You’ve seen videos of cops executing warrants at the wrong home before. It’s a nightmare scenario – one of the most dangerous encounters we can have with our government. Police want the ability to come into a house with a team of men dressed and equipped like soldiers. But they also want to do so in an environment of total immunity, so that they can’t be sued when they make mistakes or act recklessly.
This just happened in Joliet, Illinois, where law enforcement invaded the wrong home. It also recently happened in my client in West Virginia. They came home to find cops on their surveillance footage walking around in their home, guns drawn. What happens when they invade the wrong home? Can you sue them, or can they get away with it?
On October 16, 2021, the life of Silvester Hayes was altered forever. That morning, Hayes woke up early and went out to get breakfast for his four young children. While driving to get their favorite meal, which was french toast from a restaurant only a few blocks away from their home, Silvester encountered two Dallas police officers. He did not return to his kids with breakfast. Now a lawsuit has been filed and the bodycam footage has been released.
The lawsuit alleges the existence of a Texas state law conferring a right to resist an unlawful arrest:
In Texas, the use of force to resist an arrest is justified: (1) if, before the actor offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s use or attempted use of greater force than necessary. Tex. Penal Code Ann. § 9.31.
Yesterday, the U.S. Fourth Circuit Court of Appeals issued a published opinion affirming the lower court’s denial of judicial immunity to former West Virginia Family Court Judge Louise Goldston. Judicial immunity cases are rare, so there’s no doubt that this one will be cited case law for many years to come. Procedurally, this means that the case now goes back to the trial court for a jury trial on the issue of money damages.
“The system here worked at every level,” John Bryan told The West Virginia Record. “The judicial disciplinary counsel, Teresa Tarr in particular, took immediate action, conducting a thorough investigation and then instituting formal charges, culminating in a state Supreme Court opinion that held Judge Goldston accountable. Without that, none of this would have happened. The Legislature also took action, forcing her into retirement due to her defiance following the Supreme Court opinion.
“And now here, the federal judiciary has made an example out of her that will keep rogue judges in check for decades to come.”
Here’s yet another video of police officers detaining or arresting a man’s wife, in order to coerce him into complying with their demands – whether legal or not. Last time, this happened in Georgia. But this time, we’re in Shawnee, Oklahoma. The Oklahoman originally reported on this incident and provided the video footage. Once again, most people misunderstand the application of the Fourth Amendment in and around the “curtilage” of a home.
Several people sent me this video from the Crime Scene Cam youtube channel, showing a young, entitled couple confronting cops over their parked cars, several of which are in the public roadway. They learn several lessons here. But the more important lesson is the interplay in Fourth Amendment rights when it comes to the public road, versus the curtilage of your home.
Yet again, the Arkansas State Police make the news for their aggressive use of PIT maneuvers during pursuits. This time they actually wrecked the wrong “4 door sedan.” They got the color and the number of doors right. But unfortunately, it was the wrong one. Nevertheless, they stand behind their aggressive PIT policy. Is there a federal constitutional violation when they do this, and injure an entirely different person than they were intending to injure?
This is footage of a 2019 arrest for failure to produce ID to a police officer. A car broke down; a mechanic was called, and showed up; some idiot thought it looked suspicious and called the cops; then the cops showed up and demanded ID. But the guy was busy and obviously annoyed that the cops are harassing him while he’s trying to help somebody. This interaction resulted in a civil rights lawsuit for false arrest. Originally, the officers were granted qualified immunity. But just last week, the 11th Circuit issued an opinion in the plaintiff’s appeal. Who was right? Was the mechanic illegally arrested?
Police officers around the nation continue to misunderstand the Fourth Amendment and the concept of reasonable suspicion. This footage was submitted by Nick Failla, showing his arrest in Cocoa, Florida several years back. He just recently obtained the bodycam footage.
Many cops believe that they get to forcibly ID anyone they encounter as a part of their job. They are taught that its policy to do this for officer safety reasons. We see it over and over again. In this particular video, the female officer, who is a supervisor, explains repeatedly to Nick that, because she’s a police officer conducting an investigation, Florida law allows her to obtain the ID of anyone she encounters – whether or not a crime is even alleged. Nick disagrees with her and asks repeatedly for an explanation of what crime he was alleged to have committed. Let me see if I can clear this up.
This is a common issue and is the subject of one of my most popular Youtube videos – a case currently being litigated in federal court, involving the arrest of my client in a West Virginia Walmart. When police officers encounter pedestrians, they could trigger an investigatory detention, which requires reasonable suspicion, or they could just be engaged in a consensual encounter, which requires nothing. It’s just a conversation.
Consensual encounters, i.e., a conversation, does not trigger the Fourth Amendment, and can be easily identified if the subject asks whether or not he’s free to leave. If the question isn’t asked, courts will look to the circumstances. Would a reasonable, regular person believe that he was NOT free to leave? Were emergency lights activated? Multiple police officers? Guns drawn? Put in handcuffs? Accused of criminal conduct? Told to show your hands? Told to get on the ground? Or was it just a conversation.
The question is whether a reasonable person would feel free to terminate the encounter. If the person was involuntarily detained by the officer, that constitutes a seizure under the Fourth Amendment, no matter how brief the detention or how limited its purpose.
If a detention occurs, the courts require the detaining officer to be able to articulate why a particular behavior is suspicious or logically demonstrate that the person’s behavior is indicative of some sinister criminal activity. It must be based on suspicion of illegal conduct. In other words, it cannot be based on suspicion of legal conduct, such as walking down a public sidewalk, or hanging out on top of your van with two women in a parking lot in front of a lake.
Here, there was clearly a detention. Therefore reasonable suspicion is required. Even in Florida, a police officer must have a particularized and objective basis for suspecting the person stopped of criminal activity.” United States v. Campbell, 26 F.4th 860, 880 (11th Cir. 2022) (en banc).
Here’s more footage of Officer Justin Peppers, from the Jacksonville Sheriff’s Office, courtesy of Jeff Gray, from Honor Your Oath Civil Rights Investigations. This is now the third video I’ve done on Officer Peppers. He’s the same guy I recently featured in a video where he’s punching a handcuffed arrestee. He’s also the same guy as I recently featured in the “Hey Mr. Black Man Video.”
Here’s Jeff’s video with additional footage, as well as details on the pending internal affairs investigations.
Here’s the use of force segment that was cut out from my video:
Andru Kulas was arrested by the Fort Collins Police Department in the early morning hours of August 29, 2021. He was pretty drunk and was expressing some criticism of the officers as they wrote him a citation for trespassing at a rooftop bar. When he refused the actual piece of paper, one of the officers attempted to shove it into his shirt pocket, which escalated the situation into the man being pepper sprayed at close range, among other things. He just filed a federal civil rights lawsuit.
