Family Court Judge Search Case Now at the Fourth Circuit

Imagine you’re sitting in family court and the judge looks at you and says, what’s your address? I’ll meet you there in 10 minutes, and I’m going to search your house with your ex-wife and my bailiff – a police officer who will arrest you if you don’t let me in. March 4, 2020, that’s what happened to my client. Here’s an update on the current status.

We won on the issue of judicial immunity. Just before the jury trial was set to begin, the defendant judge appealed the case to the Fourth Circuit. Since this matter involves judicial immunity, it’s capable of being appealed prior to trial. Usually a defendant is required to wait until afterwards.

They just filed their brief a couple of days ago. Next it’s our turn to file a response brief, which is due mid-November.

Here’s the federal court opinion denying judicial immunity:

Officer Meltdown During Open Carry I.D. Refusal in WV | What Happened in Court

On February 21, 2018, Putnam County Sheriff’s Office Deputy B.E. Donahoe responded to a complaint relayed from the emergency dispatch center that someone had reported that there was an individual walking down the side of a public road while in possession of a firearm.  The individual was the plaintiff, Michael Walker, who being a victim of epileptic seizures, does not have a driver’s license.  He was headed coyote hunting, and had a rifle strapped over his back, along with a backpack.  Deputy Donahoe brutally insulted Mr. Walker, who was being polite, but insisting that he had committed no crime, and therefore should not be stopped and forced to hand over his ID. Donahoe repeatedly called him a “c_cksucker” while forcibly detaining him and running a criminal background check on him and questioning him as to why he would need an AR-15. The incident was fully captured on video by Mr. Walker.

At the time Deputy Donahoe responded to the scene, he possessed no prior knowledge of Mr. Walker.  All he knew about Mr. Walker is what he observed when he arrived at the scene, which was observing him walking down the side of the road.  He didn’t recall who had called 911, or specifically what the complainant had stated, other than that there was a guy walking down the side of the road with a firearm. Upon arriving at the scene, he observed Mr. Walker walking down the side of the road with a rifle “strapped across his back,” with the muzzle of the gun pointed towards the sky.

Upon arriving at the scene, Mr. Donahoe did not observe Walker committing any criminal activity. Nor was he informed by any other source that any crime had been committed by any individual. Walker was just walking. Donahoe had no indication that Mr. Walker was a person prohibited from possessing a firearm. Donahoe testified that he did not observe Mr. Walker doing anything unsafe with the rifle strapped on his back; nor did he observe the rifle in Mr. Walker’s hands; nor did he observe Mr. Walker acting threatening in any way.  His only reason for stopping Mr. Walker was to find out if he was a prohibited person.

As portrayed by video footage taken by Mr. Walker with his phone, the interaction was not consensual. Donahoe gave Mr. Walker “no choice” in the matter. He told him during the stop that he was not free to leave until he was done with his investigation. Donahoe explained that the only investigation he was undertaking at the time, to which Mr. Walker was forced to submit, was to run Mr. Walker’s criminal history report, in order to determine whether he “was a person that could possess a firearm.” Admittedly, he had no information indicating that Mr. Walker may have been a prohibited person.

The case is over. We lost. Compare the video footage of the encounter with the legal aftermath, from the trial court level, through appeal to the Fourth Circuit, oral arguments, and ending with a deeply flawed published Fourth Circuit opinion. This case demonstrates what I refer to as a Bermuda Triangle of civil rights law….

Here we are following the hearing at the U.S. District Court in Huntington, West Virginia.

The U.S. District Court granted summary judgment for the officer, dismissing the lawsuit filed by Michael Walker. The order essentially created a carve-out for AR-15 style rifles from the usual reasonable suspicion analysis:

Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.

Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.

The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearmSee Embody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).

The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. See Deffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).

Together, these facts would form a particularized and objective basis for an investigatory stop.

Here is the full District Court Order that was appealed to the Fourth Circuit:

This was our opening brief to the Fourth Circuit:

Listen to oral arguments from this case at the Fourth Circuit:

Here’s me actually arguing to the Fourth Circuit panel, via my computer, in the bizarro world that was 2021 America:

Here’s the Fourth Circuit Opinion that ensued:

Here is our petition for rehearing en banc, which was denied:

Cops Caught Covering or Disabling Surveillance Cameras | Is that Legal?

Two days ago, I took the deposition of two police officers in a civil federal rights lawsuit (section 1983 case) involving an allegation that my client’s exterior home surveillance camera was disabled by the officers. They both pled the Fifth Amendment. Here’s a photo of the actual disabled camera:

This is from the “Creepy Cops Search Case,” which if you’ve been following my work, you’re well-aware-of. But what about situations where they don’t destroy anything, but just cover or move the camera?

I came across some recent unrelated footage of police officers covering, concealing, or otherwise redirecting, a home’s surveillance cameras. When this hit the interwebs, it of course immediately sparked discussion. Police officers defended the footage, claiming officer safety reasons to do this, with some claiming that they always do this as a matter of policy. Is this legal? Is this a Fourth Amendment violation? Is it a First Amendment violation? Is this a crime?

There are a few issues with this. Are we talking about doing this pursuant to the execution of a search warrant for the subject residence. And if so, does the search warrant specifically authorize the seizure of surveillance cameras themselves, rather than the footage?

BREAKING: WV Parole Officer Abuse and Coverup Exposed | Lawsuit & Indictment

Today we filed a lawsuit against multiple West Virginia parole officers for a pattern and practice of sexual abuse of female parolees in the Parkersburg, West Virginia area. Imagine being a woman in the parole system, where your male parole officer, who has the ability to search your house, arrest you, or send you to prison at any time, begins to demand sexual favors. That’s what’s been happening in West Virginia. Imagine also that you report this to your parole officer’s supervisor and he intimidates you into silence and allows it to continue. Imagine even the FBI comes in and has to tell a Parole Officer to back off, that he’s under surveillance, and meanwhile, the guy’s still employed as a Parole Officer, as if it’s just par for the course. 

My client, identified in the lawsuit by her initials, tragically, was already victimized in the West Virginia correctional system. She was therefore vulnerable to these predators. When her parole officer began to engage in misconduct, she bravely recorded him. Six recordings she created. She took those recordings to the supervising Parole Officer in the region, David Jones. Instead of protecting her and other female parolees from the predator, he ordered her to destroy the evidence, telling her that the predator, Anthony DeMetro, was his friend. He told her to just stick it out until she was off parole. Meanwhile, other women were victimized, and my client was forced to live in fear and humiliation. 

According to the other lawsuit that was filed, which I’ve also posted, other female victims were coming forward to state parole officials, only to be ignored – which is absolutely unacceptable. Thankfully, the FBI was listening and began an investigation. Now the feds have indicted Anthony DeMetro. His indictment is posted in full below. They also filed a criminal information charge against DeMetro’s supervisor, David Jones. I’ve posted that as well. 

Here’s the complaint:

Indictment of Anthony DeMetro:

Information charging David Jones:

Cops Tase and Arrest Guy Sleeping in his Truck in a Home Depot Parking Lot

Police officers have a hard time understanding that reasonable suspicion to justify detaining a citizen is supposed to be based on suspicion of a crime, rather than a hunch or ego of the officer. How many police videos we see were completely unnecessary and achieved nothing, other than bad publicity, lawsuits and constitutional violations? 

Devin Thomas was asleep in his truck on Christmas night in a Home Depot parking lot in Delaware. He was waiting for the store to open because he needed to buy products they sell for his business. He was traveling for work, which takes place on the highways, hence the fact that he was sleeping in his truck. He awoke to a flashlight in his face and somebody trying to talk to him. 

A law enforcement officer may detain an individual for investigation when the officer has a reasonable suspicion, supported by articulable facts, that criminal activity is afoot. Courts, in this case the Third Circuit, consider the totality of the circumstances in determining whether the facts known to the officer amount to an objective and particularized basis for reasonably suspecting criminal activity. An officer is entitled to draw specific reasonable inferences from the facts in light of his experience.

Courts have ruled that the government “must do more than simply label a behavior as ‘suspicious’ to make it so.” Police officers must “be able to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.”

“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” However, the Supreme Court has noted “the fact that the stop occurred in a `high crime area’ [is] among the relevant contextual considerations in a Terry analysis.”

Courts in the Third Circuit have allowed officers to consider proximity to locations where crimes are known to have occurred as one factor in the development of reasonable suspicion. What crime was suspected here of Mr. Thomas having committed? I reviewed the state trespassing laws in Delaware. I see no basis for any objectively reasonable belief any of those even theoretically could have been violated here. 

It doesn’t appear that there could have been any reasonable suspicion that the crime of trespassing has been committed. Delaware doesn’t appear to have any automatic liability trespassing statute wherein you’re committing the crime of trespassing just by virtue of driving in, or parking in, the parking lot of a closed business. It doesn’t appear that there’s any evidence that Home Depot complained about this individual in particular, or about people driving in, or parking in, their parking lots after hours, or before hours. There appears to have been no allegation that there was any burglary that occurred at this location, but rather alleged knowledge of past issues. Certainly nothing particular to this individual. Moreover, no information is given that the behavior of parking in a parking lot, or the appearance of this individual, or this vehicle, justified suspicion of burglary. To the contrary, it appears to be a work truck in the parking lot of a work supply business. 

Trooper White wrote in his police report, that he was on “proactive patrol” and just happened to be passing by Home Depot when he observed a white truck with its lights on parked next to two Home Depot rental vehicles. He further wrote that “Home Depot recently advised” them that “they were having issues with their alarm system and requested additional patrols in the area for suspicious activity.” He wrote that it was 2:30 in the morning, and the store didn’t open until 7:00 a.m.

However, he mentioned no actual report of any criminal activity, much less criminal activity pertaining specifically to Mr. Thomas. At least not prior to the seizure of Mr. Thomas. It was a white truck in a construction material store parking lot. There was no indication that the vehicle had entered a closed-off area, through a gate, or past no trespassing signs. It was a public place parking lot. I see nothing in the Delaware trespassing laws criminalizing the behavior whatsoever. All we have here is an officer with a hunch and an ego. 

After we get past the reasonable suspicion issue, we have the fact that Mr. Thomas was tased here. The alleged justification for that, according to the officer who fired the taser was that Mr. Thomas was allegedly grabbing and pushing Trooper White’s arm as White attempted to forcibly unlock the driver’s side door. 

However, Trooper White can be heard on the dash cam footage saying to the tasing officer, “I didn’t mean for you to have to tase him.” Apparently that trooper tased Mr. Thomas because Trooper White told him to tase him. At least he did, but didn’t really mean it. At one point in their reports they mentioned that they used “de minimis” force in extracting Mr. Thomas from his vehicle. That’s literally not true. Tasing is actually a high level of force that’s not supposed to be used where unnecessary. I believe there’s a good case to be made here that, even if reasonable suspicion existed to extract Mr. Thomas from the vehicle, that the level of force was unreasonable. 

He was only suspected of having committed trespassing, at best. He wasn’t actually a threat to them in any way. He was just standing on his rights. He was surrounded by police officers. He wasn’t going anywhere. They had no indication of any immediate safety threat to any individual. Except to Mr. Thomas, of course. 

Psycho K9 Officer Caught on Dash Cam

New footage showing dash cam video of the Berkeley County Sheriff’s Department using a K9 to make an arrest. Here’s the footage:

When a K9 is deployed on a citizen, that individual is “seized” for Fourth Amendment purposes. Assuming the seizure itself was lawful, the issue is whether the seizure may be “unreasonable” due to being an excessive level of force. The deployment itself of a police K9 during the course of a seizure may be unreasonable, depending on the circumstances.

Courts look to the Graham Factors: the severity of the crime at issue, whether the suspect is actively resisting or evading, and most importantly, whether the suspect poses an immediate safety threat to the officer, or others. 

The Fourth Circuit held, as early as 1995, that the improper deployment of a police dog that mauls a suspect constitutes excessive force in violation of the Fourth Amendment. Specifically, deploying a dog against a suspected bank robber in a narrow alleyway without warning and a fair opportunity to surrender was unreasonable and excessive. Furthermore, doing so where the suspect was surrounded by police officers is itself unreasonable and excessive, even where a warning is given. (Kopf v. Wing (4th Cir. 1991).The Fourth Circuit has also held that sending a police dog into a home that contained a burglary suspect, without warning, resulting in severe injuries to the homeowner, was an excessive force violation. Vathekan v. Prince George’s County (4th Cir. 1998).

Repeatedly over the years, the Court has held generally that the use of serious or violent force, i.e., disproportionate force) in arresting or seizing an individual that has surrendered, or who is not actively resisting or attempting to flee, and who does not present a danger to others, is an unreasonable excessive force violation. 

The 7th Circuit has denied qualified immunity to a police officer where he failed to call off a police dog that was mauling a “non-resisting (or at least passively resisting) suspect.” Becker v. Elfreich (7th Cir. 2016). That Court also denied qualified immunity to an officer who commanded a dog to attack a suspect who was already complying with orders, and where there were multiple backup officers present. Alicea v. Thomas (7th Cir. 2016).

The Fourth Circuit cited that last case in 2017 as providing “fair warning” to police officers that they will lose qualified immunity where an officer deploys a police dog against a suspect was was “not in active flight at the time he was discovered,” but was “standing still, arms raised….” Booker v. S.C. Dep’t of Corr. (4th Cir. 2017). The Court also cited a 6th Circuit case where officers deployed a police dog to apprehend a suspect that had given police no indication that he presented a danger to others, and was not actively resisting but “lying face down with his arms at his side.” Campbell v. City of Springboro (6th Cir. 2012).

The Fourth Circuit has also cited an 11th Circuit case denying qualified immunity where the officer ordered his K9 to attack a suspect that had previously surrendered and complied with the officer’s order to lie on the ground. Priester v. City of Riviera (11th Cir. 2000).

Generally speaking: Where K9s are deployed, a warning should be given, along with an opportunity to surrender, where possible. Deploying K9s on suspects who have been already subdued, surrounded, or who are not actively resisting or evading arrest, is also likely excessive force, with or without a warning. Deploying K9s on suspects who pose no immediate threat is generally going to be unreasonable. K9s should only be deployed where there exists a serious immediate safety threat in a tense, fast-moving situation, where there’s some actual reason for doing so. 

Raw version of body cam:

“Creepy Search Cops” Ask Federal Court to Restrict My YouTube Channel

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:

Here are their attached exhibits:

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. 

“White Male or Black Male?” | Cops Assume Citizens on Porch Are Criminals – Part 2 Body Cam

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.

Parents Call For Ambulance But Cops Show up With Taser Instead

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.

Facebook version:

https://fb.watch/fsrrv7KhWw/

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. 

The International Association of Chiefs of Police puts out a model taser policy, which provides the following guidance to law enforcement agencies around the country, about taser usage on suspects:

Should be used:

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.