Update: Court Rules on Video Depositions and Youtube

This is a case where plain-clothed police officers snuck into my client’s house through a window, searched his house without a warrant or other legal justification, found nothing and left. But they got caught on hidden surveillance cameras. 

Long story short, there was no justification for their actions. No search warrant, no exigent circumstances and certainly no consent. Those are the only three justifications under the Fourth Amendment. As it turned out, the only purported reason they were there was to serve a civil summons, as the landlord had begun eviction proceedings due to late rent payments. That provided no justification to enter or search the home. The matter had not gone to court yet. There was no eviction order. The officers were investigated and disciplined. The only excuse given was that they didn’t read the paperwork, and thought there was an eviction order, and figured that since they’re a drug task force, they’d search for drugs while they were at it. We filed a federal Section 1983 suit for Fourth Amendment violations and are currently set for trial early next year.

The last update was about the video depositions in the case. I took the video depositions of the officers from the video. They all pled the Fifth Amendment. Supposedly the FBI is investigating them. It’s pretty clear now after having exchanged discovery and taken almost all the depositions, that this is the story of a drug task force unit designed to use so-called “knock and talk” investigations in lieu of the more-conventional and old-fashioned search warrant procedures.

The video depositions were pretty dramatic. The lawyers for the officers filed a motion for a protective order with the federal court, asking the Court to prohibit me from uploading the video deposition footage to Youtube. They claimed that exposing the sworn testimony of the police officers to the public endangered officer safety and prejudiced the in the eyes of potential future jurors. 

A few days ago, the Court ruled, granting them a protective order during the pendency of the case. Then, when the case is over, I have to request the Court to vacate the protective order. But as the Court noted, a few things could happen in the meantime that could moot the issue, such as a settlement agreement, or the video depositions becoming public record, which they ultimately will in the very near future. Here’s the order:

The Court stated: 

“[T]he Court currently is not in a position to determine whether the protective order should terminate upon adjudication of the case, as that determination depends upon factors not yet known. The issue may become moot, as it is possible that the parties will agree not to publish the videotaped depositions as part of a compromise and settlement. The depositions may also become part of the public record, creating a presumption of public access which would significantly alter the Court’s analysis of the protective order .”

The Court further held that the protective order was not an unconstitutional prior restraint on free speech. The Court noted that: 

“The Supreme Court explicitly stated that a protective order supported by good cause and limited to pretrial civil discovery, without restricting dissemination of information found in other sources, does not offend the First Amendment.”

The Court also denied the defendants’ request for attorney fees, finding that my actions were “substantially justified.” 

As I warned them from the very beginning, trying to suppress this is only going to draw more attention to it. Even if I personally am restricting from uploading the footage to my Youtube channel, what about third parties? Restricting me from using the footage is only going to cause third parties to obtain everything that becomes public record and use it. The coverup is always worse than the original crime. The coverup itself becomes the story. 

Pregnant Teacher Stopped and Arrested | Officer Disciplined

From the Fort Worth Report:

Vilmaris Montalvo was on a tight deadline July 30, 2021. A pregnant, Hispanic dual language teacher in Arlington, she took her lunch break to pick up her husband from a Fort Worth hospital following surgery.

After noticing a Fort Worth patrol car following her for several miles, Montalvo pulled over.

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:

Cops Hogtie Innocent Man | Can the Police Hogtie Arrestees?

October 9, 2020, Sterling Police Officer Paul McDaniel pulled Christian Weitzel from his apartment and threw him to the ground. With the assistance of Sterling Police Officer Matt Williams and Logan County Sheriff’s Deputy Alton McGuffin, the three officers hogtied Mr. Weitzel with his wrists handcuffed behind his back, his ankles strapped together, and his ankles and wrists tied together behind his back. They drug him to a police cruiser, threw him into the rear seat, and left him in that position until he was finally released at the jail.

There was a verbal argument between Mr. Weitzel and his wife, Brittany Weitzel. Mr. Weitzel was not arrested or charged with any criminal offenses related to a domestic dispute. The officers were called to the scene following a call from a neighbor of a possible domestic dispute due to hearing loud voices. After the officers arrived at the apartment, they could not hear anyone yelling inside the apartment. They did not observer any altercation taking place, or any crimes being committed. 

Officer McDaniel asked Brittany what was going on and she stated, “just an argument.” She did not appear to have any injuries. She did not request assistance from the officers. She had not called them to the scene. Mr. Weitzel then walked up to the doorway from inside the apartment. He did not step outside the threshold of the apartment door. He asked Officer McDaniel, “what’s up man,” in a calm nonthreatening, and nonaggressive manner. 

Officer McDaniel asked Mr. Weitzel to “come here and talk to me man.” Mr. Weitzel, in a calm, nonthreatening and nonaggressive manner, stated, “I’m cool,” indicating that he wanted to stay inside the doorway of his apartment. He made no sudden moves. He did not threaten the officers in any way. Mr. Weitzel did not appear to be armed. Nor did the officers have any information or indication that Mr. Weitzel was armed. Mr. Weitzel was ultimately hogtied for approximately 16 minutes. Mr. Weitzel was charged with disorderly conduct, resisting arrest, and obstructing. All the charges were subsequently dismissed by Logan County Court Judge Ray Ann Brammer. 

A lawsuit was filed just a few days ago in state court in Colorado over these allegations. I’ll post it up to the blog, link in the description. As for the facts, based on the body cam footage and the facts presented in media reports and the civil lawsuit, constitutional rights were violated. Why?Although the officers were called to the scene of a reported domestic dispute, they ended up acting on a very small amount of information that, even if true, does not justify an arrest of the homeowner, much less a use of force. 

A neighbor called 911, reporting a suspected verbal argument. There was apparently no allegation of a crime being committed, or that anyone’s physical safety was in jeopardy. When officers arrived at the scene, they saw no crime being committed. They located and observed both spouses at the residence. Neither appeared to be in distress, or requested their assistance. Without Mrs. Weitzel requesting their assistance, under these circumstances, the officers had no justification for pulling Mr. Weitzel out of his house. That’s a Fourth Amendment violation right there. But even assuming they acted properly up to that point, then we have the arrestee being hogtied on the ground. 

Colorado is the 10th federal circuit. A quick search of the case law shows that police officers hogtying anyone is a terrible idea under almost any fact pattern. It could theoretically be reasonable under some circumstances, but I really don’t know what that would be. It certainly would not be reasonable under this fact pattern, where the arrestee had not committed any crime at all, much less a severe one. Watching the body cam footage shows that the arrestee is not attempting to harm the officers. He poses no threat to them. 

Rather, it appears that the officers hogtied the man in retaliation for not immediately respecting their authority by stepping out of his house when they asked him to do so – despite having no legal justification for the demand. This appears to be one of those common situations where police are going to teach a lesson about respecting the police. It’s clearly not about the safety of anyone on the scene, including the arrestee. 

There’s a 10th Circuit case, Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), that discusses hogtying, making it clear that the courts consider it akin to the use of deadly force, as it poses a high danger of positional asphyxiation. I’ll put all the legal citations in the blog post on this, which you find in the description. The Weigel case also cites another 10th Circuit case, Cruz v. City of Laramie, 239 F.3d 1183, 1188-89 (10th Cir. 2001), which is relevant here. 

In Cruz, Wyoming police officers responded to a complaint of a naked man running on the exterior landing of an apartment building. When the officers arrived, Mr. Cruz, the man on the landing, was jumping up and down and kicking his legs in the air. When he descended from the landing, the officers wrestled him to the ground and handcuffed him. They hogtied him. Shortly thereafter, Mr. Cruz’s face blanched. He was rushed to the hospital, where he was pronounced dead on arrival. Expert reports indicated that Mr. Cruz’s death resulted from positional asphyxiation. Citing Cruz, the 2008 Weigel opinion denied those officers qualified immunity for similar conduct, issuing a clear warning to law enforcement to think twice about hogtying arrestees. As a result of this, the Wyoming State Police, as I understand it, prohibited the practice. Back in the 90’s, the DOJ also warned against the cruel practice.

There are a lot of other hogtying cases out there. But I gave you the 10th Circuit law, as that is applicable for this particular jurisdiction. 

Full raw footage here.

Cops Caught Snooping in Backyard Looking for AirPods | Is That Legal?

It’s August 19, 2022. Imagine a woman is at home, in a quiet neighborhood in Bay County, Florida. Unbeknownst to her, someone’s air pods went missing. For some reason – and I’ve been seeing a lot of this lately – the cops believe they could be located in her home. That’s probably because a stranger shows up first, claiming his missing air pods were pinging from inside the house. The woman doesn’t answer the door, because he’s a stranger. A little while later, the cops show up with no warrant, and do what creepy cops do, which is search without a warrant. They go into the woman’s backyard. One stands outside the bedroom window of her 15 year old son, like some sort of law enforcement pepping tom. 

There was apparently no warrant here. But the cops didn’t go inside the home. Does that matter? For the too-long-won’t-watch types, I’ll save you some time and let you get back to your funny animal videos. Cops need a warrant, even in your backyard, with only a couple limited exceptions – none of which appear applicable here. You’re free to go. For the rest of you, let me explain.

According to the 1984 Supreme Court opinion in Oliver v. United States, the heightened Fourth Amendment protections of the home extend beyond just the interior of the home itself into what’s called the “curtilage” of the home, which is the land immediately surrounding and associated with the home. Why? Because according to the Supreme Court, the curtilage is considered part of the home itself for Fourth Amendment purposes. 

In the 2013 Supreme Court opinion of Florida v. Jardines, the Court held that a search undoubtedly occurs when the government, without a warrant, obtains information by physically intruding within the curtilage of a house, which in that actual case involved a home’s front porch. The Court cautioned that a search occurs unless a homeowner has explicitly or implicitly sanctioned the government’s physical intrusion into the constitutionally protected area, i.e., the yard and/or porch of the home.

Under the “knock and talk” exception to the warrant requirement, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.”

This means there is an “implicit license . . . to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” An officer may also bypass the front door (or another entry point usually used by visitors) when circumstances reasonably indicate that the officer might find the homeowner elsewhere on the property. “Critically, however, the right to knock and talk does not entail a right to conduct a general investigation of the home’s curtilage.”

The 11th Circuit, which applies to Florida specifically, warned police officers in the case of U.S. v. Maxi in 2018 that their right to go up to a citizen’s front door on a knock and talk, does not include inviting armed me into the homeowner’s yard to “launch a raid” or “conduct a search.”

The only possible justification for this behavior would be circumstances of “hot pursuit.”  Under the hot pursuit doctrine, police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. A “hot pursuit means some sort of chase. The Supreme Court has indicated that a claim of hot pursuit is “unconvincing” where there was “no immediate and continuous pursuit of the petitioner from the scene of a crime. See United States v. Fuller (11th Cir. 2014).

That clearly does not appear to be the case here. Even assuming airpods actually went missing, and even assuming someone claims that they pinged to this location; and even assuming they did in fact ping to this location, that doesn’t change the legal analysis. When it comes to a home, which includes the curtilage around the home, a warrant is required. Or consent. Or exigent circumstances, which in the case would have to be a subcategory of exigent circumstances – hot pursuit. That in turn requires probable cause that some crime was committed and that an individual they pursued into the house may have committed that crime. 

I see no indication of any pursuit or chase whatsoever – certainly not one that is also immediate and continuous, all the way from some crime scene. All they have as far as justification goes is their right to knock and talk. Cops have been abusing knock and talks for years. On a knock and talk, they are merely authorized to act as a little girl selling girl scout cookies would do. As I explained in a previous video about this, police have an implied license, just like anyone, to come knock on your door and talk to you. 

My prior video on what you need to know about “knock and talks” and related law:

But you can revoke that implied license by asking them to leave, or even putting up no trespassing signs, or “no cops allowed signs.” They won’t inform you that you don’t have to talk to them and can ask them to leave. But you can. But they won’t tell you – because they want you to think that you have no choice but to interact with them and answer their questions. Know your rights. Tell them to leave, and to go pound sand, if that’s what you want. 

Something I learned in my years of criminal defense practice. Generally speaking, the cops want to talk with you because they have no evidence against you. They are required by law to have evidence in order to get a search warrant, or an arrest warrant. They need you to provide that for them. Any time you’re tempted to provide this for them, think of a taxidermy fish on the wall, mounted with a plaque that reads, “if I had only kept my mouth shut.”

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?

Stopped For Flashing & Handcuffed For Laughing | Unreal WV Traffic Stop

Isn’t that weird that I just did a video on the issue of whether there’s a constitutionally protected right to flash your lights at oncoming traffic, in order to warn them of an approaching speed trap, and then what do you know, it ends up happening again right here in West Virginia. This brand new exclusive footage you’re about to see however, is the worst of those incidents I think you’ll ever see anywhere on Youtube. Frankly, I’m disgusted by the actions of this deputy with the Nicholas County, West Virginia Sheriff’s Department.

Here’s the citation William was given:

This was Corporal J.D. Ellison with the Nicholas County Sheriff’s Department. His behavior was disgraceful. But I’m also disappointed in the aftermath here. Corporal Ellison shamefully gave this man a ticket for two alleged violations – at least on paper – which were allegedly having an unsigned registration card, which is total garbage, as well as an alleged “special restrictions on lamps,” which was a frivolous charge meant to fabricate the nonexistent crime of warning fellow Americans about government waste, laziness and tyranny. 

Here’s the police report by Cpl. Ellison:

You’re really not going to believe this, but William went to court yesterday in the Magistrate Court of Nicholas County – that’s Summersville, West Virginia. He represented himself. He was being prosecuted by a prosecuting attorney from that county, with the matter presiding before Nicholas County Magistrate Michael Hanks. I’m really shocked to tell you that Magistrate Hanks convicted this man of the alleged crime of “Special Restrictions on Lamps.” He did dismiss the bogus charge of having an unsigned registration card because it’s thankfully not even on the books anymore – which by the way was the offense for which William was placed in handcuffs.

Between the prosecutor and the magistrate, which of those great legal minds thought it was a good idea to convict William of “special restriction on lamps?” Just looking at the statute, which is clearly not meant to apply to this situation, it makes an explicit exception, citing a different statute that allows for flashing lights for the purpose of warning the operators of other vehicles “of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking or passing…, etc.” 

Here’s the prior video I did on flashing lights to warn of a speed trap:

Stay tuned for updates. I’m going to help William….

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:

Day 2 of Depositions in the Creepy Cops Search Cases

Here’s a quick update on yesterday’s depositions in Creepy Cops Search cases:

Creepy Cops Search Footage: https://youtu.be/xkb7qXFh4qA

Day 1 Depositions: https://youtu.be/G1YZsyDuA14

Video about them flexing on my YT channel: https://youtu.be/4DoUCL-LIEg