Ring Doorbell Saves the Day Again: Eviction at the Wrong House

It’s a relaxing summer afternoon. You’re visiting family about 15 minutes away from your home. You locked your doors before you left, like you always do. Your three dogs are safely secured inside your house. All of a sudden you get a notification from your Ring doorbell security camera, at your front door. You see two police officers and some other stranger standing on your doorstep. They just busted the lock off your front door. They’re in the process of entering your home. You have three dogs in the house and you immediately have awful thoughts racing through your head about police officers and dogs. Not knowing what else to do, and having no idea what’s happening, you confront them using the doorbell’s audio speaker. They tell you that they’re there to evict you. You have no idea what they’re talking about.

This was the experience of Jennifer Michele of Land O’Lakes, Florida, in Pasco County. It was a complete surprise to her, given the fact that she had no knowledge of any eviction proceedings against her. She had been living there for 13 years. She posted this footage to Tik Tok, and it went viral. Here it is…

The Maxim that “a man’s house is his castle” is older than our Republic, and deeply rooted in Anglo-American jurisprudence. As scholars have observed, it protects all levels of society, down to the “poorest man living in his cottage.” It formed much of the basis of the Fourth Amendment itself. While 4th Amendment protections have eroded over time almost everywhere else – cars, schools, sidewalks, airports, and so on, it has retained its original strength in the home. The home still receives the greatest protection under the Constitution. It’s our castle. This is expanding in many states, with “castle doctrine” and “stand your ground” laws, and other self defense protections for law abiding citizens. 

Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. The only exceptions are consent and exigent circumstances, which are not at issue here. 

Thus where law enforcement busts your lock off your front door, without a warrant, or in this case a valid eviction order, they violated your Fourth Amendment rights, by default application of the law. But are there any consequences? This is where qualified immunity comes in. 

There are two scenarios: 

1) Where the warrant or eviction order lists the homeowner’s correct address, but which is actually the wrong address. So on its face, there is a warrant for that address, but it was supposed to be a different address; or 2) where the warrant or eviction order lists an entirely different address and they just showed up and executed it at the wrong house. This could be equally applicable to arrest warrants where the wrong John Smith is arrested. Is the mistake in the warrant, or in the execution of the warrant? If the mistake is in the warrant, then how did it get there, and who was responsible? These questions are all highly important to the qualified immunity issue. The unfortunate reality is that qualified immunity is typically granted in these sorts of mistaken identity or address cases. Not always, but very frequently.

One must also remember that this is Pasco County, the same county as the video I recently posted showing the SWAT style entry into a woman’s home over a building permit inspection. That brings up what is most likely a better legal argument here, which is the existence of a policy of constitutional misconduct. This is likely not the first issue. Why is Pasco County law enforcement showing up in tactical gear, with very little information or communication, for an eviction? There may be a Monell Claim here, which would be important because a county or municipality cannot assert qualified immunity as a defense to Monell liability for a policy of constitutional violations.

The consequence of out of control government here was relatively harmless in the end. But often it’s not. Similar mistakes are often made, with tragic results. When law enforcement forcibly enters someone’s home, they do so with firearms, which often are used against occupants – either human or canine. Because, they have to get home safe at night. Nobody else does, necessarily, but they must, at all costs. Protect and serve. When you have the peace-of-mind of qualified immunity, you can just act first and sort out the damage later. Or, as we used to say in football, “let the paramedics sort them out.” 

Fifth Circuit Gives Qualified Immunity to City Officials After Free Speech Retaliation Arrest of Councilwoman

On July 29, the U.S. Court of Appeals for the Fifth Circuit released a published opinion in the case of Sylvia Gonzalez v. Edward Trevino, Mayor of Castle Hills that now appears to be headed to the U.S. Supreme Court. This is an important First Amendment Retaliation case where qualified immunity is the key issue. Qualified immunity is the most important issue in the fight for the civil rights of the American people. It must be defeated, which is why you need to learn about cases like this, which the media will never tell you about.

Here’s the opinion:

The case is being litigated by the Institute for Justice. They filed suit for the plaintiff, Sylvia Gonzalez, a retired resident of Castle Hills, Texas, who decided to run for city council, and became the first Hispanic councilwoman in Castle Hills history. I spoke with the Institute of Justice attorneys litigating this case on the same day the opinion was released, and they seemed very optimistic about the future of this case at the Supreme Court. 

At Ms. Gonzalez’s first council meeting, she accidentally took home with her petition which had been debated at the meeting. It was laying in her stack of paperwork. It was later discovered that the petition was in her possession, which as it turns out, was technically a misdemeanor crime. The petition sought to remove the city manager. This town has fewer than 5,000 residents. During her campaign, Gonzalez learned that many residents were unhappy with the performance of the city manager. As her first act in office, she submitted this petition to the council. It was entirely unintentional that she ended up taking the petition home with her. She was supporting this petition and had no reason to suppress it or hide it. It was purely unintentional, and it was her first meeting as a councilwoman. 

Well, the city leadership was unhappy with Sylvia Gonzalez. After the mistake was discovered, the mayor, Edward Trevino, requested that a Sergeant in the Castle Hills Police Department file a criminal complaint alleging that Gonzalez took the petition without consent. The first officer to investigate, a Sergeant, determined that no crime had been committed. Well, that was unacceptable to the mayor and the chief, so they turned to a so-called “special detective.” The detective decided that Sylvia committed a violation of Texas Penal Code §§ 37.10(a)(3) and (c)(1), which provide that “[a] person commits an offense if he . . . intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” 

Special Detective Alex Wright obtained a warrant, and instead of using the typical procedure of obtaining a summons, rather than a warrant, for a nonviolent crime, as well as going through the district attorney’s office, the detective instead obtained a warrant and hand-delivered it to the magistrate himself. The use of this process prevented Sylvia from using the satellite booking function of the Bexar County Jail system, making her unable to avoid spending time in jail when arrested. 

There is clear evidence here that this was done with a retaliatory motive, in response to Sylvia Gonzalez’s support of the petition to remove the city manager and disturb their swamp status quo. Sylvia’s arrest enabled the city leadership to remove her from office, as well as to intimidate, punish, and silence her. There was plenty evidence of this. In fact, Sylvia was charged under a statute that has never before or since been used to arrest someone in her position. A “review of the misdemeanor and felony data from Bexar County over the past decade makes it clear that the misdemeanor tampering statute has never been used in Bexar County to criminally charge someone for trying to steal a nonbinding or expressive document.” Indeed, most indictments under the statute involved fake government IDs, such as driver’s licenses, social security numbers, and green cards. 

But here was the big problem: technically there was probable cause to charge her under the statute that was charged. So the question is, can law enforcement arrest and prosecute Sylvia in retaliation for her protected free speech, so long as probable cause exists to do so? In other words, this is like a mayor ordering the arrest of a political opponent for some minor crime like jaywalking, where technically the crime was committed, but where there never would have been any prosecution at all, but for retaliation against free speech. This is the dispute, and there is a split in the federal circuits. 

In the 2018 U.S. Supreme Court case of Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018), the Court held that a municipality could be liable under a Monell Claim where its leadership decides to selectively prosecute a particular person in retaliation for their speech. The federal circuits have differed on how broadly to interpret this holding. The Fifth Circuit, in last week’s opinion, has chosen a narrow interpretation. 

The jaywalking example is the ideal example, which was discussed in the opinion:

“If an individual who has been vocally complaining about police conduct is arrested for jaywalking,” the claim should not be dismissed despite the existence of probable cause because “[i]n such a case, . . . probable cause does little to prove or disprove the causal connection between animus and injury.” 

 The Court “conclude[d] that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 

Basically, their conclusion was that since no prior council-person had been prosecuted by the city for taking a petition home with them, then there was no evidence to support a theory of retaliatory selective prosecution. This is of course, absurd. This is like saying that law enforcement may engage in retaliatory prosecutions, so long as they choose a creative statute that has never been used before against the same type of defendant. 

The fact is, that Sylvia Gonzalez engaged in highly protected First Amendment conduct, and that as a result of that conduct, a conspiracy of government officials took a material adverse action against her for purposes of retaliation. This is already prohibited under federal law. As the dissenting federal judge noted in his dissent, the police officers and city leadership have been on notice of a string of legal authority, dating all the way back to 1689, that it’s unconstitutional to jail people in response to their petitioning the government.

Hopefully the U.S. Supreme Court will overturn this. The Institute of Justice is doing some great work, not just in this case, but in many different cases across the country. They are likely even jumping into one of my cases, so stay tuned for that. Check out the youtube video the Institute did on the Gonzalez case, back when they first started. There’s a donation link. They need donations now, more than ever. Please donate, if you want to help fund the fight against qualified immunity and government corruption. Here’s the Institute’s video on the case, with donation link:

Here’s the district court order, which originally denied qualified immunity, and which the defendants appealed to the Fifth Circuit:

And here’s the IJ’s response brief to the motion asserting qualified immunity to the district court, which is fantastic:

Tased and Arrested in Walmart – Lawsuit Filed

You may have seen the video I posted back in January of 2021 showing my client being arrested in a West Virginia Walmart for bringing an uncased shotgun into the store. He brought the shotgun into the sporting goods section in order to determine if they had any slings that would fit. 911 calls ensued from store employees. What happened was captured on surveillance footage. Well, big update today. Here’s the Complaint:

W. Va. Code § 61-3B-2 provides that for conviction of trespass in a structure or conveyance, the potential sentence is only a fine of not more than $100.00. There is no possibility of incarceration under the statute. As the West Virginia Supreme Court observed in State ex rel. Forbes v. McGraw, 183 W.Va. 144, 394 S.E.2d 743 (W. Va. 1990), pretrial incarceration of a defendant for an alleged standalone violation of § 61-3B-2 would be improper because incarceration is not a potential penalty of the offense. § 61-3B-2 also expressly requires that the suspect refuse to leave the premises. Fortier never asked, or gave Plaintiff the opportunity, to leave the premises. 

Nor could Fortier have established that Plaintiff committed the crime of obstruction in violation of WV Code § 61-5-17(a), as at no time did Plaintiff fail to do exactly as ordered by any law enforcement officer. Lastly, I’ll just point out that open carry of firearms is perfectly legal in West Virginia, as we are a constitutional carry state. Mr. Lanham is not, and was not a person prohibited from being in possession of a firearm. Both handguns and longarms are legal to openly carry in West Virginia. Thus, the shotgun was carried in conformance with West Virginia law. That being said, a private property owner may prohibit firearms in their store. Assuming they do so, the violation of a store firearms prohibition policy is not a crime in West Virginia.

Here’s a recap of the footage and an update on the lawsuit:

As you can see in the video, at the time Plaintiff was tased, his hands were in the air, the shotgun was no longer in his possession, and he had walked to the wall, as directed by the defendant officers. He had fully complied with their directives and objectively gave the officers no indication that he posed a threat to anyone. No objectively reasonable police officer could have perceived the Plaintiff as posing an immediate threat to the safety of any individual. He was compliant and was not physically resisting. Here, Plaintiff had committed no crime, and while the officers had been called to the location by employees of Walmart, there was no indication that Plaintiff had committed any crime at all, much less a serious crime. There was no allegation that he was a physical threat to any individual. Plaintiff was not subsequent charged with, or alleged to have committed, any crime, other than trespassing. The trespassing charge was subsequently dismissed. 

Plaintiff offered absolutely no resistance, and was tased unnecessarily. The unreasonableness of tasing the Plaintiff is demonstrated by the fact that the Kanawha County Sheriff’s Office has no record of any employee ever having tased the Plaintiff on August 1, 2020. In response to a FOIA request seeking the identity of the officer who tased the Plaintiff, and any documentation pertaining to the incident, they responded that they had no records regarding the incident. 

Also corroborating the fact that tasering the Plaintiff was unnecessary, the criminal complaint written and signed by Defendant Fortier stated that, “A Deputy with the Kanawha County Sheriff’s Office encountered the [Plaintiff] first, and was able to detain him without incident.” The narrative mentioned nothing about the need for any use of force, nor the application of any use of force, including tasering, against the Plaintiff. Indeed, the narrative claimed that no incident occurred, much less a taser deployment. 

The third and final count of the lawsuit is also a Fourth Amendment violation, similar to the first count. However, whereas Count One was for the warrantless arrest of Mr. Lanham, Count Three focuses on the fact that Mr. Lanham was needlessly and maliciously prosecuted, even after his arrest. He ultimately obtained the dismissal of the criminal charge. That was inevitable. But they prosecuted him anyways, as if they felt some need to just go through the motions. 

During the processing of Plaintiff’s arrest, Defendant Fortier expressed to Plaintiff that even though it was legal for him to openly possess and carry firearms in West Virginia, that he needed to charge him with something just by virtue of the fact that they responded and the media began to report on it.  During the litigation of the criminal charge, Plaintiff retained counsel (me), who served a FOIA request on the City of Nitro, requesting the video footage of the incident, which they had obtained from Walmart. In response to the FOIA request, Defendant Fortier expressed to Plaintiff that since he went to a lawyer, he was no longer going to agree to the dismissal of the frivolous prosecution, which he had previously intended to do. 

Eventually, the charge was dismissed when the prosecuting attorney and municipal judge realized that Plaintiff could not have committed the charged offense. However, at the urging of Defendant Fortier, the dismissal of the frivolous prosecution was needlessly delayed, causing unnecessary additional damage to the Plaintiff. 

Here’s the original video posted last year:

Cops Arrest Homeless Vet for Being in a Median and do This to His Dog, Sunshine

Just released, body cam footage shows Gastonia, North Carolina police arresting a homeless veteran, suspected of panhandling in a median, and tasing his dog, named Sunshine. Unfortunately, Sunshine didn’t make it. This is brand new footage, ordered released by a judge, against the will of Gastonia law enforcement, who fought the release of the footage, supposedly to guarantee the homeless vet, Joshua Rohrer, a “fair trial.” Yeah, right. If law enforcement doesn’t want you to see it, then you probably need to see it. 

Here’s the raw footage:

In the applicable jurisdiction – the Fourth Circuit – these cases seem to come out of North Carolina. There is a very recent published opinion out of the Fourth Circuit – Ray v. Roane – which deprived police officers of qualified immunity in a civil lawsuit for shooting someone’s dog. Here’s a video I just did a few weeks back in June on another similar video:

As an initial matter, it is well-settled that privately owned dogs are “effects” under the Fourth Amendment, and that the shooting and killing of such a dog constitutes a “seizure.” So it’s a different legal standard that standard police shooting cases. It’s an overall reasonableness standard, recognizing that police can shoot dogs where officer safety justifies the decision. 

The question is whether, at the time the officer shot the dog, he held a reasonable belief that the dog posed a threat to himself or others. If the facts are sufficient to show that such a belief was unreasonable, then the law is clearly established in the Fourth Circuit that shooting a dog under those circumstances would constitute an unreasonable seizure of Mr. Rohrer’s property under the Fourth Amendment. That’s not a great way of looking at the value of our dogs, but that’s the actual legal analysis.

Here, the tasing officer, Maurice Taylor, claims that the dog “bit his boot.” Although I snipped the footage for Youtube reasons, you can click the link and watch the entire raw footage on Mr. Rohrer’s channel. You can see that the tasering took place well after the dog allegedly bit the boot. Immediately after the officer claims the dog bit the boot, you can see the dog wagging its tail. I have my doubts. Perhaps what really happened is the dog came up to him, wagging his tail, and Officer Friendly kicked her in the face. They don’t call them “jack booted thugs” for nothing. 

That reminds me of the officer from yesterday’s video, where the guy he beat up actually attacked his fists. At the point where the taser is deployed, the arguable officer safety concern actually involves his partner. You can see the dog on video at this point, and the dog clearly doesn’t make any move to attack the partner. 

All-in-all, the response to this itself speaks of the lack of reasonableness of the decision under the circumstances. And how many cops were present towards the end of the footage. Fifteen? Twenty? Who is paying these people, and where are they now? 

Police Officer Michael Amiott Fired, Rehired, Sued, and now Prosecuted Live

There’s a jury trial in Euclid, Ohio this week where Euclid police officer, Michael Amiott is being prosecuted for a use of force incident following the 2017 traffic stop of Richard Hubbard. Amiott is charged with two counts of assault and one count of interfering with civil rights. Cell phone video showed the officer repeatedly punching Richard Hubbard after he was pulled over for an unspecified moving violation.

Hubbard was accused of resisting arrest after allegedly refusing Amiott’s orders, and the ensuing struggle resulted in Hubbard being hit multiple times while on the ground. The criminal charges against Hubbard were later dropped, and while he suffered no permanent injuries, the city later agreed to a $450,000 settlement with both him and the owner of the car he was driving.

Following a 45-day suspension, Euclid Mayor Kirsten Holzheimer Gail fired Amiott from the police force, but an independent arbitrator reinstated him a year later. Nevertheless, Amiott was arrested and charged in Euclid Municipal Court in August of 2019 following further investigation, and his trial was subsequently delayed two years by COVID-19.

The entire trial has been live streamed on Youtube by WKYC and some of the testimony has been interesting. This is what we’re dealing with by the way, in the mission to obtain some accountability where citizens are violently victimized by the government.

Also, this isn’t his only excessive force incident:

SWAT Style Entry for Scary Crime of No Building Permit

Someone sent me another interesting video from Tik Tok, this time showing cops making an entry into a home pursuant to a search warrant, guns drawn, due to the alleged high crime of failure to obtain a building permit. Here’s the footage:

You can hear them yell search warrant and then abruptly make entry, which is very close to a no knock entry. There is a constitutional requirement that police officer knock and announce their presence prior to making entry, even with a valid search warrant. There are exceptions for where a no knock warrant is obtained, or where exigent circumstances are presented at the scene, assuming the dangerousness presented wasn’t known prior to the warrant being obtained.

Assuming this is true that the search warrant was obtained due to a failure to obtain a building permit, I have some issues with this. Just because a search warrant is obtained, that doesn’t entitle law enforcement to treat the homeowner like she’s a drug dealer or known violent felon. Police still must act reasonable in executing a search warrant. This requires adjustment for the particular facts of the situation.

Merely executing a search warrant doesn’t justify pointing a gun at someone, assuming someone had been in the home. But alas, this is the world we live in, because we have allowed the government to do what it does best. For this reason, I’m glad that I live in a jurisdiction where there are actually no building permits. Do the buildings fall down around us? No, no they don’t. Just like the fact that we could fire every employee of every state barber and cosmetology board in the nation, and we’d all survive; we’d all be fine.

Government needs to be drastically downsized. How many cops were involved in this? Did they just need some extra hand-on-gun time this month? It’s too bad these tough guys weren’t in Uvalde. All-in-all, I’m sure most judges would allow what’s occurred here. But I wouldn’t. This is unreasonable. Fire everyone involved and don’t replace them. That’s what I’d do.

UPDATE 8/2/22:

The homeowner reached out and spoke with my today, also providing copies of the underlying documents. It only gets worse with more information. Check it out:

The “Inspection Warrant:

The underlying “affidavit”:

Former Logan PD Officer Sentenced to 9 Years for Civil Rights Violations

About 7 months ago, I posted a video about a West Virginia police officer, Everette Maynard, formerly of the Logan, WV Police Department who was found guilty by a federal jury of violating an arrestee’s civil rights by using excessive force. This was caught on video. This is the one where the officer was caught by a surveillance camera flipping the bird to the camera. 

Today I talked to one of the investigators involved with that prosecution and thought I would give you an update video about what ended up happening to Officer Maynard. The DOJ recently issued another press release on the case, announcing that former-Officer Everette Maynard has been sentenced to 9 years of prison to be followed by 3 years of supervised release due to his conviction of violating an arrestee’s civil rights by using excessive force against him.

In the video I posted late last year, I showed you the actual photos presented to the jury during the trial, and I went over the actual jury instructions used in that case. Here’s the video:

This is a rare case of a police officer being held accountable in the most important way. He received almost a decade in prison for his actions. The U.S. Department of Justice had this to say about the sentencing of Maynard: 

“This defendant’s abuse of law enforcement authority inside a police station was egregious and caused serious injuries,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “Police misconduct undermines community trust in law enforcement, and impedes effective policing. This sentence confirms that law enforcement officers who use excessive force against arrestees will be held accountable.”

Title 18, United States Code, Section 242 makes it a crime to deprive any person of his civil rights under color of law.  For a jury to find the defendant guilty, the federal prosecutors must prove each of the following elements beyond a reasonable doubt at trial:

1. The defendant acted under color of law;

2. The defendant deprived the victim of a right secured or protected by the Constitution or laws of the United States – here, the right of an arrestee to be free from unreasonable seizures, which includes the right to be free from the use of unreasonable force by a law enforcement officer; 

3. The defendant acted willfully; and

4. The defendant’s acts resulted in bodily injury to the arrestee. 

(NOTE: elements 1 and 2 are by themselves a misdemeanor; when elements 3 and 4 are present, it rises to the level of a felony.)

On Nov. 17, 2021, a federal jury convicted Maynard of using excessive force against an arrestee while Maynard was a police officer with the Logan Police Department in West Virginia. At trial, the jury heard evidence that Maynard assaulted the victim in the bathroom of the Logan Police Department before dragging him into an adjoining room, hauling him across the room, and ramming his head against a doorframe.

The assault initially rendered the victim unconscious and left him with a broken shoulder, a broken nose, and a cut to his head that required staples to close. While the defendant assaulted the victim, the defendant berated the victim for “making demands” of him by, among other things, asking to go to the bathroom. After the assault left the victim unconscious in a pool of his own blood, the defendant bragged about his use of force.

It’s important to note that, in this actual case, the jury was instructed that a police officer “may not use force merely because an arrestee questions an officer’s authority, insults the officer, uses profanity, or otherwise engages in verbal provocation – unless the force was otherwise objectively reasonable at the time it was used. Additionally, the jurors were instructed that an officer may not use force solely to punish, retaliate against, or seek retribution against another person. 

These sorts of unnecessary uses of violent force against arrestees, if true, can never be reasonable. 

How did the jurors know that it happened this way? Because it was captured on video, which is by-far the most important tool available to us for constitutional accountability. The police certainly like to use video evidence against the public in their prosecutions. But they don’t like it when it happens to them. In this case however, I’m told that it was actually a law enforcement officer who originally blew the whistle on this guy to federal investigators. Good for that individual. There needs to be more of this. And I have reason to believe that there will be more of this in West Virginia. 

Greenbrier County First Amendment Audit Video

My email inbox blew up this weekend after a nationally-known First Amendment auditor on Youtube, Long Island Audit, posted a video of his interaction at a courthouse that is local to me, in Greenbrier County, West Virginia. Here’s the video:

People have been asking for my take on this video. Given the fact that I have an office a stone’s throw away from where this was filmed, I’ve been in that courthouse many times. In fact, I was first sworn in to practice in West Virginia circuit courts in that very courthouse.

As you see in the video, here are the relevant facts. The auditor enters the courthouse. You do have to go through security to get in. You don’t get ID’d, but you go through a metal detector, and mind you, they’re filming you as you walk in as well. He goes into the county clerk’s records room, which is where they keep the property deeds, surveys, etc., and was asked to leave. A courthouse security officer then approaches and says he’s not allowed to film there. Then he makes his way eventually to the county commission room, where he speaks with the actual elected sheriff and an attorney. He explains what he’s doing, but declines to give his full name. At that point he’s asked to leave. On the way down the stairs, the deputy escorting him gets in his face, and at one point asks where he’s from. Once outside, that deputy then says that he has decided to demand his ID, because he’s now undertaking an investigation of a suspicious person who was making people in the courthouse “uneasy.”

Let’s sort through the legal issues here….

Courthouses in West Virginia have some confusing legal authorities presiding over them. There’s really three separate governmental authority figures: the court, the sheriff, and the county commission. There is one West Virginia Supreme Court case discussing this, which is State ex rel. Farley v. Spaulding (WV 1998). It notes that Article 8, Section 6 of the WV Constitution provides that, subject to the approval of the State Supreme Court, the local circuit court has the “authority and power” to establish local rules to govern that particular court, including administratively.

However, at the same time, Article 9, Section 11 of the WV Constitution provides that the local county commission possesses the police powers in their county, including at courthouses. Additionally, State Code (WV Code 7-3-2) mades that the county commission is responsible for providing a “suitable courthouse” at their expense, also possessing the authority and obligation to provide for courthouse security via the local elected sheriff.

Thus, the county sheriff is responsible for courthouse security. However, the court is ultimately in control of its courtrooms, generally speaking.

West Virginia State Trial Court Rule 8 provides that permission of the court is required “in and around the courtrooms” during judicial proceedings, which is granted at the discretion of the presiding judge. Trial Court Rule 8.05 provides that coverage of nonjudicial meetings “in the courtrooms” is also subject to permission, with the “concurrence of the sponsoring group.”

As for the ID laws in West Virginia, there is no state law requiring pedestrians to produce their ID. If there were, generally speaking, it would constitute a violation of the Fourth Amendment where reasonable suspicion was absent. The Fourth Circuit has previously denounced police officers seizing individuals based on non-particularized, general assumptions about suspects, which may be based on irrational, speculative, or otherwise improper fears, biases or falsehoods. (US v. Black 4th Cir. 2013).

Even with reasonable suspicion, the West Virginia Supreme Court of Appeals has held that in a non-traffic investigative detention, that refusal to identify oneself to a law enforcement officer does not, standing alone form the basis for a charge of obstructing a law enforcement officer. (State v. Snrsky WV 2003). “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” State ex rel. Wilmoth v. Gustke (WV 2003).

On the charge of allegedly obstructing an officer, in violation of WV Code § 61-5-17(a), the plain language of the statute establishes that a person is guilty of obstruction when he, “by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity.”

The 4th Circuit recently held that in West Virginia, “lawful conduct is not sufficient to establish the statutory offense” of obstruction. They noted that West Virginia courts have held that “when done in an orderly manner, merely questioning or remonstrating with an officer while he or she is performing his or her duty, does not ordinarily constitute the offense of obstructing an officer.” (Hupp v. State Trooper Seth Cook 4th Cir. 2019).

Regarding the right to record, the federal district court in the very jurisdiction where this occurred held on July 13 of this month that there is a clearly established First Amendment right for a citizen record police, noting that federal circuits around the country have found a protected First Amendment right to film matters of public interest, including recording police officers conducting official duties in public. (Gibson v. Goldston SDWV 2022).

Ultimately, a citizen does have a First Amendment right to record their in-person public records request at a county courthouse, so long as they are otherwise engaging in lawful conduct. Doing so cannot be used to detain and forcibly ID the individual based on subjective irrational fears of law enforcement who decide to then conduct an “investigation” of the individual as a “suspicious” person. 

A forcible detainment and ID of the individual would be a Fourth Amendment seizure that would be unreasonable, and therefore unlawful. 

Moreover, there can be little question that a First Amendment auditor in the process of filming his interactions with public officials is engaging in First Amendment protected activity. To prohibit him from continuing to do so, unless he provides identification, is interference with his First Amendment rights. Subsequently demanding his identification, under threat of arrest for obstruction, as a result of his protected activity is very likely First Amendment retaliation. 

Update on My Creepy Cops Search Case of Putnam County WV

I get asked all the time for an update on the Creepy Cops Search case out of Putnam County, West Virginia, where plain-clothes police officers from the sheriff’s department’s “Special Enforcement Unit” were caught on hidden camera literally breaking into my client’s home, sneaking in through the window, searching the inside of the house for non-existent drugs. To see footage of police officers secretly inside someone’s home, where there’s no criminal investigation, or even charges, and where there’s no legal justification, is scary.

This was actually my first Youtube video, uploaded January 15, 2020. The footage shows the drug task force officers searching Dustin Elswick’s house, including examining the ashes of his deceased friend, brilliantly believing them to be drugs. They also ran those ashes through field drug test kits, disabled an exterior surveillance camera, pulled Dustin’s guns out of storage for photographs, and generally ransacked and searched the place.

Until I uploaded the video two and a half years ago, they had no idea they had been caught on video. I first provided the video to federal prosecutors, who in turn provided the video to the FBI for investigation. I didn’t know this at the time, but the FBI agent tasked with the investigation didn’t investigate, but rather just tipped off the officers that I had a video showing them in Dustin’s house. I only found this out much later, after a lawsuit was filed and discovery was exchanged.

A federal civil rights lawsuit was filed on August 20, 2021 against the individual officers, as well as against the county for creating and allowing this drug task force to operate in the first place. The federal court denied Putnam County’s motion to dismiss the pattern and practice (Monell) claim, issuing a memorandum opinion explaining the basis for liability.

Right now the case is set for jury trial in federal court in Huntington, West Virginia on February 22, 2023. There were also two companion case lawsuits filed, on behalf of other plaintiffs, the Johnson family, as well as Mason Dillon, which are also currently pending and set for trial. However, this is the only one that was caught on video. The Dillon case is set for trial on January 18, 2023. The Johnson case is set for trial on January 31, 2023. As of right now they have not been consolidated with the Elswick case.

Discovery has been exchanged, so we now know a lot more. However, depositions have not yet occurred, having been delayed several times due to the defendants’ concerns over a renewed FBI investigation, following the disclosure that the initial FBI investigation was more of a locker room pat on the butt, than an investigation. I suspect that the current FBI investigation could be actually an investigation of the initial FBI investigation, but I have no idea as of right now. What I do know is that we are finally set for depositions of the officers to take place at the end of this month. It will be interesting to find out whether the officers will plead the Fifth Amendment. I honestly hope that they don’t. But either way, I already have their statements from the still-confidential internal investigation. So if they don’t want to answer questions, there are mechanisms in place for me to utilize their prior statements.

What I can tell you is that there is no good explanation here. There are some excuses and some finger-pointing. But there is no great defense here. I believe that it will be determined that some of the officers are more culpable than others. Which is why I hope that at least those officers will be willing to tell the story. It’s an interesting tale that resulted in the end of the Special Enforcement Unit, but not the end of the officers’ employment. Though there’s more to the story that isn’t out yet.

Remember, your home is your castle, and is the most protected place there is under the Fourth Amendment. Any search or seizure by the government that takes place in the home is automatically unconstitutional, by default, unless the government can prove otherwise, in the form of a valid warrant, or valid exception to the warrant requirement. There are only two exceptions recognized by the U.S. Supreme Court: consent and exigent circumstances. Consent must be voluntary. Exigent circumstances require something akin to an emergency situation.

Also, when it comes to consent, as I’ve explained previously, a landlord cannot authorize the government to search the residence of a tenant, as per the Supreme Court in the 1961 case of Chapman v. United States. This also extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room.

These cases tend to speed up towards the very end, which is where we are now. So there will likely be a big update, or updates, very soon. We have a mediation scheduled in August, which is an opportunity for both sides to discuss potential settlement resolutions. In this case, which is a civil rights lawsuit, the potential remedy available to a plaintiff is money. So that’s where money will be discussed, for the most part. If that falls through, we’ll sort it all out at trial.

Police Caught on Doorbell Video Removing FJB Flag

A video went viral on Tik Tok showing Ring doorbell camera footage of a police officer removing a family’s “F” Joe Biden flag from its display on the front of the home. The homeowner explained in a subsequent video that he had been previously threatened with arrest for good ‘ole disorderly conduct if he continued to display the flag. Is this a violation of the First Amendment? What about the Fourth Amendment?

Back in February, I discussed the “F” the police T-shirt case out of Ohio, where the 6th Circuit issued an opinion denying qualified immunity to police officers sued for arresting a man for “disorderly conduct” for wearing a shirt containing protected First Amendment speech. In that case, the Court made very clear that police academies have to stop teaching young officers that any use of profanity is disorderly conduct. To the contrary, the law is clear that the First Amendment protects the use of profanity, so long as it’s unaccompanied by other conduct that could be construed as disorderly. Thus, the use of the “F word” in and of itself cannot be criminal conduct.

“It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’”

Cohen v. california scotus 1971

Not only can the “F word” be used, but it can be used to verbally criticize the police. Or, in this case, Joe Biden. As the U.S. Supreme Court has held, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state….”

Moreover, expressing criticism of a sitting U.S. President, via use of a flag, is pure First Amendment protected activity. The homeowner mentions in his follow up video that he had researched the town ordinances, and none were applicable, but rather that the mayor lived down the street and held an opposing political ideology. I’ll note that, even if there were a town ordinance, it would be unconstitutional, as a violation of the First Amendment. Now an HOA would be another matter, potentially. Why? Because that’s a private organization, and therefore cannot violate the First Amendment.

Also, what about the Fourth Amendment? As I’ve explained numerous times, the front porch of your home, which would include a flag sticking out of it, is considered part of your home – your castle – for Fourth Amendment purposes. If a police officer walks up and seizes a part of your home – something off of it – is that a seizure? You better believe it. Is it illegal? Illegal in this context means “unreasonable.” Unreasonable, when it comes to your home, is defined with a question: was there a warrant? No, then it’s illegal as a violation of the Fourth Amendment.