Update on the Walker Case (Fourth Amendment Open Carry Lawsuit)

In case you’re following along with the Walker v. Donahoe, et al. Fourth Amendment open carry civil rights lawsuit, we have a jury trial scheduled for February 19, beginning at 8:30 a.m. at the federal courthouse in Huntington, West Virginia. As of right now it’s still on.  Both sides have asked the court for summary judgment, which basically means that both sides claim to have the law completely on their side.  The court has not ruled as of yet. Pretrial documents have been submitted, including motions in limine, which are trial issues anticipated by the parties, which are best argued prior to the start of the trial.  If you haven’t seen the video of the incident in dispute, here it is:

The defendants are seeking to exclude portions of this video showing the “investigatory detention” of Michael Walker by the Putnam County Sheriff’s Department.  Not surprisingly, they want the part of the video where the police officer calls Michael a “co*ksucker,” repeatedly, among other things to be kept away from the jury.  Here’s their argument:

Also not surprisingly, we strongly disagree.  Here’s our response.  The judge will decide at some point, and generally has the broad discretion to control the flow of what the jury gets to see, and what they don’t:

We also filed a few motions in limine of our own, including our attempt at stopping the defendants from bringing up the Parkland school shooting, which they have announced is their attention, and which has absolutely nothing to do with the case.  They are also seeking to make the case that because Michael had an AR-15 style rifle, that a reasonable officer could suspect him of being a potential school shooter, or something to that effect.  Which is of course highly offensive, and antithetical to both the Fourth Amendment and the Second Amendment to the U.S. Constitution:

In case you’re curious about the current status of laws pertaining to the open carrying of firearms in West Virginia, check out the last post I did on it.  It should still be the same. Of course, this case could change that if it doesn’t go our way…..

Update on the Drug Task Force Civil Rights Lawsuit out from Fayette County, W. Va.

Here’s an update on the Fourth Amendment civil rights lawsuit we filed in the Sizemore case, which involved a federal criminal prosecution which was dismissed following a federal judge making a finding that officers in the Central West Virginia Drug Task Force made false statements to a magistrate in order to illegally procure a search warrant. We filed suit to establish civil liability for a violation of the Fourth Amendment, which specifically requires probable cause and a search warrant.

Well, we made it past the defendants’ motions to dismiss, and now we are proceeding to the discovery stage, which is essentially the exchange of information and the questioning of witnesses via depositions. The federal court denied the motions, and has ruled that we get to proceed.

You can look back at my last update to read their argument, as well as our response.  As I predicted then, it didn’t turn out as they expected.

From the order:

First, I must note this Court is at a loss to understand Defendants’ assertion that because this case involves “a search warrant, rather than an arrest warrant,” it therefore “does not require a showing of probable cause.” Defs.’ Mem. Mot. Dismiss [ECF Nos. 6, 9]. More confusing, Defendants cite favorably to Illinois v. Gates, 462 U.S. 213 (1983), a case which describes the standard for probable cause in a search warrant. Though puzzling that this is necessary to explain to a member of the bar, “the Fourth Amendment requires that no search warrant shall issue without probable cause.” United States v. Daughtery, 215 F. App’x 314, 316 (4th Cir. 2007).

Indeed, the text of the Fourth Amendment, which has been in place since the adoption of our Constitution and Bill of Rights, states that individuals have the right to be protected “against unreasonable searches and seizures,” and “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV (emphasis added). And a search and seizure without probable cause is unreasonable. Miller, 475 F.3d at 627. This is especially true for searches of the home, which “is first among equals” regarding the Fourth Amendment. Yanez-Marquez v. Lynch, 789 F.3d 434, 464–65 (4th Cir. 2015) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)).

Yep. It says “probable cause” in the Constitution. Hard to get around that…..

 

As previously explained, Defendant Morris violated Plaintiffs’ Fourth Amendment protections. Thus, the next question is whether the violated right was clearly established at the time of the events in question. “[I]t has long been established that when law enforcement acts in reckless disregard of the truth and makes a false statement or material omission that is necessary to a finding of probable cause, the resulting seizure will be determined to be unreasonable.” Gilliam v. Sealey, 932 F.3d 216, 241 (4th Cir. 2019); see Franks, 438 U.S. at 157.

As the Fourth Circuit has explained, “a reasonable officer cannot believe a warrant is supported by probable cause if the magistrate is misled by statements that the officer knows or should know are false.” Miller, 475 F.3d at 632 (quoting Smith v. Reddy, 101 F.3d 351, 355 (4th Cir.1996)).

Putnam County Creepy Task Force Search Video

Just in case you haven’t seen this making the rounds yet, I uploaded this to Youtube. It’s too big for this site, and I’m done hosting videos directly to Facebook, because they censor everything these days.  The video is pretty self-explanatory.  We will be filing a federal lawsuit.  If you know something, or you have a video of your own, or a similar incident, please let us know.

Hyprocracy, politicians, and the Constitution

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.”

(https://www.wvgazettemail.com/…/article_81ecbc65-dc81-575a-…)

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…..

Episode 1 of the JOHN BRYAN PODCAST – impeachment, constitutional law, gun laws, self defense laws, and glucose meters are screwed up….

https://www.podbean.com/eu/pb-tqqbg-cb4067

Check out Episode 1 of the John Bryan PODCAST, where I pontificate on several topics, including impeachment evidence we’ve supposedly been hearing about, some search and seizure issues pertaining to the open carry of firearms, some self defense firearms issues, and a really crazy discovery that generic brand blood glucose meters, used by diabetics, are apparently way, way off……

 

Update on the Sizemore “search and seizure” civil rights case

Here’s an interesting, and academic (for Constitution nerds), update on the Sizemore federal civil rights lawsuit, which had been in the news recently.

This is the one where the drug “task force” had found heroin in the client’s home, but the case was dismissed after a federal judge found that the officers had made numerous false statements to the magistrate in order to get the search warrant.  This is also actually the case I last posted about, since I haven’t been posting much on here lately.

Should the fact that officers were found to have made false statements under oath to get a fraudulent warrant, have been allowed to go away quietly since drugs were actually found, or should something have been done about it?  The news media wasn’t happy about it, necessarily, but I elected to do something – heroin or no heroin.  And here’s why:

Either “equal justice under the law,” etched into the walls of the Supreme Court, is just decoration, or it actually is enforced and put into practice.

Here is the response brief we just filed to some of the defendants’ motion to dismiss.  I really enjoyed writing this one, because it was as if I were back in my old baseball days, and being a kid who was bigger than most, the pitcher gave me an underhand slow pitch, just begging me to hit it out of the park.  Maybe I’m missing something, but I don’t think so.  I really look forward to reading the outcome of this one.  I don’t think it’s going to turn out like they had hoped . . . .

 

Here is the motion to dismiss the defendants filed:

 

Here is the original Complaint itself:

 

New Civil Rights Case Filed out of Fayette County: Sizemore vs. Members of the WV Drug Task Force

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.

Sizemore Complaint

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:

Sizemore Suppression 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…..