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 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….

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

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

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. 

My Client Films Officer Appearing to Overdose After Suspect Allegedly Throws Narcotics

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:

Here’s the footage:

Cop Slams Pregnant Woman Over Broken Taillight – In Her Own Driveway

So many police encounters we see in the news, or on Youtube, were completely unnecessary. Some may say those are just circumstances where “A-holes collide,” but they need to keep in mind that we’re not talking about random people encountering each other, but rather an interaction between a citizen and that citizen’s government. These are not equal positions. Hot-headed police officers who primarily enforce their ego and authority, tend to escalate situations unnecessarily, creating crime out of thin air and endangering the safety of everyone. A little bit of common sense and a little bit of kindness would really go a long way. 

Recently, a federal lawsuit was filed in Kentucky and the body cam footage was released, showing a young pregnant woman confronted by a police officer, in her own driveway, over a busted taillight. Take a look and then I’ll give you my thoughts about whether her constitutional rights were violated. Can the police just pull in your driveway after you park and detain you in your yard, much less use force on you?

According to the lawsuit, the officer, McCraken County, Kentucky Deputy Jon Hayden threatened to tase this 24 year old pregnant woman, Elayshia Boey. He then “face planted” her into a cruiser, pinned her to the ground, with his knee on her back, holding her down with the full weight of his body. She was six months pregnant at the time. 

In his citation, Deputy Hayden wrote that after Boey refused to identify herself, he attempted to arrest her by grabbing her writ to “gain control.” However, the body cam footage showed that after the deputy asked her to identify herself, she gave her name. The deputy further wrote in his report that “after a brief struggle, Boey was then placed on the ground by physical force to gain control and compliance.” Boey and her mother were both arrested and charged with felony assault of a police officer. Those charges are apparently still pending. After a complaint was received, McCracken County Sheriff Ryan Norman said that the sheriff’s department had investigated itself and concluded that none of their policies or procedures were violated. He apparently didn’t mention whether any constitutional protections were violated. 

A few minutes later, after both women had been arrested, Hayden puts his body camera back on. His audio shuts off twice when he explains to other deputies what happened. Later, Deputy Hayden’s conversation with the jail nurse and the nurse’s evaluation of Boey are also not audible on the body camera. Note that when the women were upset and verbalizing their displeasure during the arrest, that he left that audio running. But at other times, he apparently concealed his own audio.

Deputy Hayden did not take her for medical treatment. Instead a jail nurse refused to admit her because of her injuries and being 6 months pregnant. Only then was she taken to an ER. Legal analysis aside, was any of that really necessary? Is it that difficult to just be kind, or at least calm? You would think that rational police officers would sometimes think to themselves, do I really need to be doing this right now? What is my purpose? What am I trying to achieve? This is where ego gets in the way. The question is not what you think you have the authority to do, but rather, what should you do? Hell, just acting rationally, what is in your own best interests? Whereas citizens should ask themselves at times whether they really want to invite the man into their lives, so should police officers ask whether they want to invite drama into their lives through demonstrating their perceived authority, or demanding what they perceive to be respect. 

It’s really not that much different than child custody litigation. Just because you can, or you think it’s fair, doesn’t mean that it’s also best for your child, or you in the long run. You’ll end up in a better position, and happier, by just being kind, or at least manipulative and pretending to be kind. Meanwhile, record and obtain evidence with a smile on your face. But I guess that’s too much to ask at this point. 

In the footage, we don’t see the beginning of the stop. Thus I’m not sure whether Boey was already out of her car prior to the initiation of the stop. This is actually a common issue I see. Can police officers pull into your driveway, knowing you just pulled in, got out of your car, and begin walking in your house, and then at that point initiate a traffic stop? This is where it depends on the circumstances. 

As we’ve discussed before, reasonable suspicion of a crime is required to detain a suspect. Usually in a traffic stop that is based on the officer allegedly observing a traffic law violation. Driving with a broken taillight could meet the reasonable suspicion requirement. But what about seeing the busted taillight, and then not getting to the suspect until they’re standing in their yard, the car now parked? What about not getting to them once they’re inside their house, even though you saw them drive with a busted taillight? This is where we could get into a lot of “what ifs” that could be tricky for a police officer. If you’re going to have to perform a traffic stop on someone who is now standing in their driveway, or yard, or porch, you might want to ask yourself if the crime for which you’re basing reasonable suspicion on is sufficiently important to justify entering this grey area that may involve you now being within the curtilage of someone’s home, without a warrant, and without probable cause.

Now, if there is a warrant, a police officer could even follow a homeowner inside their home to arrest them. Note I said it has to be their home. The home of a third party would require a search warrant, or a valid exception. If it was a “hot pursuit” situation, under some circumstances officers could be given quite a lot of leeway in entering, or remaining in the curtilage of a residence. But those “what ifs” don’t appear to be relevant here. We are looking at the most minor of minor traffic offenses, followed by an arrest for an alleged failure to identify, where the arrestee had just given her name. As I mentioned in a recent video on one of my cases, he tables turn when you’re talking about a police encounter occurring within the curtilage of a suspect’s residence. Law enforcement has no right to demand identification on your own private property – at least not without a warrant. 

But it just goes back to the fact that a police officer should ask himself, why am I here? What is my purpose? What do I have to gain? And also, what do I have to lose? It would be a novel idea for law enforcement in this country to just try being kind and using common sense. Of course, there are plenty of those officers around. You just don’t hear about them or see them on Youtube. Because they are the ones who go home at night – drama free. 

Cops Tase and Arrest Guy Sleeping in his Truck in a Home Depot Parking Lot

Police officers have a hard time understanding that reasonable suspicion to justify detaining a citizen is supposed to be based on suspicion of a crime, rather than a hunch or ego of the officer. How many police videos we see were completely unnecessary and achieved nothing, other than bad publicity, lawsuits and constitutional violations? 

Devin Thomas was asleep in his truck on Christmas night in a Home Depot parking lot in Delaware. He was waiting for the store to open because he needed to buy products they sell for his business. He was traveling for work, which takes place on the highways, hence the fact that he was sleeping in his truck. He awoke to a flashlight in his face and somebody trying to talk to him. 

A law enforcement officer may detain an individual for investigation when the officer has a reasonable suspicion, supported by articulable facts, that criminal activity is afoot. Courts, in this case the Third Circuit, consider the totality of the circumstances in determining whether the facts known to the officer amount to an objective and particularized basis for reasonably suspecting criminal activity. An officer is entitled to draw specific reasonable inferences from the facts in light of his experience.

Courts have ruled that the government “must do more than simply label a behavior as ‘suspicious’ to make it so.” Police officers must “be able to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.”

“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” However, the Supreme Court has noted “the fact that the stop occurred in a `high crime area’ [is] among the relevant contextual considerations in a Terry analysis.”

Courts in the Third Circuit have allowed officers to consider proximity to locations where crimes are known to have occurred as one factor in the development of reasonable suspicion. What crime was suspected here of Mr. Thomas having committed? I reviewed the state trespassing laws in Delaware. I see no basis for any objectively reasonable belief any of those even theoretically could have been violated here. 

It doesn’t appear that there could have been any reasonable suspicion that the crime of trespassing has been committed. Delaware doesn’t appear to have any automatic liability trespassing statute wherein you’re committing the crime of trespassing just by virtue of driving in, or parking in, the parking lot of a closed business. It doesn’t appear that there’s any evidence that Home Depot complained about this individual in particular, or about people driving in, or parking in, their parking lots after hours, or before hours. There appears to have been no allegation that there was any burglary that occurred at this location, but rather alleged knowledge of past issues. Certainly nothing particular to this individual. Moreover, no information is given that the behavior of parking in a parking lot, or the appearance of this individual, or this vehicle, justified suspicion of burglary. To the contrary, it appears to be a work truck in the parking lot of a work supply business. 

Trooper White wrote in his police report, that he was on “proactive patrol” and just happened to be passing by Home Depot when he observed a white truck with its lights on parked next to two Home Depot rental vehicles. He further wrote that “Home Depot recently advised” them that “they were having issues with their alarm system and requested additional patrols in the area for suspicious activity.” He wrote that it was 2:30 in the morning, and the store didn’t open until 7:00 a.m.

However, he mentioned no actual report of any criminal activity, much less criminal activity pertaining specifically to Mr. Thomas. At least not prior to the seizure of Mr. Thomas. It was a white truck in a construction material store parking lot. There was no indication that the vehicle had entered a closed-off area, through a gate, or past no trespassing signs. It was a public place parking lot. I see nothing in the Delaware trespassing laws criminalizing the behavior whatsoever. All we have here is an officer with a hunch and an ego. 

After we get past the reasonable suspicion issue, we have the fact that Mr. Thomas was tased here. The alleged justification for that, according to the officer who fired the taser was that Mr. Thomas was allegedly grabbing and pushing Trooper White’s arm as White attempted to forcibly unlock the driver’s side door. 

However, Trooper White can be heard on the dash cam footage saying to the tasing officer, “I didn’t mean for you to have to tase him.” Apparently that trooper tased Mr. Thomas because Trooper White told him to tase him. At least he did, but didn’t really mean it. At one point in their reports they mentioned that they used “de minimis” force in extracting Mr. Thomas from his vehicle. That’s literally not true. Tasing is actually a high level of force that’s not supposed to be used where unnecessary. I believe there’s a good case to be made here that, even if reasonable suspicion existed to extract Mr. Thomas from the vehicle, that the level of force was unreasonable. 

He was only suspected of having committed trespassing, at best. He wasn’t actually a threat to them in any way. He was just standing on his rights. He was surrounded by police officers. He wasn’t going anywhere. They had no indication of any immediate safety threat to any individual. Except to Mr. Thomas, of course.