In May of 2019, Florida man Dillon Shane Webb was pulled over by Columbia County Sheriff’s Deputy Travis English, who objected to the sticker on the back window of Webb’s truck, which said, in all capital letters, “I EAT A**.” Deputy English ordered Webb to remove one of the letters during the traffic stop. Webb refused citing his First Amendment rights. But he was arrested and booked in jail for “obscene writing on vehicle” and “resisting an officer without violence.” Did he have a First Amendment right to have that sticker? Was the arrest unconstitutional? What happened to the criminal charges? Was there a lawsuit? If so, was it successful? You might be surprised…
Section 847.011(2) makes it a misdemeanor offense to possess
“any sticker, decal emblem or other device attached to a motor vehicle containing obscene descriptions, photographs, or depictions . . . .”
Florida law further defines “obscene” as material which
(a) The average person, applying contemporary standards, would find, taken as a whole, appeals to the prurient interest; (b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.
Fla. Stat. § 847.001(10).
Under section 843.02, Florida Statutes,
“[w]hoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . . .”
On March 18 at 1:15 a.m., the Calloway County Sheriff’s Department, in Kentucky, arrived at a private residence with an arrest warrant for a guy who did not reside at the residence, but whose vehicle was parked in the yard, undergoing maintenance by the homeowner. When the footage turns on, you’ll see police walking towards the husband slash homeowner. Then you’ll see the man’s wife come outside and ask for a warrant and also for the officers to leave the property.
This raises constitutional issues about whether law enforcement can enter and remain in someone’s front yard under these circumstances, where the home’s residents are present and asking them to leave. And where there is no arrest warrant for the home’s residents – nor a search warrant for that home? This also raises issues about whether police can detain those residents, including their guests, without their consent and in the absence of a search warrant? This is a common issue that most people misunderstand – especially police. Let’s look at this footage, which you haven’t seen anywhere else, and clear up the legal rights at issue.
NOTE: This footage was submitted anonymously and I really have no idea what the outcome was in the criminal case, or otherwise. One would hope that no convictions resulted from this, for reasons I explain in the video, as well as below….
Some of the applicable law discussed in the video:
According to the 1980 Supreme Court opinion in Payton v. New York, in order to legally arrest someone in a home, rather than in a public place, absent consent or exigent circumstances, police officers must have a warrant.
According to the 1984 Supreme Court opinion in Oliver v. United States, the heightened Fourth Amendment protections of the home extend beyond just the interior of the home itself into what’s called the “curtilage” of the home, which is the land immediately surrounding and associated with the home. Why? Because according to the Supreme Court, the curtilage is considered part of the home itself for Fourth Amendment purposes.
In the 2013 Supreme Court opinion of Florida v. Jardines, the Court held that a search undoubtedly occurs when the government, without a warrant, obtains information by physically intruding within the curtilage of a house, which in that actual case involved a home’s front porch. The Court cautioned that a search occurs unless a homeowner has explicitly or implicitly sanctioned the government’s physical intrusion into the constitutionally protected area, i.e., the yard and/or porch of the home.
Under the “knock and talk” exception to the warrant requirement, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” This means there is an “implicit license . . . to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” An officer may also bypass the front door (or another entry point usually used by visitors) when circumstances reasonably indicate that the officer might find the homeowner elsewhere on the property. “Critically, however, the right to knock and talk does not entail a right to conduct a general investigation of the home’s curtilage.”
The obvious difference between a police officer and a young girl selling girl scout cookies, is that many, if not most, homeowners have no idea whether they have any right to refuse to answer the door, or to ask the person to leave. Police like it this way. They don’t inform people of these rights, and the courts have ruled that they have no legal obligation to do so. You have to inform yourself and spread the word.
Police officers, and anyone else really, have an implied license to come onto your property and knock on your door. This implied license can be revoked. Homeowners can prevent ordinary citizens and police officers alike from conducting a knock and talk by revoking their implied license to be there. However, few citizens know that an implied license exists. Generally, the courts require that a homeowner do so by clear demonstrations or express orders. For instance, asking someone to leave or refusing to answer questions.
A couple of days ago I put up a video of my interview with Patrick Jaicomo from the Institute for Justice about the Kansas newspaper raid. Now we have surveillance footage of the simultaneous raid of the newspaper owner’s home, showing the owner’s 98 year old mother confronting police officers while they were searching her home.
This is a West Virginia case – bodycam of a traffic stop for lack of an inspection sticker and warrantless arrest. This involves the Martinsburg Police Department and Patrolman Daniel Smith. The guy in the video, D.J. Beard, wants to file a lawsuit. You tell me, what do you think? Does he have a case, in your opinion? Mr. Beard was almost immediately arrested for allegedly refusing to get out of his car. Is that what the footage shows?
This is the same police department that pulled over, and arrested, Corey Lambert, as featured in another video (different officer though).
Here are the criminal case filings, including the charging documents, police report narrative, as well as the dismissal orders:
About 8 months ago I did a video on the Jacksonville, Florida traffic stop of Braxton Smith by Officer Peppers of the Jacksonville Sheriff’s Office. After the bodycam footage hit the internet and the media, the agency received 14 complaints about the officer’s conduct, including a complaint by Mr. Smith. JSO Internal Affairs performed an investigation and the report has been released.
Yesterday, we filed two federal civil rights lawsuits against the City of Mount Hope, West Virginia and their former police officer, Aaron Shrewsbury. This small town of only about 1,000 people set up a notorious speed trap on a nearby four-lane highway. In what was apparently a cost-cutting measure, the local police chief got a disgraced and de-certified police officer, who had been previously fired for dishonesty from another department, re-certified with the state. That officer was Aaron Shrewsbury, who was finally exposed when my client, Brian Beckett, got pulled over for speeding last year while on his way home from work.
Here is where Officer Shrewsbury was decertified in 2015 for dishonesty:
Here are the details, police report, and original video from Brian’s traffic stop and arrest.
Police officer Heather Weyker, of the St. Paul, Minnesota, Police Department, was found by the federal courts to have fabricated false charges against several dozen Somali refugees, including Hamdi Mohamud, who spent 2 years in prison for it. Hamdi is now represented by the Institute for Justice, who represents her in an almost decade-long lawsuit against Weyker, which so far has been unsuccessful. Believe it or not, Weyker is still working a six figure job at the St. Paul Police Department, despite having been adjudicated as a liar. Her attorney, Patrick Jaicomo, of the Institute for Justice, joined me to explain this insane story.
Even though the U.S. Eighth Circuit Court of Appeals found in 2016 that Officer Weyker had fabricated false charges against numerous individuals, the St. Paul Police Department used her in a recruiting video in 2017!
It’s happened yet again. More innocent people ordered out of their cars due to police mistakenly believing the car was stolen – this time in Frisco, Texas. Police held a Black couple at gunpoint and handcuffed their son after mistyping their car’s license plate into their system, leading them to falsely believe the car the family was driving was stolen.
“We made a mistake,” Frisco Police Chief David Shilson said in the department’s later statement. “Our department will not hide from its mistakes. “Instead, we will learn from them.”
The last video I made on this issue was from Lehi, Colorado. Generally speaking, without more, police officers should not be aiming firearms at people. Reasonableness is the key. Aiming guns based on clerical entries and government policy is rarely going to be reasonable. Doing so should be based on actual perceived threats presented by the persons with whom they’re dealing.
Is there a protected First Amendment right to flip the bird, or give the middle finger, to police officers? This footage comes to us from Riverside, California from “Joshing U” on Youtube, showing his arrest, for what he claims was retaliation in response to his giving the middle finger to a California Highway Patrol officer. Back in April I did a video on the same topic, involving my client, Corey Lambert.
The protections of the First Amendment are not limited to spoken words, but rather include gestures and other expressive conduct, even if vulgar or offensive to some. For example, in Cohen v. California (1971), the Supreme Court held that an individual wearing a jacket bearing the words “F**k the Draft” in a courthouse corridor could not be prosecuted for disturbing the peace.
Consistent with this precedent, although “the gesture generally known as ‘giving the finger’ … is widely regarded as an offensive insult,” Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth. , (2d Cir. 1998), it is a gesture that is generally protected by the First Amendment. See, e.g. , Cruise-Gulyas v. Minard (6th Cir. 2019) (“Any reasonable [police] officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”); Garcia v. City of New Hope (8th Cir. 2021) (“[Plaintiff’s] raising his middle finger at [a police officer] is a rude and offensive gesture but nonetheless, under current precedent, is a constitutionally protected speech activity.”); Batyukova v. Doege(5th Cir. 2021) (same); accord Swartz v. Insogna (2d Cir. 2013) (holding that giving the middle finger could not support arrest for disorderly conduct); see generally Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. DAVIS L. REV. 1403, 1407–08, 1434 (2008) (observing that the middle finger can express a variety of emotions—such as anger, frustration, defiance, protest, excitement—or even “possess[ ] political or artistic value”).
Recently, a new sheriff was elected in Los Angeles County. He held a press conference about some bodycam footage that he had just become aware of, showing a deputy punching a mother in the face, in an attempt to take the baby from the mother over concerns that she had not properly transported the child in a carseat. Did the officer act reasonably?
By the way, this is the same agency that is also under investigation for another incident, wherein an elderly woman was slammed to the ground unnecessarily.
