On October 16, 2021, the life of Silvester Hayes was altered forever. That morning, Hayes woke up early and went out to get breakfast for his four young children. While driving to get their favorite meal, which was french toast from a restaurant only a few blocks away from their home, Silvester encountered two Dallas police officers. He did not return to his kids with breakfast. Now a lawsuit has been filed and the bodycam footage has been released.
The lawsuit alleges the existence of a Texas state law conferring a right to resist an unlawful arrest:
In Texas, the use of force to resist an arrest is justified: (1) if, before the actor offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s use or attempted use of greater force than necessary. Tex. Penal Code Ann. § 9.31.
If you think that being falsely arrested can’t happen to you, then you have to watch this video. This video shows my client being arrested for DUI even though she was stone cold sober. This can, and does, happen to innocent people across the country. Here you will see an egregious example of this happening, as it plays out in real time on the officer’s bodycam.
My client, Yolanda Elliott, was a bus driver for the City of Bluefield, West Virginia. Mrs. Elliott is a completely innocent, hardworking good person. She was a bus driver for the actual city that ended up arresting her. She had then, and still has, a CDL license to drive large buses and trucks. Little did she know that when she showed up for work that day, on October 28, 2022, she would be pulled over while driving a city bus, accused of running a red light, and then pulled out of her bus and forced to perform a bunch of circus tricks, while the passenger of her bus watched.
Edgar Orea brought me this footage. He’s a street preacher who was arrested in Bluefield, West Virginia for the content of his protected First Amendment speech. Edgar and his wife moved to Bluefield in order to serve the people of nearby McDowell County, West Virginia, which is the poorest county in the entire nation. But from the very beginning, they were harassed by the Bluefield Police Department, as you’ll see in the video. The police objected to the content of their message. In this particular incident, they actually arrested Mr. Orea and took him to jail based on the content of his anti-abortion sign, which showed an aborted fetus.
There was a similar case litigated in Kentucky: World Wide Street Preachers’ v. City of Owensboro, 342 F.Supp.2d 634 (W.D. Ky. 2004). In that case, another street preacher was arrested in a public park for showing a large sign with a similar photograph of an aborted fetus. The police claimed that this was causing public alarm and was likely to cause a confrontation. So they cited the individual, but otherwise didn’t arrest him or interfere with his other activities. The Court held:
A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)….
In light of Supreme Court precedent, the Court cannot find that the Plaintiffs’ sign, no matter how gruesome or how objectionable it may be, constitutes “fighting words.” The Plaintiffs’ speech, whether one agrees with it or not, was certainly not of “slight social value.” Rather, their speech was a powerful, albeit graphic commentary on a societal debate that divides many Americans. Furthermore, their speech was not directed at any particular person. Their speech commented on a highly significant social issue and was calculated to challenge people, to unsettle them, and even to anger them, but not to insult them. Such social commentary is not only protected under Supreme Court precedent but also is highly valued in the marketplace of ideas in our free society.
Here, the Bluefield Police Department did much more than issue a citation, but rather placed Mr. Orea in handcuffs and carted him off for incarceration. Then they refused to return his signs, except for one. They charged him with two criminal misdemeanors: disorderly conduct and obstruction, two favorites of law enforcement officers for arresting people who have committed no crime. Fortunately, the charges were dismissed by the Court following a motion to dismiss based on the First Amendment.
This is footage of a 2019 arrest for failure to produce ID to a police officer. A car broke down; a mechanic was called, and showed up; some idiot thought it looked suspicious and called the cops; then the cops showed up and demanded ID. But the guy was busy and obviously annoyed that the cops are harassing him while he’s trying to help somebody. This interaction resulted in a civil rights lawsuit for false arrest. Originally, the officers were granted qualified immunity. But just last week, the 11th Circuit issued an opinion in the plaintiff’s appeal. Who was right? Was the mechanic illegally arrested?
Police officers around the nation continue to misunderstand the Fourth Amendment and the concept of reasonable suspicion. This footage was submitted by Nick Failla, showing his arrest in Cocoa, Florida several years back. He just recently obtained the bodycam footage.
Many cops believe that they get to forcibly ID anyone they encounter as a part of their job. They are taught that its policy to do this for officer safety reasons. We see it over and over again. In this particular video, the female officer, who is a supervisor, explains repeatedly to Nick that, because she’s a police officer conducting an investigation, Florida law allows her to obtain the ID of anyone she encounters – whether or not a crime is even alleged. Nick disagrees with her and asks repeatedly for an explanation of what crime he was alleged to have committed. Let me see if I can clear this up.
This is a common issue and is the subject of one of my most popular Youtube videos – a case currently being litigated in federal court, involving the arrest of my client in a West Virginia Walmart. When police officers encounter pedestrians, they could trigger an investigatory detention, which requires reasonable suspicion, or they could just be engaged in a consensual encounter, which requires nothing. It’s just a conversation.
Consensual encounters, i.e., a conversation, does not trigger the Fourth Amendment, and can be easily identified if the subject asks whether or not he’s free to leave. If the question isn’t asked, courts will look to the circumstances. Would a reasonable, regular person believe that he was NOT free to leave? Were emergency lights activated? Multiple police officers? Guns drawn? Put in handcuffs? Accused of criminal conduct? Told to show your hands? Told to get on the ground? Or was it just a conversation.
The question is whether a reasonable person would feel free to terminate the encounter. If the person was involuntarily detained by the officer, that constitutes a seizure under the Fourth Amendment, no matter how brief the detention or how limited its purpose.
If a detention occurs, the courts require the detaining officer to be able to articulate why a particular behavior is suspicious or logically demonstrate that the person’s behavior is indicative of some sinister criminal activity. It must be based on suspicion of illegal conduct. In other words, it cannot be based on suspicion of legal conduct, such as walking down a public sidewalk, or hanging out on top of your van with two women in a parking lot in front of a lake.
Here, there was clearly a detention. Therefore reasonable suspicion is required. Even in Florida, a police officer must have a particularized and objective basis for suspecting the person stopped of criminal activity.” United States v. Campbell, 26 F.4th 860, 880 (11th Cir. 2022) (en banc).
Andru Kulas was arrested by the Fort Collins Police Department in the early morning hours of August 29, 2021. He was pretty drunk and was expressing some criticism of the officers as they wrote him a citation for trespassing at a rooftop bar. When he refused the actual piece of paper, one of the officers attempted to shove it into his shirt pocket, which escalated the situation into the man being pepper sprayed at close range, among other things. He just filed a federal civil rights lawsuit.
This is a West Virginia case – bodycam of a traffic stop for lack of an inspection sticker and warrantless arrest. This involves the Martinsburg Police Department and Patrolman Daniel Smith. The guy in the video, D.J. Beard, wants to file a lawsuit. You tell me, what do you think? Does he have a case, in your opinion? Mr. Beard was almost immediately arrested for allegedly refusing to get out of his car. Is that what the footage shows?
This is the same police department that pulled over, and arrested, Corey Lambert, as featured in another video (different officer though).
Here are the criminal case filings, including the charging documents, police report narrative, as well as the dismissal orders:
About 8 months ago I did a video on the Jacksonville, Florida traffic stop of Braxton Smith by Officer Peppers of the Jacksonville Sheriff’s Office. After the bodycam footage hit the internet and the media, the agency received 14 complaints about the officer’s conduct, including a complaint by Mr. Smith. JSO Internal Affairs performed an investigation and the report has been released.
This footage shows a woman in Michigan attempting to visit her mother in a nursing home. The facility decides to trespass her from the property and call law enforcement. Once the police arrive, she voluntary leaves – or rather attempts to leave. Then this happens…. Once again, the issue arises: can the police detain and forcibly ID a citizen who is in the process of voluntarily leaving a private business following a trespassing complaint?
Here is the woman’s Youtube channel where she documents the entire ordeal.
Here’s a new West Virginia video I received out of Morgan County, West Virginia, showing an interaction between some young guys and multiple sheriff’s deputies outside a bar. What it shows is troubling, but not surprising: police officers who can’t control their temper when interacting with someone who is running their mouth – or as the courts call it, “mere words.” Here in the Fourth Circuit, police cannot use violent physical force in response to someone’s “mere words,” – even if they perceive them as obstruction or threats. See United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990).
This clip started making the rounds on Tik Tok and now it just popped up on the news here in West Virginia that the agency has ordered an independent investigation into the footage by an outside agency:
Morgan County Sheriff KC Bohrer says, “I have requested an investigation into the matter by an independent agency to be totally transparent and through.”
He says the issue will be ” thoroughly and impartially investigated” and asked for patience during the investigation. “As in any investigation it takes time to gather all the facts.”
This happened on December 3, 2022. The guy they’re talking to had been assaulted in a bar Berkeley Springs, West Virginia. His friend called police. After they arrived, it became clear that they didn’t intend to help. So one of the men began to film.
Apparently, after the video turns off, both men were placed in the rear of a police car for a while. Shortly afterwards they were released with no charges. The one guy was finally able to go to the hospital and receive medical treatment.
There does appear to me to be some constitutional violations in there. I really need to see the police report and the 911 communications to gather all the facts before giving a more informed opinion. In fact, I already submitted a FOIA request. Not surprisingly, given that an investigation was ordered, they’ve already denied my request:
Hopefully this isn’t one of those situations where an investigation is ordered and then… nothing is ever released. There seems to be an awful lot of those in West Virginia.
