In April of 2020, a 72 year old combat veteran, himself a retired law enforcement officer, was arrested in his barbershop, for refusing to close his business during the lockdown ordered by our Governor. The criminal case is long over. The civil lawsuit that I filed is also over at this point. But the footage is a good reminder about your government.
Government employees will follow orders. Law enforcement will follow orders, constitutional or not. It doesn’t matter whether they have an American flag tattoo and/or sticker on their truck. It doesn’t matter whether they spout off on the inter-webs about patriotism and the Constitution. They’ll follow orders. And never count on the judiciary to hold them accountable.
When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.
His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.
He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer.
The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order. He beat the criminal charge. Here’s an excerpt of the dismissal order:
In the subsequent civil lawsuit, we asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. Here’s the original complaint:
The point is, here is concrete proof that it matters not whether your local police officer is a nice guy, or patriotic, or whatever. They will follow orders. They are agents of the government. If they don’t do it, they will be replaced with someone who will. But they will do it, I assure you – even if they personally disagree with it. It would be a tragedy to lose the pension and dental plan, of course. Don’t get confused about the difference between an individual’s personality and personal beliefs and their status as an agent of the government. There are countless examples of this, going back to the beginning of our republic. Don’t get caught ignorant.
On August 25, 2019 in Worcester, Massachusetts, police officers arrived outside Cornerstone Baptist Church. They were there attempting to retrieve a child after receiving a report of a custody dispute involving the granddaughter of the church’s pastor, Joseph Rizzuti, Sr. Officers arrived at the church to retrieve the child after the child’s father alleged that the mother had failed to return the child following a visit. Officers wrote in their reports that churchgoers and family members kept interfering, refused orders by police and resisted arrest. The body cam footage shows what happened. The church’s pastor, Joseph Rizzuti, Sr., stands outside the church, telling his daughter to leave. Worcester Police Sgt. Michael Cappabianca, Jr., walks over to him.
Is there a First Amendment right to call a police officer a “tyrant?” Yes. Does it matter whether he’s actually a tyrant or not? No. Does it matter whether you’re a pastor standing in front of your church or a homeless guy with a cardboard sign? No.
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:
“[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.
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:
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.
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.
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?
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….
Jeff Gray, the “Godfather” of First Amendment auditors on Youtube, this week stopped in a couple different small towns here in West Virginia, publishing two videos of his encounters. Jeff is a great guy. If you’re not familiar with him, he has a sort of raggedy cardboard sign he holds up that says “God Bless the Homeless Vets.” Then he goes to some public place and just says, “God Bless the Homeless Vets.” He’s super polite and respectful. People see the sign and they react however they’re going to react. Thus we see protected First Amendment activity, occurring in a traditional public forum, and then we see how our government servants end up reacting to that activity.
Jeff stopped in Chesapeake, West Virginia, where he was nearly trespassed off public property by a police officer, ironically standing in front of a veteran’s memorial. But for the most part, that one had a positive ending and overall experience. I encourage you to go watch that video.
Then, Jeff went to Mount Hope, West Virginia. When Jeff told me he was coming through West Virginia, asking where he should go, I told him about Mount Hope, where I exposed the fact that they had this police officer who was essentially terrorizing motorists on a nearby four lane highway. So apparently that’s where he chose to go, and you can watch the full video on his channel about just what happened. But here’s a few snippets. As Jeff explains in his videos, panhandling is a constitutionally protected activity. Here’s Jeff’s Mount Hope video:
Since government employees apparently have a difficult time grasping this concept, let me explain panhandling, as it relates to the First Amendment.
First of all, a municipality cannot just prohibit panhandling within its jurisdiction. A town cannot just decide that the First Amendment doesn’t apply within its borders. Theoretically, though they would likely be inviting litigation, a town could impose certain reasonable time, place and manner restrictions on panhandling. They would have to establish some legitimate content-neutral public safety reason for doing so, and then provide available alternatives that are still adequate. Traditional public forums such as parks, sidewalks, etc., could not be completely foreclosed from the activity.
Panhandling, or “begging” is protected by the First Amendment. The Supreme Court has held that the solicitation of “charitable contributions” is protected speech. Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). The Fourth Circuit has cited a sister circuit recognizing that, “We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not significant for First Amendment purposes.” Loper v. New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir.1993); cited by Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) (“We agree that begging is communicative activity within the protection of the First Amendment.”).
The location of this activity is extremely relevant to its protections. Places such as parks, streets, and sidewalks fall into “the category of public property traditionally held open to the public for expressive activity.” Indeed, the Supreme Court has repeatedly referred to public streets and sidewalks as “the archetype of a traditional public forum.” (Snyder v. Phelps 2011). If a municipality seeks to regulate protected speech in a traditional public forum, they may impose reasonable content-neutral time, place, and manner restrictions that are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). If the regulation is content-based however, the courts apply strict scrutiny. Under strict scrutiny, a regulation will be upheld “only if it is the least restrictive means available to further a compelling government interest.”
Thus step one is determining whether strict scrutiny applies, i.e., whether the regulation is content-based. If not, then intermediate scrutiny applies. The government’s restriction of speech is content-neutral if it is “ ‘justified without reference to the content … of the regulated speech.’ ” (Christian Legal Soc’y v. Martinez 2010). On the other hand, a restriction is content-based if it was “adopted … because of disagreement with the message [the speech] conveys.” “The government’s purpose is the controlling consideration.”
Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny—that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.”
In Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015), the 4th Circuit evaluated a Henrico County, Virginia ordinance that banned panhandling and several other forms of solicitation on all county highways. The Court established several evidentiary standards for the government to meet to satisfy intermediate scrutiny for regulating First Amendment activity such as panhandling.
The Court requires the government to “present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary.” Additionally, they have to prove that they actually tried other methods to address the government interest the regulation is designed to address, i.e., public safety concerns, flow of traffic, etc. If “available alternatives” are provided by the government, they need not be the speaker’s first or best choice, or provide the same audience or impact for the speech. But they must be adequate. If the speech is panhanding, the individual cannot be required to do so from a place where there is no target audience. If the speech is handing out leaflets, the speaker cannot be removed to only a spot where there is nobody to hand leaflets.
In short, someone engaging in protected speech generally cannot be subjected to disparate treatment based on the content of their speech whatsoever, and need only be subjected to regulation for legitimate content-neutral reasons only so long as the regulations are minor logistical restrictions, leaving adequate opportunity to continue to express the protected speech.
Therefore, a municipality cannot just prohibit panhandling within its jurisdiction. A town cannot just decide that the First Amendment doesn’t apply within its borders. Theoretically, though they would likely be inviting litigation, a town could impose certain reasonable time, place and manner restrictions on panhandling. They would have to establish some legitimate content-neutral public safety reason for doing so, and then provide available alternatives that are still adequate. Traditional public forums such as parks, sidewalks, etc., could not be completely foreclosed from the activity. Certain key high-traffic areas or spots could possibly satisfy this test. Certain key time restrictions could possibly satisfy the test. But just an outright ban within a town of all panhandling? Absolutely not. That would violate the First Amendment just as much as a ban on all protected speech within city limits.
It hit the news yesterday that several Oak Hill, West Virginia police officers had supposedly overdosed after narcotics were thrown at them by a suspect they were attempting to arrest. I was already looking into the science behind these claims when I found out that a client of mine actually witnessed what happened, and began filming with his cell phone.
“Sheriff’s Office: Two officers in Oak Hill overdose after suspect throws drugs at them” was the headline. Here’s the media report:
What were the chances that a client of mine just happened to be driving by when it happened? Compare the footage with the press release and let me know your thoughts on the matter. I have some initial thoughts, but want to look into it some more.
Here’s the statement issued by the sheriff’s department: