I know that many people are following my progress in the Creepy Cops Search Case out of Putnam County, West Virginia, where drug task force police officers were caught on camera illegally searching my client’s house. That apparently includes those officers and their lawyers in the pending federal civil rights lawsuit. This is the most recent update about the case:
On Friday, the defendant officers’ lawyers filed a motion completely centered on my Youtube channel, requesting an order prohibiting me from ever publishing video deposition testimony of those police officers. Basically they’re requesting court approval for a coverup. Now, important First Amendment issues are implicated. Police already have qualified immunity. The one remedy given to us by Congress it to sue them. Now they want to turn that process into something akin to Family Court or abuse and neglect proceedings, where government gets to operate in secrecy and without accountability and exposure. Here’s the motion they filed:
The video depositions in the Creepy Cops Search Case haven’t even been taken yet. They’re actually scheduled to be taken in a few days. I already agreed to postpone them several times already at their request, because they were concerned that the FBI was investigating them. So I gave them time to evaluate their situation and hire or consult criminal defense attorneys before they testified. Now, they want to testify essentially in secret. Why? Because posting their video testimony allegedly puts them in danger. They went through the prior videos I published on this situation and cherry picked the craziest ones they could find, and presented them to the Court as the basis for why I should be forever silenced from exposing their misconduct.
At the end of every video I tell you that freedom is scary. Why? Why is it scary? Fear is the tool that tyrants use to subject us and take away our freedoms. Over and over again. From the beginning of recorded history to the present. Of course police officers in America, if given the choice, would choose to operate in secrecy. They don’t want to be recorded. They don’t want to give you their names – they just want yours.
Here is part 2 of the body cam footage from the arrest of Jason Tartt by Deputy Dalton Martin of the McDowell County, West Virginia Sheriff’s Department. The part 1 video and lawsuit is posted here.
Pasco County, Florida, once-again, where we now get to see the body cam footage from where the cops served an eviction at the wrong house. The body cam footage is hilarious:
Body cam footage submitted by Janet, of Union County, Illinois, shows her son, who suffered from meth-induced mental illness, being tased by police officers. Imagine parents calling 911 for an ambulance, and instead, police officers, aware that they have a warrant for the son, show up instead, and without an ambulance. Instead of medical treatment, the use force.
Jacob Anderson’s father called 911 seeking an ambulance for his son, who was suffering a mental illness emergency due to his meth addiction. An ambulance never arrived however. But several police officers did arrive, including Deputy Schildknecht, who turned on his body cam after arriving at the Anderson home. According to his report, he noted that he received a report that Jacob was having a mental health crisis, described as psychotic, and that an ambulance was needed. He then wrote, “I also knew that Jacob had a felony warrant . . . as well as history of running away naked from help when we arrived.” Upon arriving, the deputy made contact with Jacob’s parents, who indicated that Jacob was inside the residence, and appear to have let them in.
Deputy Schildknecht wrote in his report, “As I approached the door I could hear a male yelling. I then withdrew my taser and knocked on the door. I then heard the male yell “come on through, I’m going to the side door.” “As I walked through the residence and came the side door, Jacob saw me, turned and began to run away from me. “At this point i raised and fired my taser at him as he ran away.” “I was unable to issue a warning to him because the situation evolved so quickly.”
The deputy wrote that he “allowed the taser to run for the five second cycle until Sheriff Harvel and Chief Wilkins could get there to assist.”
This offers a good example of what I would classify as controversial use of a taser: against someone who poses no threat, but is merely starting to run away, and doing so immediately without explanation or warning. Let’s take a look at the footage, and then we’ll go into the law on tasering unarmed suspects in Union County, Illinois, which is the 7th Circuit.
Here’s the relevant portion of raw footage that Youtube won’t let me show without restricting the video:
He also mentioned in his report that, “After the arrest of Jacob, I realized he broke my Oakley Mercenary sunglasses [he] had been wearing…” He attached a photo of them, noting that he paid approximately $140.00 for them two years ago.
to protect the officer or others from reasonably perceived immediate threat of physical harm from the person to be exposed to the ECW;
to restrain or subdue an individual who is actively resisting or evading arrest; or
to bring an unlawful situation safely and effectively under control.
Should not be used:
on individuals who passively resist and are not reasonably perceived as an immediate threat or flight risk;
on individuals in restraints, except as objectively reasonable to prevent their escape or prevent imminent bodily injury to the individual, the officer, or another person;
however, in these situations, only the minimal amount of force necessary to control the situation shall be used;
when the officer has a reasonable belief that deployment may cause serious injury or death from situational hazards including falling, drowning, or igniting a potentially explosive or flammable material or substance, except when deadly force would be justified;
when the suspect’s movement or body positioning prevents the officer from aiming or maintaining appropriate body part targeting unless the risk of increased injury to the suspect is justified because of a perceived threat or flight risk.
Union County, Illinois is in the 7th federal circuit, which has quite a few published cases on when taser usage is considered excessive. Lewis v. Downey(7th Cir. 2009) held that the tasing of a jail inmate with no warning who wasn’t threatening the officer would be excessive, and ultimately categorized tasers as an intermediate level of force that is designed to cause severe pain. The Court noted that Courts generally hold that the use of a taser against an actively resisting suspect either does not violate clearly established law or is constitutionally reasonable. Thus, “actively resisting” may, or may not be sufficient justification for police to use a taser on a suspect.
But, what about active resistance from someone known to be mentally ill, who is not actively threatening anyone, but merely trying to run away?
In the 9th Circuit opinion in Bryan v. Mcpherson, the Court warned that, “The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense.” “[T]he use of force that may be justified by” the government’s interest in seizing a mentally ill person, therefore, “differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.” Bryan v. MacPherson(9th Cir. 2010).
The 7th Circuit has cited the 4th Circuit published opinion in Estate of Armstrong v. Pineville, which held that, “Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force.” Estate of Armstrong v. Vill. of Pinehurst (4th Cir. 2016).
Utilizing the Graham Factors, we can skip to the most important Graham Factor, whether the suspect poses an immediate threat to the safety of the officers, or anyone else at the scene. The video proves conclusively that there was no safety threat posed to any individual. He was running away and clearly wasn’t holding a weapon. Nor was he threatening anyone. Reviewing the deputy’s report, he admits that he tased Jacob in the back as Jacob turned to run away. He mentions no immediate safety threat as his basis for the use of force.
Now the second Graham Factor is met to some extent for the officers. He was actively evading them. However, they had not announced their presence, nor the reason for their presence. They had not identified themselves, or mentioned that they had a warrant. They pretty much instantaneously encountered him and then tased him. Was merely running away from the sight of law enforcement sufficient to constitute “active resistance” sufficient for a 5 second shock from the deputy’s taser?
Let’s look at the first and final Graham factor, the severity of the crime. There’s no allegation that Jacob had committed a crime. But he apparently did have an outstanding unnamed felony warrant. The officer’s report doesn’t mention any serious crime Jacob was alleged to have committed so as to necessitate an immediate tasing. Moreover, the reports also indicate that the officer was well aware of the fact that Jacob was suffering from a mental illness episode. Thus, the courts expect the officer to take that knowledge into account when deciding whether to tase Jacob, as opposed to tasing first, and asking questions later.
We’ve all seen the recent shooting footage out of Ohio. But that may have overshadowed another recent case where body cam footage was just released from the LAPD. Body cam footage reveals that just before officers shot an unarmed man holding an automotive part, that one of the officers said to the others, “it’s not a gun bro.” Then he was shot with no warning. Indeed, it wasn’t a gun.
Here’s the LAPD’s video:
Here’s the official account as per the LAPD:
On July 18, 2022, at around 7:20 p.m., Southwest Division patrol officers received an “Assault with a Deadly Weapon” radio call. The reporting party advised Communications Division that the suspect was armed with a black, semi-automatic handgun. Uniformed personnel observed the suspect matching the description listed in the comments of the radio call, walking on the north sidewalk of Martin Luther King Boulevard, just east of Bronson Avenue. Officers made contact with the suspect, who they believed was in possession of a handgun. The suspect refused to respond to officer’s verbal commands. As a uniformed supervisor arrived at scene, he also believed that the suspect was armed with a handgun. As the suspect walked away from the officers, he turned multiple times in their direction and pointed a black metallic object believed to be a firearm, which resulted in an Officer-Involved-Shooting (OIS). The suspect was struck by gunfire and taken into custody.
Determining whether an officer’s use of force violates the Fourth Amendment requires balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner (1985).That inquiry generally involves an assessment of factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor (1989).
In the context involved here, the Supreme Court has crafted a more definitive rule: An officer may use deadly force to apprehend a fleeing suspect only if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Garner , 471 U.S. at 11, 105 S.Ct. 1694. A suspect may pose such a threat if “there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm,” or if the suspect threatens the officer or others with a weapon capable of inflicting such harm. Id.
The key questions is whether the officer had an objectively reasonable basis for believing that the suspect posed a threat of serious physical harm, either to himself or to others.
The officer who fired here, fired from behind at a suspect who was running away from the officer. Thus it would be difficult to claim that he did so out of fear for his own safety at the moment the shots were fired. Did the officer therefore have an objectively reasonable basis for believing that the suspect posed an immediate threat of serious physical harm to others? The footage shows that no other individuals appear to be in immediate danger at the time the shots were fired. One police cruiser attempts to drive up and block the suspect’s path. Theoretically the officer, or officers, inside could be in harm’s way – though they also clearly were intentionally placing themselves in his path.
Perhaps the best argument for justification is what is known as the “fleeing felon rule” which arose out of Tennessee v. Garner. An officer can argue that permitting the suspect to escape posed a threat to the general public. A fleeing suspect’s escape can pose a threat to the public when police have probable cause to believe that the suspect has committed a violent crime. Deadly force to prevent such an escape can be reasonable if the suspect has demonstrated that he was willing to injure an officer who got in the way of his escape or that he was willing to persist in extremely reckless behavior that threatened the lives of all those around. (Orn v. City of Tacoma, Corp. (9th Cir. 2020).
Usually this would involve a vehicle pursuit, or some type of running gun battle situation, where the suspect has already tried to seriously injure someone. Here, however, though it was reported that the suspect pointed a gun at someone, the officers did not know that to be true as of yet. They had not observed him threaten anyone with a gun. They had not positively identified the person by that point. They merely observed that he was holding something that could be a gun, and that he refused to stop and talk with them. There’s no probable cause for the officers to believe that the suspect had committed any serious crime. The suspect was not given a warning of the imminent use of deadly force by the officers, which has been required by the 9th Circuit in prior cases.
To the contrary, here, the officers themselves were unsure of whether they many even had a gun. As we heard on the body cam footage, one of the officers said, “that’s not a gun bro.” And it wasn’t. At the end of the day, there is sufficient evidence here to deny qualified immunity and take the officer before a civil jury on an excessive force claim. The jury can decide whether the officer’s claims, whatever they end up being, are objectively reasonable.
In Richmond, Virginia, Kaya had just picked up some groceries and was walking home. She noticed some police officers bothering a homeless lady sleeping on a bench. She stopped to film them. You know what happens next…. She reached out to me and asked me to share her story.
Here’s the full video with the raw bodycam footage:
Quite a few people sent me this video of Travis Heinze being told to leave Turtle Lake, Wisconsin, for “loitering.” I’m pretty sure I watched this play out in Rambo First Blood. Is this constitutional? Loitering ordinances have been misused by law enforcement for many years. The problem is, they create a criminal offense based on one’s mere presence in a public place, with the lack of any criminal intent. Therefore the police get total power to define who is a criminal, and who is acting lawfully. Of course, this can, and is, misused by police. Which is why the federal courts have addressed the constitutionality of these statutes.
Melvin’s wife filmed his arrest. A federal civil rights lawsuit was filed. Here’s part 1 of the video deposition of the primary defendant police officer.
On August 19, 2022, Joshua Gibbons arrived at Aerojet Rocketdyne Corporation in Jonesborough, Tennessee. He sent me a link to his video of him getting arrested shortly afterwards. A few other people submitted this video as well.
The police officer, a deputy with the Washington County Sheriff’s Office, jumped straight into a warrantless arrest here. He needed probable cause to arrest Josh without an arrest warrant. There are three levels of interaction between a police officer and an individual:
A consensual encounter;
An investigatory detention; and
A warrantless arrest.
Number 1 requires nothing, so long as it’s objectively consensual. Fourth Amendment protections to not apply to consensual encounters.
An investigatory detention requires reasonable suspicion. Fourth Amendment protections do apply to detentions. They must be reasonable.
A warrantless arrest requires probable cause.
Here, the officer appears to have skipped directly to number 3, a warrantless arrest, which requires probable cause.
What is the basic criminal trespass law in Tennessee?
State v. Hollingsworth, 944 S.W.2d 625 (Tenn. Crim. App. 1996).
Before an accused can be convicted of criminal trespass, the State of Tennessee must prove beyond a reasonable doubt that (a) the accused entered or remained on the property, or a portion of the property, of another person, and (b) the accused did not have the owner’s effective consent before entering the property. Tenn.Code Ann. § 39-14-405(a)…
The accused’s knowledge that he or she did not have the “effective consent” to enter the property may be inferred from “(1) personal communication to the [accused] by the owner or by someone with apparent authority to act for the owner,” and (2) “[f]encing or other enclosure obviously designed to exclude intruders.” Tenn.Code Ann. § 39-14-405(a)(1) and (2).
State v. Lee (Tenn. Crim. App. 2000).
Knowledge that the person did not have the owner’s effective consent may be inferred where notice against entering or remaining is given by personal communication to the person by the owner. Tenn. Code Ann. § 39-14-405(a)(1).
Was he on public or private property? If he was on private property, did Josh have knowledge that he was on private property without the owner’s consent? As far as the issue over public or private property, more information is needed. With the information given however, we know the following:
Josh subjectively believed he was located within the public right of way. Being right on the edge of the public road, he very well may have been. You’ll notice that there was a fence a little further off the road. Josh was nowhere near that fence. Josh credibly demonstrated to the police officer that he subjectively believed he was on a public right of way, and not trespassing onto a private owner’s land. Secondly, the police officer didn’t know one way or the other whether Josh was within a public right of way, or on private property. Moreover, even if Josh was on public property, the officer admittedly didn’t know who the owner was.
Therefore, there’s a great case to be made that Josh could not have violated Tennessee’s criminal trespassing statute. Even if he was on private property, there’s no evidence that he had the requisite criminal intent to commit trespassing. Additionally, the officer performed almost no investigation prior to his warrantless arrest. Surprisingly he didn’t even bother to request Josh’s ID first. He just arrested him.
A West Virginia Deputy has been indicted by the feds. It just hit the news a few days ago. I figured there must be body cam footage of the incident, so I sent a FOIA request to the employer. I was holding off on discussing the case until I saw the footage. I’ve now received a response, and you’re not going to like it. Here’s what we know right now. Monongalia County Sheriff’s Office Deputy Lance Kuretza has been indicted in federal court for a felony civil rights violation after allegedly punching and pepper spraying a handcuffed suspect, as well as for attempting to cover-it-up by filing a false police report.
The DOJ issued a press release. I went ahead and pulled the unsealed indictment off pacer. Unfortunately it doesn’t contain much in the way of details. I rightfully assumed there must be body cam footage. That has now been confirmed by the U.S. Attorney for the Northern District of West Virginia, who gave a media interview explaining that there was indeed body cam footage of this incident, and that it was key to their decision to indict the defendant officer. He gave some additional details that weren’t in the indictment:
“Once we saw the evidence and interviewed the witnesses we knew this case had to be charged.”
He also noted that the Monongalia County Prosecutor’s Office decided not to pursue state charges.
So, that means the body cam footage must be good – or rather, bad. In fact, he said, “The video really speaks for itself, there’s a lot of it and that’s why body cams are so important…” And if that’s the case, why did the state-level county prosecutor not file charges? That’s a rhetorical question, of course. As you’ll see, the county is now attempting to stop me from sharing this body cam footage with the public. They can give it to the feds, but not the citizens they represent.
As soon as I heard about the initial indictment, and saw the DOJ press release, I sent a FOIA request to the sheriff’s department. As of this morning, they responded, denying my request on the grounds that there’s a federal prosecution taking place. The problem is however, I didn’t FOIA the feds, but rather the county, who has decided not to prosecute. There’s an exception in our state FOIA statute where there’s still an open criminal investigation. But they don’t have one.
What’s happening here is that the county – Monongalia County Sheriff’s Office – is attempting to prevent the public from seeing the video, even though the U.S. Attorney prosecuting the federal indictment just discussed it on the radio. Here’s more of what he said:
Deputy Kuretza and six others responded to a disturbance at the Residence Inn Jan. 20, 2018. An investigation at the scene determined none of the suspects broke laws or would be arrested, but management asked they be escorted from the property.
As the group exited the floor, Kuretza ordered one of the guests to open the door to a nearby room where he found a man sleeping. Kuretza then allegedly began to shake the man and hit his feet to wake him up. When the guest explained he was sleeping, Kuretza threw him off the bed and beat him, investigators said. As the contact escalated, Kuretza restrained the guest as the six other officers were in the room.
“This particular victim had a flashlight in his face and thought it was his friends just messing around with him,” Ihlenfeld said. “It turned out it was a sheriff’s deputy and from there it really got out of control.”
Kuretza battered and used pepper spray on the victim while handcuffed. While the suspect was being taken out of the property Kuretza allegedly continued to use unnecessary force.
“The report that was filed after this did not indicate the pepper spray had been deployed after handcuffs were used, in fact it said pepper spray was deployed before handcuffs were used – which was not consistent with the video evidence we have.”
So I already responded to their denial of my FOIA request and am threatening to sue them for illegally denying my request. The public has a right to see this footage. The sheriff’s department can’t just suppress footage owned by the public. I will get the footage, and now I really want to see it. I pulled the actual indictment and I’ll post it up on the blog if you want to see it. Here’s what it charges:
The indictment contains two counts. The first is deprivation of rights under color of law. This alleges that Lance Kuretza, a Deputy Sheriff with the Monongalia County Sheriff’s Office, while acting under color of law, deprived the victim of his Fourth Amendment rights by engaging in an unreasonable, i.e., excessive, i.e., unnecessary and unjustified, use of force. Specifically, he punched the victim in the face, striking him, spraying him with pepper spray at a time after the victim had been handcuffed. It’s also alleged that he kneed the victim while escorting him. The indictment specifically alleges that this offense included the use of a dangerous weapon and resulted in bodily injury to the victim. Why was that last part alleged? As we’ve discussed before in these glorious cases, where those elements are present, the charge of deprivations under color of law transforms from a misdemeanor to a felony.
Count two alleges that, the following day, on January 21, 2018, Deputy Kuretza knowingly falsified and made a false entry in a record and document with the intent to impede, obstruct, and influence an investigation into his actions. Specifically, it alleges that Kuretza made false entries into a use of force report by falsely stating that he sprayed the victim with pepper spray before the victim was handcuffed, as well as by omitting that he sprayed the victim with pepper spray after the victim was handcuffed, and also omitting that he struck the victim after he was handcuffed.
If convicted, Kuretza faces up to 10 years in prison for the civil rights violation and up to 20 years in prison for falsifying the report.
There’s quite a bit of case law placing police officers on notice that it’s unreasonable excessive force to use tasers and pepper spray on handcuffed arrestees. The Fourth Amendment bars police officers from using excessive force to effectuate a seizure. Courts evaluate a claim of excessive force based on an “objective reasonableness” standard, taking into account “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. These are known as the Graham Factors. The Courts also look at the circumstances as of the moment force was deployed, with an eye toward the proportionality of the force in light of all the circumstances.
There’s already binding legal precedent in the Fourth Circuit, which is where West Virginia is located, that pepper spraying suspects in response to minimal, non-violent resistance is a Fourth Amendment violation. SeePark v. Shiflett (4th Circ. 2001). There’s quite a bit of case law denying correctional officers qualified immunity for using pepper spray unnecessarily, for the purpose of causing pain, or for retaliation, as well as for using it excessively.
There’s a big difference between pepper spraying an arrestee who is handcuffed and one who is not handcuffed. There’s also a difference between the use of pepper spray in a jail or prison context, and use against non-incarcerated individuals, where it’s much more likely to be considered excessive force by the Courts. Unfortunately, I can’t show you the body cam footage. But we now have confirmation that it exists. I may have to sue for it. But I’ll get it one way or the other. I’ll post the documents I have so far up on the blog at thecivilrightslawyer.com. I look forward to following this one and seeing what happens.
