Tag Archives: deliberate indifference

Cops Hogtie Innocent Man | Can the Police Hogtie Arrestees?

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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.

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

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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:

Abandoned on Train Tracks by Police | Qualified Immunity? | State-Created Danger Theory

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By now we’ve all seen the footage of the train in Colorado hitting the police car stopped on the tracks, severely injuring a woman in police custody who was placed handcuffed in the rear of the police cruiser. My immediate thought was qualified immunity. There can be no doubt that the police officer was directly at fault in causing the severe injuries to the woman in his custody. No doubt about it. But unlike a doctor who negligently injures someone, a police officer get to assert qualified immunity. 

Here’s the 8 minute clip showing the train hit the cruiser:

Qualified immunity is unfair and needs to be abolished. A lawyer representing this woman, if a lawsuit is filed, is going to have the legal requirement to point to some past clearly established case law describing the officer’s conduct as a civil rights violation. Well, how many cases have there been in any particular jurisdiction where police officers let people in their custody get hit by trains? Moreover, as I’ve explained before, to establish section 1983 liability, you have to allege intentional conduct – not negligence or incompetence. Some intentional or purposeful conduct. For this reason, when one police officer accidentally shoots their partner, there’s generally no liability. I did a video on that one already. 

I took a quick look at the case law in the jurisdiction where this train incident happened, which is Colorado, which is in the Tenth Circuit Court of Appeals. So that’s where you want to look first for federal civil rights case law. I have a theory of liability here. First, take a look at some of the new footage released, from another angle.

There’s a legal doctrine under section 1983 called the state-created danger theory. Basically, it allows a pathway for a plaintiff to establish section 1983 liability for a civil rights violation where the government may not have directly or intentionally caused the injury to the plaintiff, but created the possibility or likelihood that it would occur. This theory has been adopted in the 10th Circuit. Here’s what a plaintiff would have to prove: 

  1. the charged state … actor[ ] created the danger or increased plaintiff’s vulnerability to the danger in some way; 
  2. plaintiff was a member of a limited and specifically definable group; 
  3. defendant[‘s] conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; 
  4. the risk was obvious or known; 
  5. defendants acted recklessly in conscious disregard of that risk; and 
  6. such conduct, when viewed in total, is conscience shocking.

Estate of Reat v. Rodriguez, 824 F.3d 960 (10th Cir. 2016)

But to defeat qualified immunity, you still have to point to a prior case with a similar fact pattern. Again, a non-exhaustive review of 10th Circuit case law shows that the state-created danger doctrine has been applied: 

Off-duty police officer on personal business who crashed his police vehicle;

On-duty police officer who engaged in a high-speed chase;

Firefighter who crashed his truck into a car;

Police officer who caused the death of a bystander by instructing him to help physically subdue a suspect, who then shot the civilian; 

Social worker who removed a child from his mother’s home and placed him with his father, who killed him;

School official who suspended and sent home a special education student who subsequently killed himself;

State mental health administrators who eliminated a special unit for the criminally insane, causing the transfer of a murderer to the general hospital, where he killed his therapist. 

The common theme for liability in the 10th Circuit under the state-created danger theory is that the victims were unable to care for themselves or had limitations imposed on their freedom by state actors. This is very much like the deliberate indifference standard imposed on correctional officers entrusted with the care of inmates. The arrestee is unable to act herself. She can’t get out of the way of the train. Likewise, if a prison catches fire, inmates locked in their cells can’t get out on their own. 

I can think of a few other arguments and theories for liability. But this is an often-overlooked one, and popped into my head first. It seems to match our facts here. Watching the footage establishes, without much potential for dispute, that the arresting officer created the danger; that he rendered the victim incapable of helping herself; that he put her into harm’s way, and that the risk was obvious. You can see the fact that he had parked on the train tracks. No doubt the evidence would show that he was aware of the fact that these tracks were frequented by trains. You can actually hear the train coming in the body cam footage. 

If this woman is left with no justice due to qualified immunity, hopefully people will start paying attention. Qualified immunity serves no legitimate purpose. It’s the very definition of judicial activism. I’ll be watching this one to see what happens.