My client, Wendell Marcum, was arrested in his own front yard by deputies with the Brooke County Sherriff’s Department, for cursing during his interaction with them about a dog complaint. Yesterday we filed a federal civil rights lawsuit in the Wheeling Division of the Northern District of West Virginia, alleging multiple violations of the Fourth Amendment, as well as the First Amendment. Can the police perform a warrantless arrest of a man standing in his own front yard, for cursing and asking them to leave his property?
The law is clearly established that an individual has a First Amendment right to express profanity during an interaction with law enforcement. SeeCohen v. California, 403 U.S. 15 (1972); see also Lewis v. City of New Orleans, 415 U.S. 130 (1974) (The U.S. Supreme Court reversed a conviction under a Louisiana statute that had provided that “It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.”).
The Supreme Court held in Payton v. New York, 445 U.S. 573 (1980) that, “absent exigent circumstances, an arrest in the home or curtilage area around the home must be accomplished by means of an arrest warrant….” In Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001), the Fourth Circuit held that police officers must have probable cause plus either a warrant, or exigent circumstances, to perform a search or seizure within the curtilage of a person’s home, and that if asked to leave, officers are required to leave and seek a warrant.
Supreme Court jurisprudence extends heightened Fourth Amendment protections beyond just the interior of the home itself, but also to the “curtilage,” which is the “land immediately surrounding and associated with the home,” because the curtilage is “considered part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180 (1984). The Fourth Circuit has made clear that a warrantless search of curtilage is presumed to be unreasonable. Covey v. Assessor of Ohio Cnty., 777 F.3d 186 (4th Cir. 2015).
WV law creates the possibility for a criminal charge (disorderly conduct) due to a subject’s expression of profanity where: (1) The person is in a “public place” and where he (2) Disturbs the peace of others by “violent, profane, indecent or boisterous conduct or language; and (3) is requested to desist by a law enforcement officer and doesn’t. The West Virginia Supreme Court held in 2015 that the word “others” in W. Va. Code Section 61-6-1b (“disorderly conduct”) does not include law enforcement officers, but rather than some other third party must be present and actually offended by the subject’s conduct, in order to commit the criminal offense of “disorderly conduct.” Maston v. Wagner, 781 S.E.2d 936 (W. Va. 2015).
Yesterday we filed a federal section 1983 civil rights lawsuit against the police officer featured in the “Hillbilly Law Degree” video posted back in October.
On January 10, 2021, my client, John, went to Walmart, during all the insanity that shall not be discussed. He was not committing any crime. He felt he was being treated unfairly. He was just trying to buy some products and was in the process of checking out. But Manager Karen at Walmart called the cops on him, reporting that he was refusing to wear a thing she wanted him to wear, and using some bad words. A police officer responded, and this is her body cam footage. If a non-crime was reported, usually they are investigating a potential trespassing situation. The problem with that is, many states, like West Virginia, only penalize trespassing where a customer was given the opportunity to leave, but refused. If the person even offers to leave, and the cop says, no you can’t leave, give me your ID or you’re going to jail, is that legal?
This presents a common scenario where police officers attempt to manufacture a “stop and ID” law, where none exists:
There’s a dispute between a store and a customer. The store calls the police, reporting something that’s not a crime. The police show up to investigate the said non-crime. They demand ID. Now like many states, West Virginia does not have a “stop and ID” law. However, if they have reasonable suspicion a crime was committed, and that a particular individual committed that crime, they can perform an investigative detention which can involve forcibly obtaining an ID from a suspect. So what is the crime? Can the alleged crime of “trespassing” be used to detain and ID a shopper who has not been asked to leave the store, and who has not been given the opportunity, or even allowed, to leave the store by the responding police officer?
This footage comes to us from Lake City, Florida, where a couple of guys were apparently doing some donuts in a fairly-new-looking Corvette, ending in the car catching on fire. The fire department arrived, as well as the police. Bodycam footage shows the conversation that ensued between the investigating officer and the driver of the burned car. Was the driver required to provide a statement for the officer’s report?
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.
What you’re about to see here is outrageous body cam footage that has never before been seen by anyone, other than law enforcement. It shows what happened to my clients, Jason Tartt, the property owner and landlord, as well as Donnie and Ventriss Hairston, his innocent and mistreated tenants, on August 7, 2020, when they were subjected to civil rights violations by two deputies with the McDowell County Sheriff’s Office, Dalton Martin and Jordan Horn.
Today we filed a federal civil rights lawsuit, which is posted below. But you can watch the footage for yourself. Before the body cams were turned on, what you need to know is that there was a complaint received that an abandoned church, in an overgrown parcel of land not owned by any of these individuals, apparently had four marijuana plants growing there, among the thick brush. Crime of the century, right? The perpetrators must be one of the elderly African American residents nearby, of course. Instead of treating them as human beings, let’s accuse them first thing, then mistreat, harass, and retaliate against, them if they dare to get uppity, or not know their place.
Donnie and Ventriss Hairston were sitting on the front porch of their rural home, when two deputies approached and began to harass and intimidate them. Their landlord, who lives next door, joined them shortly afterwards and began to ask questions. When they asserted their opinions and rights, retaliation ensued. The landlord, Jason Tartt, was seized and arrested. The Hairstons were shoved into their home against their will. This is never before seen footage, outside of law enforcement of course. Take a look and form your own opinion about what happened.
On January 31, 2022, Brian Beckett was traveling home from work, driving Northbound on WV Route 19 in Mount Hope, West Virginia. It was around 5:45 p.m. He ended up getting pulled over for speeding by Mount Hope Police Department officer Aaron Shrewsbury. Instead of getting a speeding ticket, or even a warning, Mr. Beckett ended up being pulled out of his car and arrested for obstructing an officer, disorderly conduct, speeding, and reckless driving.
Mr. Beckett was driving home from an industrial work site in a nearby county. He’s not a criminal – not out selling drugs or committing crimes – just trying to drive down the road. He had a dash camera recording, which appears to show that he was driving safely. It doesn’t indicate his speed, but that’s not what this video is about. Officer Shrewsbury would subsequently swear under oath in his criminal complaint affidavit, seeking court authorization for Mr. Beckett’s arrest, that not only did he radar Mr. Beckett speeding, but that “as I was catching up to the vehicle, I noticed the vehicle weaving through traffic recklessly” but that “I was able to pull behind the vehicle and get it stopped….” Take a look at the dash cam footage from Mr. Beckett’s car just prior to the traffic stop, and see if that statement appears to you to be true.
Mr. Beckett used his personal cell phone to record his interaction with Officer Shrewsbury. Despite the officer stopping the video and attempting to delete the recording from Mr. Beckett’s phone, the officer couldn’t access it. During arrest processing, the officer was placing the phone in front of Mr. Beckett’s face in order to attempt to unlock the phone using facial recognition, to no avail. So he was unable to delete this footage, which shows the encounter, what led to Mr. Beckett’s arrest, and the fact that Officer Shrewsbury stopped the recording.
So Officer Shrewsbury immediately arrested Mr. Beckett for obstruction for not rolling his window down all the way. He never bothered to ask Mr. Beckett for his license, registration, proof of insurance, or even his name. He just demanded that the window be rolled down all the way, not providing a reason – just because he demanded it. Then immediately removed him from the car and arrested him. The officer never even identified himself, the reason he pulled him over, or explained any legitimate reason he required the window rolled down.
In the subsequent criminal complaint, no allegation was made or charged that it is illegal in West Virginia to not roll one’s window down completely during a traffic stop. He was merely charged with obstruction. Under West Virginia’s obstruction statute, the plain language of the statute establishes that a person is guilty of obstruction when he, “by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity.” The Fourth Circuit recently examined the statute:
As West Virginia’s high court has “succinct[ly]” explained, to secure a conviction under section 61-5-17(a), the State must show “forcible or illegal conduct that interferes with a police officer’s discharge of official duties.” State v. Davis, 229 W.Va. 695, 735 S.E.2d 570, 573 (2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611 (2008) ). Because conduct can obstruct an officer if it is either forcible or illegal, a person may be guilty of obstruction “whether or not force be actually present.” Johnson , 59 S.E.2d at 487. However, where “force is not involved to effect an obstruction,” the resulting obstruction itself is insufficient to establish the illegality required by section 61-5-17. Carney , 663 S.E.2d at 611. That is, when force is not used, obstruction lies only where an illegal act is performed. This is because “lawful conduct is not sufficient to establish the statutory offense.” Id.
Of particular relevance to our inquiry here, West Virginia courts have held that “when done in an orderly manner, merely questioning or remonstrating with an officer while he or she is performing his or her duty, does not ordinarily constitute the offense of obstructing an officer.” State v. Srnsky, 213 W.Va. 412, 582 S.E.2d 859, 867 (2003) (quoting State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 373 S.E.2d 484, 486 (W. Va. 1988)).
Hupp v. State Trooper Seth Cook, 931 F.3d 307 (4th Cir. 2019).
At no point did Mr. Beckett refuse to participate in the traffic stop being conducted by Officer Shrewsbury. He rolled the window down partially. He was clearly visible through the non-tinted glass, his hands were visible and non-threatening; he hadn’t refused to provide his license, registration and proof of insurance. He hadn’t refused to identify himself, or to do any act he was required by law to perform. Moreover, I’m aware of no State law, nor did Officer Shrewsbury identify one in the charging documents, requiring motorists who are subjected to traffic stops in West Virginia to roll their windows completely down as a matter of routine.
It appears that this arrest occurred in the absence of probable cause, and therefore in violation of the Fourth Amendment. But it didn’t stop there.
Officer Shrewsbury also alleged that, after pulling Mr. Beckett from the vehicle and placing him in handcuffs, while walking Mr. Beckett to the police cruiser, that Mr. Beckett remarked that “this was bullshit.” Officer Shrewsbury wrote in his criminal complaint affidavit that, “I then informed Mr. Beckett to stop cussing and placed him inside my vehicle.”
Under West Virginia’s disorderly conduct statute, no probable cause could exist for a warrantless arrest for disorderly conduct by virtue of saying, “this was bullshit.” First of all, if that were possible, such would be a First Amendment violation, as the West Virginia Supreme Court warned law enforcement back ini 1988:
“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”
State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 773-74 373 S.E.2d 484, 486-87 (1988).
First Amendment issues aside, merely using bad language in the presence of a supposedly-sensitive police officer, cannot violate West Virginia’s disorderly conduct statute. Not that I expect law enforcement to actually learn the law, but there is a 2015 West Virginia Supreme Court case directly on point. In Maston v. Wagner, 781 S.E.2d 936 (W. Va. 2015), the West Virginia Supreme Court held specifically that the WV disorderly conduct statute, while potentially criminalizing profane language under some circumstances, in public and in front of other people who complain, does not criminalize profane language used by a citizen during their interaction with law enforcement.
If that’s not enough, the U.S. Supreme Court has sent a clear message through its rulings, such as in Cohen v. California (1971) and Lewis v. City of New Orleans (1974) that free speech, however offensive or controversial to sensitive virgin-eared police officers, is afforded a high level of protection.
Officer Shrewsbury didn’t even allege in his criminal complaint affidavit that a third party had overheard Mr. Beckett’s alleged use of the word bullshit, or complained about it. Nevertheless, the local magistrate signed off on it, approving it as probable cause under West Virginia law. Which is a disgrace, given the fact that the State Supreme Court clearly warned otherwise about seven years earlier.
Also a disgrace to our Constitution, is the fact that these charges are still pending against Mr. Beckett. The individual police officers like this you see in these videos never do it alone. Behind the scenes are politicians and prosecutors.
In fact, the politicians and prosecutors behind the scenes of this Officer Aaron Shrewsbury should explain why this police officer is allowed to victimize citizens in the first place, given the fact that he had previously lost his certification to be a police officer in West Virginia while working at the Fayette County Sheriff’s Office for “Dishonesty – willful falsification of information.” No, unfortunately I’m not making that up. That’s right – the same police officer who filed false and incorrect charges against Mr. Beckett, has somehow in the past managed to screw up his job so badly that he lost his certification to be a police officer, for lying as a police officer. Truly unbelievable. But also not unbelievable.
Also not surprisingly, other complaints have surfaced about Officer Shrewbury. This one may sound familiar. August 15, 2021, a few months before Mr. Beckett’s incident, a 20 year old kid from Ohio was driving through this same area, and ends up getting arrested by Officer Shrewsbury for misdemeanor possession of marijuana. And listen to this, the kid says, according to Shrewsbury’s report, “this is fucking bullshit.” That incident ended in Officer Shrewsbury punching that kid in the face, and then placing him handcuffed, in the back of a police cruiser, with a blood covered face and broken jaw, which required surgery to fix.
The kid was finally able to get help from another police officer at the scene. He said hey, I need help. When asked why he needed help, the kid said, “my tooth is in my lap.” The officer then looked at him and saw a large amount of blood coming from his face and on his shirt. That officer then promptly took the kid to the hospital, which began a long period of medical treatment to fix the damage caused by Officer Shrewsbury.
More about this incident shortly, but the question begs, why do the politicians and prosecutors turn this man loose on the public. You can see from this video the way in which he appears to hold regular citizens in contempt, treating them like garbage to be discarded.
If you have any information about Officer Shrewsbury, who as far as I know is still out there interacting with the public, please reach out.