Brand-new police body-cam footage shows an outrageous detainment and arrest of an innocent guy shopping in Walmart with his poor toddler. I break it down, explain some of the relevant law, and show what happened. This couldn’t have gone much worse. Multiple Fourth Amendment violations….. and then there’s Walmart.
Reasonable suspicion is required to perform an investigative detention. Probable cause is required to perform a warrantless arrest. The “Graham Factors” are assessed to analyze the legality of the use of force which occurred. I’d guess the police here will fail miserably on all three.
Police officers with the Chicago PD traumatize a nude woman, who was just minding her own business in her home, which is caught on Video via bodycams. Her lawyer then dismisses her case because he misunderstood the law. Oops. You may have seen this case in the news, but I go behind the headlines and examine the incompetence not reported in the news, and explain what the law is for civil rights lawsuits following search warrant cases where there’s a wrong address and plain ‘ole incompetence.
You have to either allege that the warrant was invalid, or if that can’t be done, you have to attack the affidavit supporting the warrant. To succeed, Plaintiffs must prove Defendants “deliberately or with a ‘reckless disregard for the truth’ made material false statements in [their] affidavit” which were necessary to the magistrate’s finding of probable cause. Miller, 475 F.3d at 627 (quotingFranks v. Delaware, 438 U.S. 154, 155–56 (1978). Or, Plaintiffs must show Defendants omitted “material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.’” Id.
“To determine materiality, a court must excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit would establish probable cause.” Id. (internal quotations removed). “If the ‘corrected’ warrant affidavit establishes probable cause, no civil liability lies against the officer.”
“Reckless disregard can be established by evidence that an officer acted with a high degree of awareness of a statement’s probable falsity,” meaning an officer had “serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. (internal quotations removed). For omissions, “reckless disregard can be established by evidence that a police officer failed to inform the judicial officer of facts [he] knew would negate probable cause.” Id. (internal quotations removed). However, negligence or innocent mistake “will not provide a basis for a constitutional violation.” Id. (quoting Franks, 438 U.S. at 171).
Last Thursday, the ATF raided Polymer80 in Nevada, a seller of so-called “Ghost Gun” 80% kits for the home-manufacture of polymer pistols for personal use. The word on the street is, that they’ve been contacting customers. So what rights do you have if you’re a customer and the ATF comes knocking?
When law enforcement and/or code enforcement come into your business to enforce unconstitutional covid restrictions, or even duly enacted criminal statutes, can you kick them out? Do they need a warrant?
One of the issues I’ll be litigating against the West Virginia Governor tomorrow morning in federal court, is whether his mask mandate and threats of arrest and business closure are unconstitutional because they order and encourage violation of the Fourth Amendment.
The Supreme Court long has recognized that the Fourth Amendment’s prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. See v. City of Seattle, 387 U.S. 541, 543, 546, 87 S.Ct. 1737, 1739 1741, 18 L.Ed.2d 943 (1967). An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable, see Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). This expectation exists not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative inspections designed to enforce regulatory statutes. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-313, 98 S.Ct. 1816, 1820-1821, 56 L.Ed.2d 305 (1978).
There may be some exceptions for heavily regulated business, such as coal mines. In Lesueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261 (4th Cir. 2012), the Fourth Circuit held that public officials may conduct warrantless searches of coal mines in Virginia, pursuant to the authorization to do so in Virginia’s Mineral Mine Safety Act, Va. Code Ann. 45.1-161.292:54(B), only because mining is a “heavily regulated industry” and because “certain conditions are met.” These conditions, set forth in the Supreme Court case of New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636 (1987), require that such an inspection program “provide a constitutionally adequate substitute for a warrant.” Id. at 702. The Fourth Circuit applied the Supreme Court’s holding in New York v. Burger, requiring a statutory program in place to be subjected to analysis. See generally, New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). This could, and probably does, create an issue area around restaurant regulation. We shall see…..
The Civil Rights Lawyer explains how to handle a traffic stop – a discussion on constitutional law issues surrounding traffic stops and gives commentary on Do’s and Don’ts for both drivers and police officers during the course of traffic stops. TUE 10/27 at 6pm.
Set your reminder, notifications, and subscribe. Bring your experiences, your issues, and your questions, live for Freedom is Scary Live Episode No. 22. This will somewhat of a continuation from FIS No. 21, since so many issues arise in the context of traffic stops. Firearms, searches, lying….. lots of issues and topics.
Yesterday afternoon we filed a federal civil rights lawsuit against the police officers involved in the viral video showing police (without a warrant) forcing my client, James Walkup, to crawl to his own front door, only to have his head smashed with a boot on his front porch. If you haven’t seen the video, here it is:
This happened in the Western end of Greenbrier County, West Virginia. And here’s the filed lawsuit, now pending in the Beckley Division of the Southern District of West Virginia. We made claims for unlawful search and seizure, as well as use of excessive force. The defendants are one Rainelle, WV police officer and two West Virginia State Troopers.
LIVE – Freedom is Scary Episode No. 21, on the Fourth Amendment protections, or lack thereof, surrounding police officers searching and seizing pedestrians and vehicle occupants during traffic stops.
Mentioned in the video:
“All power is vested in, and consequently derived from, the people; […] magistrates are their trustees and servants, and at all times amenable to them.”
– George Mason
On “Consensual Encounters:” As a general matter, police officers are free to approach and question individuals without necessarily effecting a seizure. Rather, a person is seized within the meaning of the Fourth Amendment “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. (quotingTerry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Such a seizure can be said to occur when, after considering the totality of the circumstances, the Court concludes that “a reasonable person would have believed that he was not free to leave.” Id. (quotingUnited States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989)). Similarly, when police approach a person at a location that they do not necessarily wish to leave, the appropriate question is whether that person would feel free to “terminate the encounter.” SeeFlorida v. Bostick, 501 U.S. 429, 436 (1991). “[T]he free-to-leave standard is an objective test, not a subjective one.” United States v. Analla, 975 F.2d 119, 124 (4th Cir. 1992).
What is Reasonable Suspicion?
Reasonable suspicion is a “commonsense, nontechnical” standard that relies on the judgment of experienced law enforcement officers, “not legal technicians.” See Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (internal quotation marks omitted). To support a finding of reasonable suspicion, we require the detaining officer “to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.” See United States v. Foster, 634 F.3d 243, 248 (4th Cir.2011). (United States v. Williams, 808 F.3d 238 (4th Cir. 2015)).
What is Probable Cause?
Probable cause exists when the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is com- mitting, or is about to commit an offense.” – Michigan v. DeFillippo (SCOTUS 1979).
Length of Stop?
It is now settled that when a lawful traffic stop is made, “an officer … to gain his bearings and … acquire a fair understanding of the surrounding scene … may request identification of … [vehicular] passengers….” United States v. Soriano–Jarquin, 492 F.3d 495, 500 (4th Cir.2007); see also Branch, 537 F.3d at 337 (“If a police officer observes a traffic violation, he is justified in stopping the vehicle for long enough to issue the driver a citation and determine that the driver is entitled to operate his vehicle.”); United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004) (“[D]uring a routine traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation.”)….. “Additionally, ‘a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.’ ”) (quoting [963 F.Supp.2d 591] Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). U.S. v. Taylor, 963 F.Supp.2d 580 (S.D. W.Va. 2013).
In the context of traffic stops, police diligence encompasses requesting a driver’s license and vehicle registration, running a computer check, and issuing a ticket. If a police officer seeks to prolong a traffic stop to allow for investigation into a matter outside the scope of the initial stop, he must possess reasonable suspicion or receive the driver’s consent. However, “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” U.S. v. Mason, 628 F.3d 123, 131, quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009). “Direct[ing] one minute of  questioning to the passenger [of the stopped vehicle] does not alter the calculus.” Id. at 132 (emphasis in original).
Additionally, “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). That rule, the justification for which is officer safety, extends to passengers, as well. Wilson, 519 U.S. at 414–15, 117 S.Ct. 882. (United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012)).
[The officer] may take other actions that do not constitute “searches” within the meaning of the Fourth Amendment, such as conducting a dog-sniff of the vehicle, Caballes, 543 U.S. at 409, 125 S.Ct. 834, but again only “so long as those inquiries [or other actions] do not measurably extend the duration of the stop.” Johnson, [555 U.S. at 333] 129 S.Ct. .
This is a video about an encounter at the home of my client, Matt, in March of 2019, which occurred in Charmco, West Virginia, which is in Greenbrier County. It shows police arriving at his home to arrest a friend who was visiting him, who happened to have an outstanding warrant.
Matt didn’t want to be involved one way or the other. He was afraid, so he turned on his phone and began recording and he laid down. He didn’t want to get shot. But they forced him to crawl to the door on his hands and knees. When he got there, he got head-stomped by the first officer.
They didn’t know he was recording. The second officer, a West Virginia State Police trooper, noticed the phone filming, and he covered it with his hands, and turned the phone off. The officers then deleted the video footage. But it was recovered.
On with me tonight on Freedom is Scary, Episode 18, live, is Benjamin Hatfield, Esq., the Republican Nominee for Prosecuting Attorney of Raleigh County, West Virginia. Most state level prosecutors are elected politicians with party affiliations. They are enormously powerful, as demonstrated by the Rittenhouse and McCloskey cases. You can watch read here on this Youtube link, or on our Facebook page using Facebook Live. It will be simultaneously streamed to both. You can also submit comments and/or questions on both platforms.
In this video we’ll discuss what you need to know before voting for or supporting a prosecutor candidate. There is a reason George Soros is funding radical left-wing prosecutors around the country. Prosecutors hold the keys to the criminal courtrooms, and can design prosecutions to further their social justice and radical anti-gun and anti-freedom agendas – long before they reach the judiciary. Is there a difference between Democrat and Republican prosecutors? I’ll answer that question with another question: is there a difference in the Democrat and Republican platforms in regards to a law abiding citizen defending themselves, or their homes, with firearms?
This is an urgent situation for all of us now. Join me LIVE with special guest, Benjamin Hatfield, Esq., the Republican Nominee for Prosecuting Attorney of Raleigh County, West Virginia (Beckley, WV), who is running against a career Democrat prosecutor, who hasn’t had a contested election in over a decade, and who has been a prosecutor there since 1983. The law abiding citizens there are suffering.
Hatfield is a former assistant prosecutor in that county, and currently works as a civil litigation attorney at a private law firm. If you’re in West Virginia, and if you’re anywhere near Raleigh County, you may have seen some of the issues occurring there recently. You want to pay close attention to this race, and I encourage you to take a hard look at Mr. Hatfield, and then do whatever you can to help him. Because your liberty may count on it. Tune in to see why and to ask questions.
If you can send any financial help his way, donations can be sent to the “Committee to Elect Benjamin Hatfield,” PO Box 5241, Beckley, WV 25801.
Update: Here’s the article on Soros funding the Trojan Horse prosecutors I referenced in the video:
After St. Louis erupted in violence, arson, and looting, Circuit Attorney Kim Gardner ($307,000) dismissed all charges against the 36 people arrested for that violence. In the last few days eight St. Louis police officers have been shot.
At the same time, Gardner rushed to file charges against Mark and Patricia McCloskey, the homeowners who brandished (but did not use) guns at protestors who had entered the private street where the McCloskeys reside.
In Chicago, Illinois State’s Attorney Kim Foxx ($817,000) refused to prosecute rioters who violated the curfew imposed to quell the violence. “The question it comes down to is, is it a good use of our time and resources? No, it’s not.” What does she think would be a better use of her time and resources?
You probably remember Foxx. She dismissed the charges against Jussie Smollett, the actor who reported a hate crime attack against himself that turned out to be bogus. A judge removed Foxx from the case and assigned a special prosecutor who filed six new charges.
Philadelphia District Attorney Larry Krasner ($1.7 Million) announced he won’t prosecute people arrested for the violence that rocked his city for days with widespread looting and many cars torched. His excuse for not holding the mob accountable for their violence was laughable. “Prosecution alone will achieve nothing close to justice—not when power imbalances and lack of accountability make it possible for government actors including police or prosecutors to regularly take life or liberty unjustly and face no criminal or career penalty….” San Francisco District Attorney Chesa Boudin ($620,000) is the beau ideal of the Trojan Horse prosecutors. “The criminal justice system isn’t just massive and brutal, it’s also racist,” according to Boudin…. In Portland, DA Mike Schmidt ($230,000) refuses to prosecute the rioters who have burned and looted his city for over 90 days straight…..
Since 2018, Soros has made Virginia the focus of his efforts. And it has paid dividends. Trojan Horse candidates have taken over five of the largest prosecutor’s offices in the Commonwealth: Fairfax, Arlington, Alexandria, Albemarle, Portsmouth, and Loudoun.
The West Virginia Supreme Court of Appeals has charged a Raleigh County Family Court judge of 26 years with at least seven alleged violations of the Code of Judicial Conduct, after she admitted to visiting the home of litigants to investigate a property dispute.
The SCOA formally charged Judge Louise E. Goldston on Sept. 23 with violations to rules on compliance with the law, confidence in the judiciary, avoiding abuse of prestige of office, impartiality and fairness, external influences, competence, diligence and cooperating and extrajudicial activities, in general.
Goldston hears cases in Raleigh Family Court and Wyoming County Family Court.
Another interesting update….. Apparently there was a public admonishment against another Family Court Judge, who was recently elected to the bench, for doing a “home visit” in two instances, though both of those included lawyers who either requested the visit, or failed to object. The judge in that case mentioned that he never would have performed them had someone objected, and blamed Judge Goldston (from the video):
Respondent opined that he believed it was proper to visit litigants’ homes because a colleague had engaged in the same practice for several years. (The colleague, who is also the subject of a judicial disciplinary proceeding, recently engaged in a visit to a litigant ex-husband’s home to search for….
Discussion with my client, Matt Gibson, on having his house searched by a judge:
I did three TV interviews on Monday. I’ve only seen one, this one, which I thought turned out well – brutally honest:
BECKLEY, WV (WVNS) — Impartiality and fairness, complying with the law, avoiding abuse of office. These are only three of the seven rules Judge Louise Goldston is charged with violating during an incident in March.
Goldston oversaw a divorce case involving Matt Gibson. In order to find items Gibson allegedly neglected to maintain or turn over to the court, his attorney, John Bryan, said Goldston reportedly stopped the hearing and ordered all parties to immediately go to Gibson’s house.
“From day one that I looked at that video, I didn’t see any way that that was legal,” Bryan explained.
Even though Gibson is representing himself in the divorce case, he did hire John Bryan for action taken against the judge after the at-home search.
“Apparently this has been going on for 20 years and at least 10 other times this was done upon the motion of an attorney without the object of the other attorney,” Bryan said. “And what does that tell me? That maybe they were scared to challenge the judge, to challenge the system. I don’t know. I think that there are a lot of questions there that need to be answered.”
Read the formal statement of charges and my analysis: