the disciplinary prosecution of Judge Goldston in what has been termed the “Family Court Judge Search Case.” This was then leaked to the media by the judges, none of whom would agree to go on the record, but rather opted to work from the shadows.
Today we filed suit in the case of the “Outlaw Barber,” Winerd “Les” Jenkins, a 73 year old combat veteran and former 27-year Deputy U.S. Marshall, who was arrested for refusing to close his barbershop during the Governor’s lockdown in April of 2020. We filed a Section 1983 civil rights lawsuit in federal court, in the Northern District of West Virginia.
When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.
His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.
He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer. The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order.
We asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. It’s already been assigned a case number. Read it for yourself: