The cover up is always worse than the crime, isn’t it? I mean, if you’re an elected sheriff, wouldn’t it be better to allow your irresponsible 22 year old daughter who drove drunk and crashed her car to get a DUI, than to use your position to protect her from the consequences of her actions, and thereby possibly destroy your career, as well as public confidence in their local government?
This video comes to us from Berkeley County, West Virginia, where the daughter of the local sheriff was allegedly returning home from a night of drinking at a bar, but failed to make it home, instead crashing her car. A Berkeley County deputy – a subordinate of Sheriff Nathan Harmon (her father) – arrived at the scene. His body cam captured what he saw….
There is a video showing a female cop suddenly pull her pistol and point it at a driver’s head during a routine traffic stop. Then there was a subsequent video providing commentary and advice about the situation. However, the information was incorrect. There’s unfortunately a lot of misinformation floating around about the rights of vehicle occupants during traffic stops. It’s important to know your actual rights and not misinformation that could really cause you some serious problems.
What are your basic constitutional rights at a traffic stop?
The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015).
Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop. The Supreme Court has provided a list of acceptable tasks that are connected generally to safety and driver responsibility:
Officers will usually question a driver about the traffic infraction; they will run the driver’s license plate; they will request and review the vehicle’s registration and insurance; they will check for outstanding warrants; and lastly they will write a ticket. Officers also commonly question drivers about their travel plans. So long as they do so during the time that they undertake the traffic-related tasks for the infraction that justifies the stop (Arizona v. Johnson), officers may also ask questions about whether the driver has drugs or weapons in the car, or even walk a drug-sniffing dog around the car (Illinois v. Caballes). These unrelated tasks turn a reasonable stop into an unreasonable seizure if it “prolongs” the stop. Officers may not avoid this rule by “slow walking” the traffic-related aspects of the stop to get more time to investigate other potential crimes.
Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes. See Hernandez v. Boles (6th Cir. 2020).
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)).
As for the 9th Circuit, where this encounter took place, “pointing guns at persons who are compliant and present no danger is a constitutional violation.” Thompson v. Rahr, 885 F.3d 582 (9th Cir. 2018) (citing Baird v. Renbarger , 576 F.3d 340, 346 (7th Cir. 2009)).
We do not discount the concern for officer safety when facing a potentially volatile situation. But where the officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force.
On December 13, 2022, Waterbury, Connecticut police officer James Hinkle had a complete meltdown, caught on video, that ended in him getting fired for verbally abusing a motorist. Details here.
Here’s the statement from the employer:
“His conduct during this encounter with a citizen of the community is unacceptable and not representative of the men and women serving the Waterbury Police Department,” Waterbury Chief Fernando Spagnolo said in a statement. “WPD officers are trained to demonstrate the highest level of professionalism when performing their duties.”
This footage comes to us from Birmingham, Alabama, where we see a police cruiser physically ramming a vehicle involved in a so-called exhibition driving event, which I take it means just doing donuts mostly, while people film. This officer is now under investigation by the Birmingham Police Department. Is that legal? Can a police officer ram a vehicle doing donuts, or whatever else “exhibition” driving consists of? What constitutional rights are at play?
This footage comes to us from Lake City, Florida, where a couple of guys were apparently doing some donuts in a fairly-new-looking Corvette, ending in the car catching on fire. The fire department arrived, as well as the police. Bodycam footage shows the conversation that ensued between the investigating officer and the driver of the burned car. Was the driver required to provide a statement for the officer’s report?
What would happen if a police officer initiates a pursuit with a fleeing vehicle, then that vehicle crashes, and the officer says, oh well, and drops the pursuit, leaving the scene? He just leaves; doesn’t stop to help; doesn’t call an ambulance; just turns the other direction and heads to Dunkin Donuts? Is that a civil rights violation? You might be surprised.
It was May of this year in Dallas, Texas. Dallas Police Officer Leonard Anderson and his trainee, Officer Darrien Robertson observed a vehicle leaving a gas station with his lights off. They began to pursue and attempted to initiate a traffic stop. But the vehicle fled – lights still off. The police car gets left in the dust, basically. Apparently, the Dallas Police Department has a pursuit policy that provides for officers not to pursue vehicles, unless they’re pursuing a subject believed to have committed a violent felony offense. That appears to have been the case here. As far as I can tell, they began to chase the guy because he left the gas station with his lights off.
Dash cam footage actually captures the officers witness the car wreck, off in the distance, as well as their reactions. Through audio from the officers’ dash camera video, Anderson and Robertson can be heard talking to each other about the crash. Anderson was driving at the time. “Did you see that?” Robertson asked. “That’s his fault,” Anderson replied. A nearby surveillance camera captured a better view of the vehicle, which narrowly missed hitting a pedestrian, jumping the curb and wrecking. Nineteen seconds later, the same camera captured officers Anderson and Robertson pull up to the crash site and promptly make a right hand turn, driving away.
Here’s the raw footage, courtesy of WFAA:
Bystanders at the scene witnessed the police car drive away. Instead, they attempted to help the driver, who was now trapped, his car on fire. Eventually, the two officers returned the scene, after other officers and first responders arrived. The crowd wasn’t happy. They had seen what had happened and were telling everyone who would listen. The officers tried to tell them at one point that they didn’t see what they saw. But they weren’t having it.
Afterwards, the chief of the Dallas Police said he was appalled by the officers’ actions and commended the civilians who helped the crash victim. “I’m embarrassed for the men and women of this department,” Garcia said. “This is not what we stand for.” “Those citizens did an admirable job — and did a job that our officers should have done,” the chief added.
Here’s what happened in the end. Fast forward from May of 2022 to just last week. It was announced by the Dallas Police that Senior Cpl. Leonard Anderson would be terminated as a result of this incident and trainee officer Darrien Robertson, whom Anderson was training at the time, was given a 30 day suspension.
Now here’s the question. Clearly we saw police officers fail to aid someone who needed aid. One of them was fired for it. No doubt that was a department police violation. But was it a civil rights violation under federal constitutional law? Let me know in the comments what you think. This is an interesting issue, and it’s not so easy.
It’s important to remember the basic fact that the U.S. Supreme Court has held that in general, police have absolutely no to duty to protect us. They can refuse to do their jobs, or be really bad at doing their jobs, and we can’t sue them for it. It’s not a civil rights violation, according to the Supreme Court. This has come up a lot in the context of school cases, where the government has actually exposed children to actual harm, that the children actually suffered, but the courts have refused to allow compensation. It’s come up in CPS and foster home cases. And it’s also come up in domestic violence cases – and to a lesser extent in some pursuit cases.
The Supreme Court has held that government officials cannot be held responsible for harm caused by third parties. In DeShaney v. Winnebago Cty. DSS, 489 U.S. 189 (1989), state social workers became aware that a child might be the victim of abuse based on suspicious injuries. They concluded, however, that there was insufficient evidence of child abuse to retain the child in state custody, so they allowed him to be returned to his father’s custody from the hospital where he was being treated. Later, the father so severely beat the child that he suffered severe brain damage and fell into a life-threatening coma. The child and his mother then filed a § 1983 action against the state social workers, asserting that they failed in their duty to protect the child, thus violating his substantive due-process rights.
The Court made clear that “[a]s a general matter … a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” The Court identified an exception to this general rule, however, specifying that the State does have a duty to protect citizens against private violence when the State has a “special relationship” with that citizen:
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the state by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs— e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.
So the question is, okay, so they were not technically responsible yet. But they saw the crash. They didn’t call an ambulance. They didn’t provide first aid themselves. Is that a civil rights violation? We’re back full circle to the first issue. The Fifth Circuit has specifically held that no general right to medical care exists; such a right has been found only where there exists a special custodial or other relationship between the person and the state. Kinzie v. Dallas County Hospital District (5th Cir. 2003). Thus we’re back where we started.
While DeShaneymakes clear that the state’s mere awareness of a risk of harm to an individual will not suffice to impose an affirmative duty to provide protection, most federal circuits hold that if the state creates the danger confronting the individual, it may then have a corresponding duty to protect. This is known as the “state-created danger” theory/doctrine. Here, however, the Fifth Circuit has “repeatedly declined to recognize the state-created danger doctrine.” Joiner v. United States , 955 F.3d 399, 407 (5th Cir. 2020). Since this occurred in the Fifth Circuit, that’s not going to help.
Thus, here we are. There’s probably no civil rights violation. So is this news to you? Did you know that the federal courts generally hold that police officers have no legal obligation to call an ambulance for you, provide first aid, CPR, etc.? I find that shocking and unacceptable. So it’s important to know the exception. When? When there’s custody or a special relationship. Do you think the officers knew that here and were just playing 4D chess for their insurance company? I don’t think so. But it probably was convenient. That way, the department can just throw these guys under the bus, apologize publicly, and then quietly deny any compensation to the victim.
Now the victim here perhaps didn’t deserve compensation. He did it to himself. He could have killed an innocent person. So I’m just speaking in general. The usual tragedy is that the guy hits a car full of kids and wipes out an entire family. Then the government, similar to what these guys did here, just says, oh well, and takes a right hand turn and drives somewhere else….
Most people understand and accept that citizens have a constitutional right to record video of interactions with police officers, at this point – in general. Law enforcement has fought that every step of the way, of course. But is there a right to “livestream” encounters with police officers? More specifically, does a passenger of a vehicle detained at a traffic stop have a constitutional right to livestream the encounter from his cell phone?
Dijon Sharpe was a passenger in a car stopped for a traffic violation in Winterville, North Carolina on October 9, 2018. WPD officers Myers Helms and William Ellis performed the stop. Sharpe began live streaming the encounter with Facebook live. Helms told Sharpe that he could record the traffic stop from inside the car during the encounter but not livestream the traffic stop from inside the car during the traffic stop.
At the beginning of the stop, while the driver and Mr. Sharpe waited for the officers to approach the vehicle, the driver called a third party on his cell phone in order to have a witness to what was happening. Meanwhile, Sharpe began live-streaming what was happening on his Facebook account. The livestream shows that, during the stop, the driver continued his conversation with the third party on his cell phone during the entire course of the stop, including while speaking with the officers. The footage shows the interaction between Mr. Sharpe – the passenger – and Officer Helms. The video shows Officer Helms asking for Mr. Sharpe’s identification and then returning to the police vehicle. During this time, the driver continued his conversation with the third party over the cell phone, explaining that police had begun following the vehicle for some time before initiating the traffic stop. He expressed concern that he had been racially profiled.
As the driver was talking to the third party on his phone, Sharpe talks into his phone, reassuring viewers on Facebook live that he was fine, advocating for his practice of recording interactions with law enforcement. According to the lawsuit he would subsequently file, Sharpe began recording because he had been the victim of a brutal beating at the hands of police officers in the nearby town of Greenville ten months earlier, during a traffic stop. That experience prompted him to ensure any future interactions he had with law enforcement would be recorded for his own protection.
After emerging from the police vehicle, Officer Helms is seen on the video approaching the car window. He says, “What have we got? Facebook Live, cous?” As soon as Mr. Sharpe responds affirmatively, Officer Helms abruptly thrusts his arm through the passenger window and attempts to seize Mr. Sharpe’s cell phone, while pulling on Sharpe’s seatbelt and shirt. During this altercation, Officer Helms tells Sharpe: “We ain’t gonna do Facebook Live, because that’s an officer safety issue.”
Shortly afterwards, following the issuance of citations to the driver, Officer Ellis states: “Facebook Live . . . we’re not gonna have that, okay, because that lets everybody y’all follow on Facebook that we’re out here…” He says that recording is fine, but if you’re live, your phone is gonna be taken. Otherwise you’re going to jail. Sharpe then asked Ellis if that was a law. Ellis responded that it was a violation of the RDO statute, which is basically North Carolina’s obstruction statute. In the end, the phone was not seized. There was no citation or arrest pertaining to the livestreaming. However, the threat was made that next time, the phone would be seized and an arrest would be made if the phone was not forfeited.
In Mr. Sharpe’s video, look how the officer is standing there watching Sharp and the driver and treating them like they’re up to no good. Yet the reason for the stop was supposedly a basic traffic violation. The officer asks for Sharp’s ID because “he likes to know” who he’s out with. Is it any wonder that police officers get the reputation they have?
Based on the incident, as well as the threat to stop livestreaming in the future, under penalty of arrest, Sharpe sued the officers and the Town of Winterville under Section 1983 for violation of the First Amendment. The district court dismissed the claims against the individual officers on qualified immunity grounds, holding that it was not clearly established in October of 2018 that a passenger in a stopped vehicle had a constitutional right to record and live broadcast the interaction. Additionally, the Court held that live-streaming by a vehicle passenger poses a “unique” threat to officer safety that mere recording does not and is therefore not clearly protected under the First Amendment.
Eleven months later, the district court dismissed the claim against the Town of Winterville on the grounds that Mr. Sharpe had no constitutional right to live broadcast at all, and that even if he did, the town’s policy of arresting traffic stop passengers for live-streaming passes constitutional review under intermediate scrutiny. The district court held that “[r]ecording a traffic stop for publication after the traffic stop versus livestreaming an ongoing traffic stop from inside the stopped car during the traffic stop are significantly different.”
“[L]ivestreaming the interaction from inside the stopped car during the traffic stop … allows … those watching, to know the location of the interaction, to comment on and discuss in real-time the interaction, and to provide the perspective from inside the stopped car,” JA81. “The perspective from inside the stopped car, for example, would allow a viewer to see weapons from inside the stopped car that an officer might not be able to see and thereby embolden a coordinated attack on the police.” Thus the Court concluded that Mr. Sharpe had no First Amendment right to live-stream.
Mr. Sharpe appealed to the Fourth Circuit. It drew significant attention from civil liberties and press advocates. Seven amicus briefs were filed in support of his claims. Here’s Sharpe’s opening brief:
Oral arguments were held last month, which involved a heated discussion between one of the federal judges on the panel and the lawyer representing Mr. Sharpe. During the oral arguments, the federal judge seemed highly concerned about the rights of police officers, as opposed to the rights of an innocent citizen being detained as a passenger in a traffic stop. Listen for yourself.
The Fourth Amendment grants no rights to officers. “The right of the PEOPLE to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” Its purpose is to guarantee individual rights against the power of the government.
This flies in the face of actual Fourth Amendment law. They are using amorphous and general concerns over “officer safety” that are not particular to the individual they are seeking to restrict. In other words, the officers here, and those advocating for them to do so, want the officers to have the power to stop livestreaming, based only on obscure general concerns over officer safety. Theoretically, if some bad guy was watching the livestream he could find the location while the stop is in progress and theoretically harm the officers or cause some other safety issue.
They’re not saying that this particular individual should not livestream under these circumstances, because that person is a particular safety threat and those facts can be demonstrated in court or to a judge. They’re using blanket reasons. Again, that flies in the face of existing Fourth Amendment law, which requires particularity to the individual for things like frisks and searches. Blanket reasons never go well with constitutional law. Usually we’re told that law enforcement actions were justified based on the “totality of the circumstances.” Well now, because they hate video footage, we no longer look at the totality of the circumstances, but rather, at the vague concept that police officers are afraid of absolutely everything and everyone.
The fact is, freedom is scary. They need to deal with it, or get another job. We cannot and must not appease that fear.
Once again, a police officer films himself committing a civil rights violation. This is an extremely important issue. It’s already super easy for police officers to stop and detain an innocent person just following a driver long enough and looking for one of the hundreds of available traffic law violations, or even by just lying about observing a traffic law violation. We’ve all known compulsive liars. They justify their behavior in their own minds by convincing themselves that they’re telling the truth – or that it’s for a good cause. When it comes to police officers and constitutional rights, our freedom hangs in the balance. It’s a slippery slope, so there can be no compromise.
In this footage we see an unlawful stop, based completely on a lie, documented by the officers’ own dash cam footage. It makes no difference, legally speaking, whether the lie was malicious, or done with good intentions. This is where most of us will encounter police officers. This is also where police officers can easily get away with racial profiling or other discrimination or harassment of innocent people. The threshold is very, very low for police officers to lawfully stop a vehicle and detain the driver. Where they are caught doing so illegally, there needs to be consequences and accountability.
Fortunately, there may be some accountability coming for these police officers. This footage comes to us from a fantastic new video released by the Institute for Justice, detailing a section 1983 lawsuit they just filed this month in Louisiana. I’ll post a link to the video and press release by the IJ in the description. I also urge you to donate to their cause. They do fantastic work protecting our freedom.
On June 15, 2022, Mario Rosales and his passenger Gracie, were driving in Alexandria, Louisiana. They both worked for an HVAC business and had just left from work. It was around 5 p.m. In his red Mustang, while sitting at a traffic light, Mario properly signaled a left turn and then proceeded to turn left. Two police officers with the Alexandria Police Department, Jim Lewis and Samuel Terrell, were behind him. The officers had no reason to suspect that Mario had committed any crime, including a traffic violation. His tags were current. The vehicle was in proper working order and didn’t appear to give rise to any justification for a traffic stop. There was no lawful reason for the stop.
Here’s the full raw footage:
In the end, due to the fishing expedition, the officers end up charging Mario with three violations: failure to signal, and two hyper-technical violations pertaining to residence and vehicle registration. Fortunately, all three charges were dismissed. Assuming that someone on a bench somewhere was looking at this footage and measuring it against the Constitution, those charges had to be dismissed. Why? Because the initial stop was illegal. Therefore, everything that happened afterwards is fruit of the poisonous tree. Well, the failure to signal was easily disproved by the video footage. But the two hyper-technical residency violations would also have to be thrown out because they were only discovered as a result of the officers’ illegal behavior.
Police officers must have reasonable suspicion that the driver committed a crime or traffic violation in order to justify a traffic stop detainment. In order to have valid reasonable suspicion here, the officers must have had some belief particular to Mario, based on the totality of the circumstances, that Mario committed some violation. Just a hunch by Officer Fifth Amendment here is not enough. His instincts are either way, way off, or he racially profiled Mario. Or maybe he just doesn’t like Mustangs. Either option violates the Fourth Amendment.
Even if there was a failure to signal, what other problems would we have here? As I explained in a previous video about traffic stops: The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop. Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes.
As we saw in the footage, this wasn’t just a regular traffic stop, Officer Fifth Amendment chose to take Mario out of his car, for an extended period of time and question him about criminal allegations completely unrelated to the supposed reason for the stop. For that to be legal, the officer would need to have separate reasonable suspicion particular to Mario – not just anyone and everyone he stops – that Mario may be involved in the suspected illegal activity. Thus even if the failure to signal allegation wasn’t a lie, the Fourth Amendment would still be violated. And then there’s a First Amendment violation in there for refusing Mario and Gracie the option of filming these lying police officers. That is well explained in the IJ’s complaint
For some unknown reason, following police vehicle pursuits, the suspects rarely make it to jail without suffering violent injuries. They always tend to resist, or get accidentally injured in some way. I’m about to show you brand new footage showing my client, Hiram Tolliver being taken into custody by the Bluefield, West Virginia Police, after leading them on a brief chase. It’s not all that clear why he was fleeing, or why they were chasing him. Other than an allegations of hearing screeching tires, he wasn’t suspected of committing any prior crime. On May 5, 2022, Bluefield Police Department Officer D.R. Barker was assisting the city manager at an intersection in Bluefield, West Virginia. He claims that he heard a vehicle traveling at a high rate of speed. He claims that he heard the screeching of tires “where the vehicle was taking turns too fast.” Once the vehicle came into view he pulled in behind it and tried to stop it, but the driver fled.
According to the police reports, the pursuit began at 9:29 p.m. Body cam footage shows that the pursuit ended at around 9:36 p.m. – so roughly 5 or 6 minutes – at which time the driver, Hiram Tolliver, was violently taken into custody on the dead end street in front of his parents home. By around 9:48 p.m., Mr. Tolliver would end up falling off the roof of the local fire department building. That’s right, this story doesn’t end with the arrest itself.
See the footage for yourself:
Does what we saw on the video line up with the police reports? Officer Barker wrote the following:
The vehicle then came to a stop at the dead end. The driver was then ordered out of the vehicle and to get on the ground. The driver went to the ground. When he was ordered to give us his hands, he resisted arrest. Detective K.L. Ross could not bring his hands together to effect the arrest. Defensive tactics were used to apprehend the suspect in order to effect the arrest. I was finally able to cuff the driver of the fleeing vehicle.
Officer Barker mentioned in his report that he sustained an injury to his right hand. In fact, we can see that injury in his body cam footage. Gee, I wonder what could have inflicted such a brutal injury?
Unfortunately, similar to the missing body cam footage, we have no report from the first officer to make physical contact with Hiram, Detective Ross.
Justifiable force must be reasonable in light of the circumstances. Courts don’t generally second-guess an officer making split second decisions with 20/20 hindsight in a struggle with someone physically resisting or fighting with them. But if the facts show the arrestee has submitted to them, not resisting, and that force is applied unnecessarily, as a punishment or retaliation, rather than in an attempt to gain control or custody of the person, that is always going to be unreasonable.
Officer Barker didn’t elaborate on what he meant by “defensive tactics” being used on Hiram. There were multiple eyewitness we may hear from later, but what does the video show? Injuries are important evidence in use of force cases, as they can help establish the level of force, and type of force, used. There were several glimpses of Hiram’s face following his arrest. You saw how one side of his face appeared to be bloodied, and the other didn’t. This matches up with subsequent photos from the hospital. You also saw how Detective Ross took Hiram from the first police cruiser all the way back to the last police cruiser, with Hiram limping, in obvious pain. Instead of providing, or making available, medical treatment for his arrestee, Detective Ross instead lectures Hiram, essentially telling him to suffer because of what he had done, endangering police officers during the pursuit.
Compare the screenshot from the video with the hospital photo. Clearly the facial damage was caused during the initial arrest, not the drop from the roof:
Given everything that just happened, as well as the officers’ allegations that Hiram had almost killed several police officers and resisted arrest, to the extent of requiring “defensive tactics,” they wouldn’t un-handcuff him to walk him into the police department for processing would they? Apparently they did, and according to them, Hiram made a run for it just as they were entering the police department door. He jumped over a guardrail, and onto the roof of the fire department, running across the roof and jumping off the roof onto the asphalt 16 feet below. Here’s the only police report to document the roof incident:
The officer who was present for the fire department jump wrote in his report that the first thing he did when he reached Hiram, injured on the asphalt, was handcuff him. Indeed, those handcuffs can be seen in the body cam footage, despite what appears to be a compound fracture of his arm and wrist. There didn’t appear to be much concern by the Bluefield Police Department about the constitutional responsibilities and obligations placed on the government after taking a citizen into custody. Government officials have a duty to provide medical treatment. They have a duty to ensure the safety of their arrestees.
Hiram was airlifted to Charleston Area Medical Center and underwent extensive surgery, treatment and rehabilitation. Why would Hiram have tried to get away? Perhaps he was scared. You could hear that during his arrest, when it sounded like he was being struck by the officers, he was crying out to his parents, who were eyewitnesses, that he was in fear for his life. If he was really trying to flee, why would he pull onto his parents’ dead end street and stop in front of his parents’ home. Perhaps he was scared that the police were going to hurt him? Perhaps he thought there would be safety in witnesses. It’s not all that far-fetched that the fire department roof jump resulted because Hiram thought he would be killed inside the police department and ran for his life?
There were indeed multiple eyewitnesses. In the video, you can hear one of the officers threatening them to get back in their home, and to stop watching the use of force being inflicted on Hiram. I’ll continue investigating and will have more on this later, so subscribe to the email updates to follow along.
So a few days ago, I represented a guy down in McDowell County, West Virginia, on a misdemeanor charge of driving on a two-lane road in an ATV/UTV/side-by-side. West Virginia law allows you to do this. But apparently there is confusion, or ignorance, in the local sheriff’s department and/or prosecutor’s office. We were forced to have a trial, which resulted in a not guilty verdict. Here’s the actual criminal complaint charging my client with the non-crime of operating an ATV on a two-lane road in West Virginia:
Clearly this police officer was wrong about the law.
W. Va. Code Section 17F-1-1 allows ATVS to:
Operate on any single lane road (most roadways in rural West Virginia).
Operate on a two-lane road for a distance of 10 miles or less, so long as the ATV it is either on the shoulder of the road, or as far to the right on the pavement as possible if there is insufficient shoulder to ride on, and at a speed of 25 mph or less, in order to travel between “a residence or lodging and off-road trails, fields and areas of operation, including stops for food, fuel, supplies and restrooms.” If operated at night, an ATV must be equipped with headlights and taillights, which must be turned on – obviously. Read it for yourself, here: https://www.wvlegislature.gov/WVCODE/Code.cfm?chap=17f&art=1
So, slightly confusing and a few grey areas, but if you’ve been around the Hatfield & McCoy Trails, you know that it’s necessary to use a two-lane road at times to get where you need to go on an ATV. And in other counties, where there are no Hatfield & McCoy Trails, we still need to go down two-lanes at times to get from one place we’re allowed to ride, to another (whether farms/fields/one-lanes/gas stations, etc.)
Unfortunately however, when we arrived to court on this particular case, the prosecutor looked at me in amazement when I told her that the client hadn’t committed a crime, even assuming all the allegations in the criminal complaint are true. She said dismissively that the client could plead guilty and pay the fines. Of course, I said, “no way, Jose.”
So we had a trial. During the trial, the charging police officer testified that no ATVs are ever allowed to be on a two-lane road, and that his supervisor instructed him, in accordance with this, to “clear” ATVs from the roads, because the Hatfield & McCoy system was closed by the Governor due to COVID-19.
But that has nothing to do with the statute. The Governor can’t change the ATV laws by executive order; nor did he attempt to. Accessing the H&M trails isn’t the only reason ATVs are used in West Virginia. The officer cited 17F-1-1 as his legal authority to “clear the roads.” But in reality, the law still says what it says. Therefore, the magistrate judge correctly found my client not guilty.
There had been no allegations of unsafe or improper operation of the ATV – just that he was on a double yellow line. The officer testified that he didn’t know where the client was coming from – nor where he was going. He had no evidence that my client had been illegally operating on the H&M trail system. The complaint itself corroborates this. It didn’t mention anything other than the fact that he caught him on a two-lane.
However, there were facts pertaining to the officer’s conduct. He got angry and took the citation back, after the mayor of the town where this occurred – Northfork – apparently said that ATVs were welcome and allowed in her ATV-friendly town. Muttering the “F word,” the officer left the city hall, confiscated citation in hand. The testimony at trial was that about an hour later, the officer showed up at my client’s residence – the client wasn’t even home at the time – and threw the citation inside the empty, parked ATV in the driveway. That wasn’t the reason for the not guilty verdict, just a bizarre way to re-issue a ticket. But in any event, it was a non-crime, so the verdict was rightly “not guilty.”
Following the trial, I posted on Facebook that my client had been found not guilty, and that the Governor’s tyrannical executive orders had no effect on the state’s ATV laws, and expressed disbelief that the local sheriff’s department and prosecutor’s office would hassle ATV riders, when that’s really the only thing the local economy has going for it at this point. Did I bash a county by saying this? No, facts are facts. I said nothing about the county, unless you’re referring to the sheriff’s department and the prosecutor’s office prosecuting an innocent man for a non-crime.
Let’s look at the facts though…..
To argue that McDowell County doesn’t have a crisis economy is to stick your head in the sand. Pointing this out is not bashing, nor exploiting, the county. Anyone who makes such an accusation, is either ignorant, or a willing propagandist. Hell, in 1963 – I’ll repeat: 1963 – President John F. Kennedy said:
I don’t think any American can be satisfied to find in McDowell County, West Virginia, 20 or 25 percent of the people of that county out of work, not for 6 weeks or 12 weeks, but for a year, 2, 3, or 4 years.
The situation has only worsened there. McDowell County has been classified as a “food desert” by the USDA. In 2017, there were two full-sized grocery stores serving the county’s 535 square miles. The only Walmart super center in the county closed in 2016 Coyne, Caity (April 7, 2018). “In McDowell County ‘food desert,’ concerns about the future”. Charleston Gazette-Mail. Retrieved January 19, 2020. I don’t know that I’ve ever seen another closed Walmart anywhere in the country.
WELCH — For years, it has been difficult for McDowell County officials to recognize the obvious fact that deserted and dilapidated structures countywide represent a negative image for visitors to the county.
“U.S. Route 52 is the gateway to our county,” Harold McBride, president of the McDowell County Commission said during a press conference Friday morning at the McDowell County Public Library in Welch. “It looks like a Third World country,” he said and added that most of the dilapidated buildings are owned by people who live outside the state and “think they have something.”
There were 100,000 people in McDowell County in 1950. Today, there are about 22,000 residents,” Altizer said.From 2000 to 2010, McDowell County’s population dropped by nearly 20 percent, from 27,329 people to 22,064 people, according to the U.S. Census Bureau.”It is so sad we are losing so much population. Half of our homes are on homestead exemption, which lowers property taxes for people who are over 65 or disabled,” Altizer said during a recent interview in the McDowell County Courthouse.Today, Altizer said, most income to county residents come from coal and natural gas jobs, or from checks retired people receive — Social Security, black lung, the Veterans Administration and United Mine Workers.”The monthly West Virginia Economic Survey prepared by Workforce West Virginia recently reported there were about 6,000 people working in the county, many of them with government jobs or fast-food jobs. We have an older population today. And there are not new jobs here,” Altizer said.”Coal and gas are keeping us going.
Here’s an interesting article, with photos from an actual photographer, rather than the few I snapped with my obsolete iPhone. Take a look for yourself and determine if the few pictures I snapped were somehow misleading about the blight in the county:
This decline in work lead to the creation of modern era food stamps. The Chloe and Alderson Muncy family of Paynesville, McDowell County were the first recipients of modern day food stamps in America. Their household included 15 people. The city of Welch, and crowds of reporters watched as Secretary of Agriculture Orville Freeman delivered $95 of federal food stamps to Mr. and Mrs. Muncy on May 29, 1961. This was an important moment in history, as it was the first issuance of federal food stamps under the Kennedy Administration. This federal assistance program continued to expand for years to come, and is commonly used across the United States today.
Fortunately for the county, in 2018, the state opened two new trail connections in McDowell County. From a May, 2018 newspaper article:
WELCH — Two new ATV trail connections opening today in McDowell County will give visitors direct access to the city of Welch and the town of Kimball, the Hatfield-McCoy Regional Recreation Authority’s executive director said Tuesday.
“As of in the morning (today), we’ll have the town of Kimball and the city of Welch will be connected to the Hatfield-McCoy Trail in the Indian Ridge system,” Executive Director Jeffrey Lusk said. “This will allow riders of the trails to go into those communities to get food and fuel and to stay. These are two new towns that weren’t on the system. Up until today, the only two towns that were connected were Northfork and Keystone….
The new Warrior Trail will connect with Gary and Welch. ATV riders will be able to travel from the town of Bramwell to the town of War starting on Labor Day, he added. More lodging opportunities are needed to help McDowell County’s communities benefit from the increase ATV tourism traffic.
“We’re opening the Warrior Trail System up on Labor Day Weekend,” Lusk said. “We’re in desperate need of places to stay in War, Gary and Welch come Labor Day Weekend.
Tourism traffic continues to grow on the Hatfield-McCoy Trail’s overall system, Lusk stated. Last year, overall permit sales were up by 15.1 percent, and both Mercer and McDowell Counties had the highest growth in sales.
Being an ATV rider myself, I know first hand how the community benefits from the ATV economy. Local entrepreneurs now have opportunities to open ATV resorts, restaurants, and other businesses, which cater to ATV riders. ATV riders bring money. These new ATVs are 15-30k vehicles, each, when it comes to the side-by-sides, and not far off from that for the individual four wheelers. Watch them drive in. They’re driving 70k trucks, pulling 10k trailers, in many instances. They’ve invested heavily in the hobby. They spend money, not only on their equipment, but on food, lodging, gas, and so on. And they come from all over. I’ve even seen guys who drove all the way from Mexico to ride these trails.
Some of them even invest in local real estate, such as the client I represented in this case, who loved the community so much, he bought his own place. But go on and attack me for daring to “bash” McDowell County…. So let’s continue with some facts, instead of knee-jerk emotion.
What are some of the side effects of the economic problems?
Males in McDowell County lived an average of 63.5 years and females lived an average of 71.5 years compared to the national average for life expectancy of 76.5 for males and 81.2 for females. Moreover, the average life expectancy in McDowell County declined by 3.2 years for males and 4.1 years for females between 1985 and 2013 compared to a national average for the same period of an increased life span of 5.5 years for men and 3.1 years for women…..
Then there’s the drug problem. In 2015, McDowell County had the highest rate of drug-induced deaths of any county in the U.S., with 141 deaths per 100,000 people. The rate for the U.S. as a whole is only 14.7 deaths per 100,000 people. (Same citation).
So back to my original point. There’s 99 problems there, and ATVs ain’t one of them. So why hassle ATV riders when they’re bringing money, jobs and fun into the local economy?
Again, ATVs are allowed on single lane roads in West Virginia, and are also allowed on two-lane roads, to get from one place they’re allowed to operate, to another place they’re allowed to operate, so long as it’s a distance of 10 miles or less, and so long as they operate on the shoulder, or as far as the right as possible, and under the speed of 25 mph. Counties and cities in West Virginia are granted the authority by the legislature to increase ATV freedoms. Other than interstate highways, they can authorize ATVs to use two lanes within their jurisdictions with no restrictions whatsoever. That would be what signage would refer to as being “ATV Friendly.”
That’s the law anyways. Whether or not law enforcement and prosecutors in any particular county care or not…. well that’s a different issue.
Update regarding the new Senate Bill 690:
Senate Bill 690 is now in effect in West Virginia. ATVs, side by sides, UTVs, can now be made “street legal” in West Virginia. They are calling this group of vehicles with confusing names, “Special Purpose Vehicles.”
SPVs can now be turned into “street legal SPVs.” The following requirements must be met:
(1) One or more headlamps;
(2) One or more tail lamps;
(3) One or more brake lamps;
(4) A tail lamp or other lamp constructed and placed to illuminate the registration plate with a white light;
(5) One or more red reflectors on the rear;
(6) Amber electric turn system, one on each side of the front;
(7) Amber or red electric turn signals;
(8) A braking system, other than a parking brake;
(9) A horn or other warning device;
(10) A muffler and, if required by an applicable federal statute or rule, an emission control system;
(11) Rearview mirrors on the right and left side of the driver;
(12) A windshield, unless the operator wears eye protection while operating the vehicle;
(13) A speedometer, illuminated for nighttime operation;
(14) For vehicles designed by the manufacturer for carrying one or more passengers, a seat designed for passengers; and
(15) Tires that have at least 2/32 inches or greater tire tread.
(uu) “Low-speed vehicle” means a four-wheeled motor vehicle whose attainable speed in one mile on a paved level surface is more than twenty miles per hour but not more than twenty-five miles per hour.
WV Code §17A-1-1(uu)
A “Special Purpose Vehicle” is defined as:
“Special purpose vehicle” includes all-terrain vehicles, utility terrain vehicles, mini-trucks, pneumatic-tired military vehicles, and full-size special purpose-built vehicles, including those self-constructed or built by the original equipment manufacturer and those that have been modified.
There is a 20 mile limit on the travel on a two-lane road. Controlled-access highways are excluded. That would be interstates and four lanes where there are dedicated access points (on ramps, off ramps, and the like).