In April we filed a federal civil rights lawsuit against Marshall County, as well as Deputy Jason Johnson for a vicious K9 attack against our client, Kandi Wood, that took place during her arrest for a probation violation. They filed a motion to dismiss all claims and asserted qualified immunity. The Court just ruled, depriving the deputy of qualified immunity and ordering the lawsuit forward, including the Monell (pattern/practice/policy) claim against the county for their K9 policy.
The Loveland Police Department has released bodycam footage for an incident in which former 28-year-old officer Russell Maranto hit a suspect who was in protective custody in May of this year. The rookie cop was fired three days later. Does it violate an arrestee/detainee’s constitutional rights to be hit by a police officer while handcuffed? What about if the person spits on the officer?
Indianapolis police officer Eric Huxley was filmed headstomping a handcuffed man. After the video surfaced, he ended up being the one arrested. Now he has been found guilty in federal court of violating the man’s civil rights.
To determine whether a police officer applied excessive force in violation of the Fourth Amendment, we instead examine officers’ actions “in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Specifically, we examine “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.” Id. at 396, 109 S.Ct. 1865.
A college student is walking down the sidewalk. Suddenly he is grabbed by multiple police officers wearing plain clothes. He has no idea they’re police officers. He thinks he’s getting mugged. Bystanders think he’s getting mugged. They call 911. It looks like a mugging. They take his wallet. They beat him. But they were cops. Not just any cops. They were federalized into a task force. You are an innocent victim. Can you sue them?
Qualified immunity is bad enough. But imagine an America where the federal government can deputize your local law enforcement and take them completely out of state and local control. Imagine they can violate your constitutional rights and there’s nothing you can do about it. Imagine they have more than just qualified immunity, but you basically can’t sue them at all. That’s what’s at issue in this important case, King v. Brownback, being appealed to the U.S. Supreme Court by the Institute for Justice – for a second time.
I recently had the opportunity to talk to Patrick Jaicomo, who has already argued this case once before the Supreme Court. He explains the backstory about what happened to James King, as well as the extraordinary lengths the government has gone to keep an innocent victim from ever seeing a jury over the violation of his constitutional rights.
This is an extremely important issue because we are seeing these federal task forces pop up all over the country. If the courts take the position that state and local officers are effectively federal officers, they basically can’t be sued. Courts will say, yeah he violated your constitutional rights, but there’s nothing you can do about it. So far, that’s what has happened to James King. He was completely innocent and local police officers beat the hell out of him. But he couldn’t sue them.
The Institute for Justice is asking the Supreme Court to fix this problem. Here’s some insight from one of the country’s top civil rights lawyers about this case and about what you can do to help. The King case is important because it’s undisputed that James was innocent; that his civil rights were violated. The only real issue is whether, as a citizen, there’s anything he can do about it. If a private citizen beat him, he could sue him and seek money damages before a jury. But here he can’t because he was beaten by his government.
If they were just regular state and local cops, it wouldn’t be a problem. He would beat qualified immunity. But here they have been hiding behind the protection of the federal government. Even though they were in fact state and local cops enforcing state and local laws. If this is allowed, I think we’ll see much more of this federal deputization, just to allow local police to violate the constitution without consequences. That can’t happen.
Can the police pepper spray a handcuffed man just because he’s running his mouth? Here’s some brand new exclusive footage from a federal civil rights lawsuit just filed by my friend, Kentucky civil rights attorney Chris Wiest. We had a great discussion about this footage, the lawsuit he just filed on behalf of this guy, as well as some general advice he has when potential clients are interacting with police officers.
There is a video showing a female cop suddenly pull her pistol and point it at a driver’s head during a routine traffic stop. Then there was a subsequent video providing commentary and advice about the situation. However, the information was incorrect. There’s unfortunately a lot of misinformation floating around about the rights of vehicle occupants during traffic stops. It’s important to know your actual rights and not misinformation that could really cause you some serious problems.
What are your basic constitutional rights at a traffic stop?
The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015).
Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop. The Supreme Court has provided a list of acceptable tasks that are connected generally to safety and driver responsibility:
Officers will usually question a driver about the traffic infraction; they will run the driver’s license plate; they will request and review the vehicle’s registration and insurance; they will check for outstanding warrants; and lastly they will write a ticket. Officers also commonly question drivers about their travel plans. So long as they do so during the time that they undertake the traffic-related tasks for the infraction that justifies the stop (Arizona v. Johnson), officers may also ask questions about whether the driver has drugs or weapons in the car, or even walk a drug-sniffing dog around the car (Illinois v. Caballes). These unrelated tasks turn a reasonable stop into an unreasonable seizure if it “prolongs” the stop. Officers may not avoid this rule by “slow walking” the traffic-related aspects of the stop to get more time to investigate other potential crimes.
Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes. See Hernandez v. Boles (6th Cir. 2020).
Additionally, “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). That rule, the justification for which is officer safety, extends to passengers, as well. Wilson, 519 U.S. at 414–15, 117 S.Ct. 882. (United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012)).
As for the 9th Circuit, where this encounter took place, “pointing guns at persons who are compliant and present no danger is a constitutional violation.” Thompson v. Rahr, 885 F.3d 582 (9th Cir. 2018) (citing Baird v. Renbarger , 576 F.3d 340, 346 (7th Cir. 2009)).
We do not discount the concern for officer safety when facing a potentially volatile situation. But where the officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force.
Earlier this year, deputies with the Warren County Sheriff’s Department in Virginia attempted a traffic stop on a 77 year old man named Ralph Ennis, who was apparently suffering from dementia. He didn’t stop, but instead drove to a gas station. An officer from a different agency, the Front Royal Police Department, captured what happened on his body cam.
The footage shows a deputy slamming the elderly man’s head against a truck while pinning his arms behind his back. A second deputy then tackles the man to the ground, hitting the man’s head on the concrete.
“Please let me up!” the man cried out, with two officers on top of him. “Let me go!” Just prior to all the violence, the video shows that all the man did was to get out of his car and walk towards the deputies with his keys in his hand.
The Front Royal officer was clearly shaken by what he saw and said so while his body cam was still recording, as he left the scene. USA Today reported on the aftermath. The elderly man was apparently then hospitalized with a brain bleed. He would never get out of the hospital. He died about two weeks later.
Let me repeat what I just said a few videos ago: there are two kinds of people in this world; those who support the “he deserved it defense,” and those who support the Constitution unconditionally. Those who are willing to allow police officers to bend the rules, so long as the victim deserved it, in their eyes, haven’t fully thought things through.
Case in point: Your usual Fourth Amendment Fudd, who is the same guy that thinks the Second Amendment protects his bolt action .30-06, but not your AR-15, is okay with the police beating someone unnecessarily who chose to lead the cops on a pursuit. The same Fourth Amendment Fudd who is okay allowing police officers the discretion to mete out their version of justice with no due process, however is NOT okay with the cops beating his elderly father with dementia who had no idea what was actually happening. If you allow one, then you have chosen to allow the other. By definition. You either protect all constitutional rights, or you protect none.
This is just one of many recent incidents involving police officers and elderly people with dementia. Police officers have been enabled to fly-off the handle at the slightest perceived threat to their authority. They have been enabled to fly-off the handle on the basis of perceived threats to officer safety. They have been authorized to act like robots; to attack at the slightest provocation, without compassion for those they’re entrusted to serve and protect.
The law assumes that police officers will make mistakes; that they will have bad information, or misunderstand the situation. The law judges them objectively – not based on what they actually thought or intended, but based on how a reasonable officer would act in the same circumstances.
And here’s the problem. Most of us would look at those circumstances, including good police officers, such as the guy wearing the body cam in this footage, and say, “hell no.” We are not robots. We are supposed to be able to adapt; to deal with different types of people in different scenarios. What would happen if a confused old man walked into a bank, holding his keys in his hand. Would he be immediately tackled and handcuffed by security? Or would any competent person recognize that they’re dealing with an elderly man who might be confused? Does it ever cross the mind of a reasonable police officer that a vehicle may not be stopping because it’s an elderly driver who is confused or suffering from dementia? I would argue that a reasonable officer should be concerned first with protecting and serving an elderly man.
As the U.S. population ages and more people develop dementia, older people are increasingly running into problems with the police. There’s no national count of how many people with dementia are arrested each year. But an analysis of U.S. crime data by The Marshall Project shows that the number of arrests of people over 65 grew by nearly 30% between 2000 and 2020 – at the same time that overall arrests fell by nearly 40%. The number of elder arrests is growing faster than the population is aging. National data from the Centers for Disease Control and Prevention also estimates that from 2010 to 2020, more than 12,000 people 65 and older ended up in a hospital emergency room for injuries caused by police or private security.
Unfortunately, police officers are not taught to think about the citizen. They are taught to only think about officer safety. It’s drilled into them. Citizen safety is last. That’s our problem. But “officer safety” is not mentioned anywhere in our Constitution. Where it exists is in police officer training. Instead, police officers should be trained in how to help people. They are the ones who wanted to be in a public service job. That’s what it’s about. It’s not about them being scared. If they’re scared, go find another job.
On October 9, 2022 around 2:30 a.m. Dalvin Gadson, a homeless veteran, living in his car temporarily, was stoped by officers with the Colorado Springs Police Department, Sand Creek Division, for not having a license plate on his vehicle. Dalvin was a former helicopter mechanic in the Army National Guard. He apparently had no prior criminal history.
He had been homeless for about 3 to 4 months, living in his car and delivering Door Dash to save enough money for an apartment. While sleeping in his car, a stranger named Carlos knocked on his car window, woke him up, and asked him to drive him to his job. He offered to pay him $20.00 for the ride. He needed the money, so he agreed. Then he was pulled over by the police. Remember as you watch this: the reasonable suspicion of criminal conduct forming the basis for the stop was a license plate violation.
This is how the traffic stop ended:
This is apparently the happy officer who beat him, showing off his injuries for the purpose of trumping up bogus criminal charges:
On February 23, 2022, a 12 year old autistic boy, reportedly ran away from home. Law enforcement was dispatched. That child encountered Deputy Matthew Honas, who handcuffed and hogtied the child, and then tased him without warning in the deputy’s police cruiser. This happened in Jackson County, Kansas. Although the officer was fired, the government is doing what government does: it’s hiding the video footage. Also, the government is protecting a bad cop, who is a threat to public safety. They fired him; then they let things settle down for awhile. Then, when it’s no longer in the news, the officer pops up somewhere else and continues working as a police officer.
There was no report of the child committing any crimes, other than running away from home, which perhaps is some of juvenile delinquency status offense under state law. There was a history between the child and the officer, however. Deputy Honas had previously encountered the child and was aware he was autistic. During the prior encounter there was also a physical struggle, according to a report disciplining the officer. But no details are provided.
Is there any video footage? How do we know what really happened? The Topeka Capital-Journal newspaper reported that Honas was not wearing a body cam, but that most of the interaction was captured by his in-car camera. The Capital-Journal attempted to obtain a copy of the footage via an open records request, but was denied under the open criminal investigation exception to disclosure under state law.
Honas was fired a little over a week after the incident. Termination of employment isn’t enough though. Why? Because bad cops just pop up somewhere else, usually in a small town that pays less. Then they get what they pay-for, which is a police officer who is already certified and experienced, but willing to work for less – because they’re damaged goods and a liability risk.
The Kansas Commission on Peace Officers’ Standards and Training, which oversees law enforcement certifications in Kansas, issued a disciplinary report that reprimanded Deputy Honas. The report concluded that Deputy Honas “used excessive force multiple times throughout his contact” with the child. He “shoved, elbowed, applied pressure points, carried, pulled, ‘hog tied,” and ultimately tased” the child.” During this time, the child was “sitting in the patrol car” and “not actively resisting.” His hands were cuffed behind his back. Deputy Honas began to press the child’s jaw pressure points without giving any direction to the child to do anything. This, the report concluded, “appeared to be of a punitive nature.”
But it gets worse. Deputy Honas refused and cancelled assistance from two other available officers. He chose not to use de-escalation techniques; he failed to use other options in restraining the child. He said that he was going to call a transport van, but did not. On several occasions, Deputy Honas applied pain compliance techniques without telling the child what he was supposed to do. He told the boy, “When the other guy gets here, you’re going to hurt more.” He also said, “here’s the deal, you do anything you’re not supposed to do I will tase you again.”
The report ultimately concluded that Deputy Honas engaged in “Unprofessional Conduct,” which at least in part, is defined as “using excessive physical force in carrying out a law enforcement objective.” The report, for purposes of law enforcement discipline in Kansas, then defines excessive force as “physical force . . . greater than what a reasonable and prudent officer would use under the circumstances.” Unfortunately, the report merely “reprimanded” Deputy Honas rather than revoke his certification to continue to work elsewhere in Kansas as a police officer.
Isn’t it crazy that I just did another hogtying video, where there was body cam footage, out of Colorado. In that video I discussed some rare hog-tying law that existed in the 10th Circuit. Well guess what. It can be confusing to understand which states are in which federal circuits. But guess which federal circuit Kansas is in? That’s right, 10th Circuit, just like Colorado. There’s a 2008 case, Weigel v. Broad, out of the 10th Circuit, that denied qualified immunity to police officers for hogtying arrestees. Basically, it holds that hogtying is almost never reasonable, as it poses a high danger of positional asphyxiation.
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.
