UPDATE 2/5/20: Here’s our reply to the defense theory of Anti-AR-15:
Central to the Reply is newly discovered evidence. The defendant police officers argued to the Court that even though there’s no indication of it from the video, they actually weren’t checking to see if Michael Walker was a person prohibited from possessing a firearm, but rather that he was a potential school shooter, because it was “morning,” and a school some undetermined distance down that road was “in session.”
Well, the video was originally broadcasted on Facebook Live. Somebody was able to go back and screenshot it, and as it turns out – oops – it was actually 6:00 p.m…. I guess that explains the crickets around the 2:50 mark on the video.
So, here’s the response we received from Putnam County in response to our pretrial motion asking the Court to stop the Putnam County deputies from presenting anti-AR-15 propaganda and irrelevant media reports of mass shootings at the jury trial in the Michael Walker Open Carry case.
Here was my last update, wherein I posted our motion to exclude the unrelated matters from trial, if you haven’t been following along.
This response is an outrageous attack on the Second Amendment, which ironically was filed by lawyers for West Virginia’s first so-called “Second Amendment Sanctuary” county – Putnam County. Yesterday we all appeared at the federal courthouse in Huntington, West Virginia, for the pretrial hearing on various motions, including this one.
It was almost surreal to hear the other side argue to the Court that by virtue of the fact that Michael was safely carrying a completely legal AR-15 style rifle, in a non-threatening manner, that police should be able to search and seize him just because the AR is the “preferred weapon of mass shooters,” and so on. Citing news media reports about the Parkland shooting. They actually argued in court, that it would not have been suspicious if he had a shotgun, or a handgun. It was mentioned that AR-15s aren’t used for hunting in West Virginia. Which is of course completely false, and besides the point.
This is a reality check for people who value the Second Amendment, as well as the Fourth Amendment. If you live in the Fourth Circuit: West Virginia, Virginia, Maryland, North Carolina, or South Carolina, unless there’s a SCOTUS opinion on point, your constitutional interpretation/law comes from the Fourth Circuit. We’re on the edge….
Right now U.S. v. Black (2013), written by a federal appellate judge who is a staunch defender of the Second Amendment, Judge Gregory, whom I’ve had the honor of arguing in front of, protects citizens who open carry firearms in open carry states. The police cannot harass you, detain you, search you, seize you, just by virtue of the fact you have a firearm. As we know from the past, that was the original purpose of gun control measures in many of the southern states, such as North Carolina (which is where US v. Black came out of).
Black was narrowed by US v. Robinson in 2017, which said that anyone in a vehicle lawfully stopped for whatever traffic violation, or pre textual reason whatsoever, can be disarmed and searched, because firearm possession automatically makes you dangerous. Judge Gregory wrote an amazing dissent in that en banc opinion, which specifically mentions this scenario as it pertains to West-by-God-Virginia. However, that wasn’t extended to open carriers who are not already legitimately subjected to a forced encounter with police. Well, they’re now trying to extend this to open carriers through anti-AR-15 propaganda.
If they succeed, guess what can happen next time thousands of open carriers bring their ARs to the state capitol in peaceful protest and free speech? It’s game on if law enforcement wants to disarm you, run your background checks, search your pockets, etc. As Judge Gregory warned in the Robinson case dissent:
In my view, states have every right to address these pressing safety concerns with generally applicable and evenhanded laws imposing modest burdens on all citizens who choose to arm themselves in public. For instance, many states—though not West Virginia— seek to reconcile police safety and a right to public carry through “duty to inform” laws, requiring any individual carrying a weapon to so inform the police whenever he or she is stopped,4 or in response to police queries.5 And if a person fails to disclose a suspected weapon to the police as required by state law, then that failure itself may give rise to a reasonable suspicion of dangerousness, justifying a protective frisk.
West Virginia, however, has taken a different approach, permitting concealed carry without the need for disclosure or temporary disarmament during traffic stops. For the reasons described above, I do not believe we may deem inherently “dangerous” any West Virginia citizen stopped for a routine traffic violation, on the sole ground that he is thought to have availed himself fully of those state-law rights to gun possession. Nor, in my view, does the Fourth Amendment allow for a regime in which the safety risks of a policy like West Virginia’s are mitigated by selective and discretionary police spot-checks and frisks of certain legally armed citizens, by way of pretextual stops or otherwise. Cf. Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (invalidating discretionary spot-checks of drivers for licenses and registrations in furtherance of roadway safety). Absent some “specific, articulable suspicion of danger” in a particular case, see United States v. Sakyi, 160 F.3d 164, 168–69 (4th Cir. 1998), West Virginia’s citizens, including its police officers, must trust their state’s considered judgment that the benefits of its approach to public gun possession outweigh the risks. See Northrup, 785 F.3d at 1133.
. . .
That is particularly so given that West Virginia does not require that people carrying firearms inform the police of their guns during traffic or other stops, even if asked. See supra at 50. Where a state has decided that gun owners have a right to carry concealed weapons without so informing the police, gun owners should not be subjected to frisks because they stand on their rights. Cf. Northrup, 785 F.3d at 1132 (“impropriety” of officer’s demand to see permit for gun being brandished in public is “particularly acute” where state has not only legalized open carry of firearms but also “does not require gun owners to produce or even carry their licenses for inquiring officers”). Under a different legal regime, different inferences could be drawn from a failure to answer an officer’s question about a gun. See supra at 50–11. But I do not think we may presume dangerousness from a failure to waive—quickly enough—a state-conferred right to conceal a weapon during a police encounter.
Again, I recognize that expanded rights to openly carry or conceal guns in public will engender genuine safety concerns on the part of police officers, as well as other citizens, who more often will find themselves confronting individuals who may be armed.
But where a sovereign state has made the judgment that its citizens safely may arm themselves in public, I do not believe we may presume that public gun possession gives rise to a reasonable suspicion of dangerousness, no matter what the neighborhood. And because the rest of the circumstances surrounding this otherwise unremarkable traffic stop do not add appreciably to the reasonable suspicion calculus, I must conclude that the police were without authority to frisk Robinson under Terry’s “armed and dangerous” standard.
Accordingly, I dissent.
United States v. Robinson, 846 F.3d 694, 714, 716 (2017).
Don’t forget that Heller, i.e., the Second Amendment, has not yet been extended outside one’s home. It hasn’t been applied to open carry yet, or anywhere outside the home in the Fourth Circuit – nor by SCOTUS. See United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), other courts are divided on the question, compare Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right to keep and bear arms for personal self-defense … implies a right to carry a loaded gun outside the home”); Palmer v. Dist. of Columbia, 59 F.Supp.3d 173, 181–82 (D.D.C. 2014) (holding that Second Amendment right recognized in Heller extends beyond home), with Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (“[T]he Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.” (emphasis added)); Young v. Hawaii, 911 F.Supp.2d 972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in public do[ ] not implicate activity protected by the Second Amendment.”); Williams v. State, 417 Md. 479, 10 A.3d 1167, 1178 (Md. 2011) (holding that regulations on carrying firearms outside the home are “outside of the scope of the Second Amendment, as articulated in Heller and McDonald“).
So, are Montani Semper Liberi, or not? It remains to be seen. Right now, definitely not in Putnam County. And if they get their way, neither here, nor our neighbors in Virginia, and below…..
As a constitutional lawyer, I’m a failure if my adherence to the Constitution changes according to politics. Should it be any different for politicians, who take the same oath to defend the Constitution of the United States? Should principles change according to whom they are being applied to? Of course not. Here are some facts:
During President Obama’s presidency, there were 10 TIMES more covert drone strikes than under Bush.
“A total of 563 strikes, largely by drones, targeted Pakistan, Somalia and Yemen during Obama’s two terms, compared to 57 strikes under Bush. Between 384 and 807 civilians were killed in those countries….” (https://www.thebureauinvestigates.com/…/obamas-covert-drone…)
So this wasn’t even counting strikes in Afghanistan. This was drone killings in sovereign countries, with whom we were not at war; and nor was there any congressional authorization or oversight of these drone killings. “Obama also began an air campaign targeting Yemen. His first strike was a catastrophe: commanders thought they were targeting al Qaeda but instead hit a tribe with cluster munitions, killing 55 people. Twenty-one were children – 10 of them under five. Twelve were women, five of them pregnant.” (Id.)
On March 19, 2011, Obama literally invaded the sovereign country of Libya, unilaterally approving airstrikes. There had been no congressional authorization. From a 2019 Politico piece looking back on the disaster:
“Obama said the military action sought to save the lives of peaceful, pro-democracy protesters who found themselves the target of a crackdown by Libyan dictator Moammar Gaddafi.”
“Speaking on March 28 at the National Defense University in Washington, Obama said: “The United States and the world faced a choice. Gadhafi declared he would show ‘no mercy’ to his own people. He compared them to rats and threatened to go door to door to inflict punishment. In the past, we have seen him hang civilians in the streets, and kill over a thousand people in a single day.”
“It was not in our national interest to let that [massacre] happen. I refused to let that happen.”
“But Kuperman, an associate professor at the LBJ School of Public Affairs at the University of Texas at Austin, held in his article that the NATO allies’ assessment turned out to be premature.”
“As he put it: “In retrospect, Obama’s intervention in Libya was an abject failure, judged even by its own standards. Libya has not only failed to evolve into a democracy; it has devolved into a failed state. Violent deaths and other human rights abuses have increased severalfold.”
“Rather than helping the United States combat terrorism, as Gadhafi did during his last decade in power, Libya [began to serve] as a safe haven for militias affiliated with both al-Qaida and the Islamic State of Iraq (ISIS). The Libya intervention has harmed other U.S. interests as well: undermining nuclear nonproliferation, chilling Russian cooperation at the U.N., and fueling Syria’s civil war.”
(Politico: THIS DAY IN POLITICS
Obama approves airstrikes against Libya, March 19, 2011
By ANDREW GLASS 03/19/2019 – 3/19/19: https://www.politico.com/…/barack-obama-libya-airstrikes-12…)
You may ask yourself, was Pelosi in Congress then? Yes she was. Was Manchin a U.S. Senator then? Yes he was. He’s been there since 2010. Shifty Schiff? Yep. So did they show the same concerns then, about actual airstrikes against a sovereign country for the purpose of regime change, and which led to a disastrous regime change? Let’s see…..
Congress actually did pass a resolution at that time, directing the President, pursuant to the War Powers Resolution, to remove all U.S. military armed forces from the country of Libya. There was a roll call vote on June 3, 2011. Any guesses on whether Nancy Pelosi voted for it? She voted “Nay,” meaning allowing U.S. forces to stay inside Libya with no congressional authorization, and for no real national security benefit to the U.S., since Obama said it was just to help innocent protesters (who turned out to be ISIS by the way – an innocent mistake on his behalf I’m sure).
Guess who else voted against the resolution? Shifty Schiff. In fact, most of the Democrats voted against it. Manchin couldn’t vote, because he was in the Senate, not the House, where the vote took place. Also, it failed in the House because the Democrats voted against it. Man they seem to have really become more concerned with the Constitution and the limitation of presidential war powers since then…. Coincidence, I’m sure.
So what was Joe Manchin’s opinion about the Libya disaster? In March of 2011, according to the Charleston Gazette, he was “concerned” but thought the President had legal authority to do it:
“Sen. Joe Manchin, D-W.Va., said Monday he was concerned about U.S. military operations in Libya.”We don’t have a good record of getting in and out,” Manchin said during a stop at the University of Charleston.Manchin did not, however, raise specific questions about the mission or President Barack Obama’s decision to begin operations there. The mission appears designed to protect the rebellion against Libyan leader Moammar Gadhafi.Manchin said even though Obama did not seek congressional approval to launch operations against Libya, he had been told the president had the authority to do so.”
I guess Congress is only really a necessary component if the POTUS is a Republican; a Democrat President has the legal authorization for not only one drone strike, but 563, and also to literally invade a country.
Did Manchin ever speak out against Obama, or criticize him for the 563 drone strikes in Pakistan, Somalia, and Yemen? Again 563. 563 drone strikes….. Not that I could find. To his credit, he did vote no for confirmation on the federal judgeship of the guy responsible for the memo authorizing Obama to drone strike a 16 year old American citizen, but other than that, crickets…..
Here is the copy of a civil rights lawsuit we filed in the U.S. District Court for the Southern District of West Virginia late last week. It has now been assigned to Judge Goodwin in Charleston, WV. The case comes out of Fayette County, West Virginia, and involves a criminal investigation and prosecution gone awry.
My client, Keith Sizemore, had his home searched, via a SWAT team style raid, while he and his 16 year old son were home. In the subsequent federal prosecution, the federal judge presiding over the case ended up suppressing evidence obtained during the search, and issuing an order finding that members of the Drug Task Force had lied to the Magistrate Court of Fayette County in order to obtain the search warrant for Mr. Sizemore’s residence. It’s really an astonishing order:
The order shines the light on what has become a common scenario: a drug raid with some sort of seizure of illegal drugs, and then there is a civil forfeiture proceeding in WV State Court, in which the owner of the items has all the items confiscated under color of law. In this case, our lawsuit alleges that the state civil forfeiture machine had already seized and became the new owner of Mr. Sizemore’s home and 2017 pickup truck, before the criminal indictment was even served on him. However, interestingly, the criminal prosecution exploded with the suppression order finding that the task force members lied to obtain the warrant.
I wonder what will happen? We shall see…..
Update: Facebook video I made: https://www.facebook.com/JohnBryanLaw/videos/244860226411030/
So last night I attended a great seminar on the developing legal changes in West Virginia. Here are some of my notes, regarding my take-aways… This is a completely new area of the law, and economy, in West Virginia. Here were my basic takeaways. Excuse the short-hand notes:
Things learned from the hemp seminar last night:
1. There will be a boom of investment into West Virginia, including a land rush, for hemp and medical marijuana, similar to the marcellus shale. Foreign investors and land agents are going to be looking for lease contracts. Private property owners and farmers are going to want to cash in as well. A legal quagmire is imminent, due to the next thing:
2. The difference between hemp and marijuana is a chemical difference only. You cannot tell the difference, nor can law enforcement, between hemp and M. by looking at it. A chemical analysis has to be performed. Hemp is, by law, .3% or less THC of a certain strain of marijuana plant, and therefore not illegal.
3. State and federal law, and authorities are not on the same page. The WV DOA is fully on-board and is looking to assist landowners and businesses in developing this new economy, while the feds are still looking for pot needles…… There are differences in state and federal law which can land you in big trouble very easily…..
4. Industrial hemp growing, and production, is going to be much easier than dealing with medical marijuana. Pretty much anyone is going to be able to get into hemp, so long as all owners, and land owners, pass background checks. While MM is going to be limited to 10 growers, and 10 processors….. Insert WV good ole’ boy politics.
5. Both hemp and MM are going to be cash-intensive businesses. While hemp is reasonable as far as permit fees go, there currently is no access to banking institutions, nor insurance for those activities. MM has the same problems, with the added bonus of enormous filing fees and capital requirements. To get into that business, it looks like millions in liquid capital is going to be necessary. With the added bonus of no banking, no insurance, and high legal risk. The cherry on top is that apparently the IRS is auditing pretty much 100% of these businesses….
6. LEOs are going to be very slow in understanding the legalities and the differences. You must get legal advice prior to getting involved. Transporting can be big trouble. Likely better to fully notified any applicable agencies ahead of time. Be proactive.
7. This is going to be a regulation nightmare, but it will be necessary. Permitting is going to be key. Permits will be denied based on nondisclosure, lies, or omissions. Better to be fully compliant than sorry.
Get ready and buckle up because this industry is coming; and it could be an economic boom for West Virginia. There’s a lot of money to be made, and let’s try to keep it in WV rather than the out of state investors. But as they say, you’re going to need a lot of
Lawyers, guns, and money…….
Thanks to Jennifer Mason, Esq., of Dinsmore & Shols law firm for the presentation last night. The thoughts here are my own and not hers BTW…..
Update: Charleston Gazette-Mail article:
WV Record article:
Yesterday we filed a federal civil rights lawsuit against the Putnam County Commission, along with three of their employee deputies: Lovejoy, Donahoe and Pauley. The suit is related to multiple searches and seizures of Michael Walker, a Scott Depot, WV resident, who was simply exercising his right to open-carry firearms in the State of West Virginia. He has seizures, so he cannot drive. Therefore he walks everywhere he goes, including hunting. But when he walks with a firearm openly displayed, which is perfectly legal in West Virginia, he has been harassed by the Putnam County Sheriff’s Department. In December of 2016, he was arrested by Deputy Lovejoy for open carrying a pistol. He spent an entire weekend in jail without his seizure medications, and ended up hospitalized. He was found not guilty following a trial of that illegal arrest.
Two months later, Mr. Walker knew to turn the video recorder of his cell phone on so that his next encounter would be preserved for the world to see. This video, a portion of which is posted here:
The video shows a law enforcement officer admitting that he targets all firearms owners, including law abiding citizens, for illegal searches and seizures. In other words, he admits to a pattern, practice and policy of depriving the rights of gun owners in Putnam County, West Virginia. At one point, the deputy asks Walker why he needs an AR-15….
The officer, Deputy Donahoe, calls Mr. Walker a “fucking cocksucker” a few times, accuses him of being a “sovereign citizen,” and blatantly defies established federal constitutional law.
Federal law is very clear that, in open carry states, such as West Virginia, a police officer cannot perform an investigatory detention, or seizure, or “Terry Stop,” of an individual lawfully open-carrying a firearm. Not unless they have individualized information that the specific individual is prohibited from possessing firearms, or that the individual has committed some criminal act. They cannot walk up to you and ask for your ID, then run a background check on you, just to be sure you’re legal to carry a gun, which is what happened here. In fact, Deputy Donahoe admitted to committing many more civil rights violations involving innocent gun owners. He said he does it every day, and arrests people all the time on that basis. That might perk up the ears of some public defenders in Putnam County……
If you want to know more, read the Complaint linked below. It has all the details, and sets out the laws which were violated.
Complete text of the Complaint:
Today the SCOTUS released a decision pertaining to cell phone GPS data obtained without a warrant. I wish this case existed back when I was litigating the constitutionality of warrantless GPS trackers on police vehicles, which ultimately was decided against us.
Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as inJones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information ob- tained from Carpenter’s wireless carriers was the product of a search.
The opinion describes the nature of what makes such a “search” a violation, and unreasonable:
As with GPS information, the time- stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, reli- gious, and sexual associations.” Id., at 415 (opinion of SOTOMAYOR, J.). These location records “hold for many Americans the ‘privacies of life.’ ” Riley, 573 U. S., at ___ (slip op., at 28) (quoting Boyd, 116 U. S., at 630). And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools. With just the click of a button, the Government can access each carrier’s deep repository of historical location information at practically no expense.
This essentially mirrors the arguments we made in the Asbury vs. Ritchie County case.
In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container inKnotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thor- oughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. See id., at ___ (slip op., at 19) (noting that “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admit- ting that they even use their phones in the shower”); contrast Cardwell v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion) (“A car has little capacity for escaping public scrutiny.”). Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.
Justice Alito dissents and argues that such information should be available without a warrant. I am at a loss to understand how a justice alleged to be a strict constitutionalist sides with the government in a dispute about whether a warrant should be obtained? Shouldn’t someone who respects the original intent of the constitution always side with a warrant over a warrantless search? After all, warrants are a piece of cake for law enforcement to obtain. But at the very least, they have to create a paper trail.
Apparently former State Trooper, Ralph Justus, made the news yet again for being the subject of a sexual assault lawsuit. Here is my last post about him.
A State Police spokesman said last week that Justus no longer is employed by the State Police. An agency spokesman said Monday that his termination was the product of a completed internal investigation, and that a criminal investigation is underway.
UPDATE: 8/24/18: We are still waiting on a ruling from the Court on the pending motion to dismiss.
You might have read about this case in the news, as did I, this past week:
Fortunately I was subsequently hired by David Woolsey, the man who lost his job, to get involved. I worked quickly to draft and file a federal lawsuit on behalf of David Woolsey and against West Virginia Senate member, and congressional candidate, Richard Ojeda.
Here is the video that started it all.
Here is the response video posted by Sen. Ojeda later that night, and then subsequently deleted:
The Complaint alleges retaliation by a public official against a private citizen’s First Amendment political expression.
Here is a copy of the Complaint which was filed yesterday:
On Tuesday and Wednesday, May 8-9, I’ll be co-presenting a civil rights seminar in Charleston, West Virginia on behalf of the National Business Institute.
The seminar is called, The Ultimate Guide to Police Liability Claims. It is ideally geared towards lawyers, but would be beneficial to anyone related to the business of policing. The seminar will come with a manual containing probably thousands of hours worth of experience and research into federal civil rights issues, and other information related to the civil liability side of policing. Attorneys for both sides of the spectrum will be presenting.
Topics include federal constitutional law related to search and seizure, excessive force, and other common issues, as well as information related to police disciplinary issues.