Tag Archives: police misconduct

Cops Violate Fourth Amendment Over JAYWALKING Kids | Doorbell Cam

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This footage was submitted by a homeowner in Loraine, Ohio, showing police officers enter onto a woman’s private property and refusing to leave. They demand that she send her kids outside, because the officers allege that they observed them jaywalking. Her doorbell footage shows otherwise. I’ve previously discussed what you need to know when police are at your door.

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.”

Police officers, and anyone else really, have an implied license to come onto your property and knock on your door. This implied license can be revoked. Homeowners can prevent ordinary citizens and police officers alike from conducting a knock and talk by revoking their implied license to be there. However, few citizens know that an implied license exists. Generally, the courts require that a homeowner do so by clear demonstrations or express orders. For instance, asking someone to leave or refusing to answer questions. 

Here’s an excerpt of the police report in this particular case, posted with the original video:

On February 15th, 2023 I was operating as a member of the Lorain Patrol Impact Team targeting high crime areas throughout the City of Lorain, Ohio. I was driving an unmarked Ford Taurus equipped with emergency lights and sirens. I was also dressed in plain clothes with “Police” identifiers displayed on the exterior of my vest, making myself readily identifiable as a Police Officer. It should be known that ATF Special Agent Fabrizio was also in my patrol vehicle at this time. On this date at approximately 1539 hours, we were patrolling the intersection of W. 27th Street and Reid Avenue. It should be noted that on 7/26/2022 a shooting had occurred between a group of juveniles in the area of 126 W. 27th Street and the surrounding area is a known hot spot for shots fired incidents and weapons violation complaints. While patrolling this intersection, S.A. Fabrizio and I observed three males who appeared to be juveniles with there hands in both hooded sweatshirt pockets and their waistbands while looking around their immediate area. Through my prior training and experience, this type of behavior is an indicator that the person may be both armed and checking their surroundings.

S.A. Fabrizio and went around the block to the intersection of W. 27th Street and Broadway Avenue and observed the males illegally cross the road not in a posted cross walk and began approaching the residence of 126 W. 27th Street. Due to this observed traffic violation, I approached the above listed residence and activated my emergency lights and sirens in an attempt to initiate a traffic stop for this violation on the three individuals while they were approaching the house in the front yard. S.A. Fabrizio exited the passenger side and advised the males to stop and to come back to our patrol vehicle. The males acknowledged our presence by looking back at our patrol vehicle and quickly made their way up the front steps to the residence and entered and refused to exit. A female (later identified as Mary Hildreth) came to the front door and began yelling at both S.A. Fabrizio and I as well as asking what we were doing and what the problem was.

Sheriff Deletes Facebook Page | “I’m Getting Bashed”

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I often get the question, can public officials block me or delete my messages on social media? Isn’t that a First Amendment violation? Well, some more West Virginia news today: the Fayette County WV Sheriff’s Department has just deleted its Facebook page following negative comments they’ve received following a local incident. Here’s what the sheriff said about why he did it:

“Sorry, but I’m getting bashed and getting messages. People are just so rude and unfair….”

He said they would just delete the negative comments, but they did that once before and got sued, so the only option is to delete the page.

“We deleted comments before and got in trouble for that,” he said.

Why is the public so upset at this sheriff’s department? And what is the law on this? Can an official government social media page block you or delete your comments? 

The WV ACLU has previously been involved with this issue. They actually sent a letter to the members of the WV legislature about this, attempting to warn legislators from violating First Amendment rights on social media.

They also have this handy flow chart:

So here’s the basic law. The First Amendment protects the right to criticize public officials – period. N.Y. Times v. Sullivan. But it’s not limited to newspapers. The SCOTUS has referred to social media as a “modern public square.” Packingham v. North Carolina. 

When the government provides a forum for speech, such as a Facebook page, or a Youtube channel, the government actor may not exclude certain speech or actors from that forum on the basis of their viewpoints. 

In 2019, the Fourth Circuit, which is applicable here in West Virginia, held that an elected official’s Facebook page on which she discussed upcoming events and community issues constituted a “public forum,” and that the official engaged in unconstitutional viewpoint discrimination when she banned a constituent from her Facebook page. That was Davison v. Randall. The Court found that the official acted under color of law when she banned the constituent because she treated the Facebook page as a “tool of governance.” 

Similarly, I once sued a notorious WV state senator for an under color of law civil rights violation due to a rant about a constituent on his Facebook page. I’ll link that video if you want to watch it. 

Thus, it’s now settled case law in the Fourth Circuit that a constituent’s constitutional rights extend to comments made on a public official’s social media page. An official may not block protected speech on an account dedicated to their official duties. Officials may, however, delete speech that is not considered protected under the Constitution, such as speech that makes a true and immediate threat to another person, incites others to imminently violate the law, or contains obscene language, as narrowly defined by the SCOTUS in Miller v. California. 

This is not limited to social media accounts that are officially noted or categorized as an “official” page of a public official. This can also extend to a public official’s personal social media accounts, if that account is used to discuss public matters or for other public purposes. This is what happened in my WV State Senate case. The courts will look at the content, not just the title. 

Here, given the fact that the Fayette County Sheriff’s Department’s Facebook page is (or rather “was”) both in title and substance, and official account, there is no question that they could not delete comments and posters based on their viewpoints. At least not unless they contained speech that is not protected, such as threats or the narrow types of obscenities, which mind you, as far as police go, as I’ve discussed in prior videos, “F the police” has been found to be protected speech. 

So yes, if a law enforcement agency does not want to have their feelings hurt, or is upset by comments they’re receiving, they can delete the page. But they cannot delete viewpoints. 

BREAKING: WV State Police Implodes | Whistleblower Tells All

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In the past couple of days, WCHS has been reporting about an anonymous whistleblower letter from someone within the West Virginia State Police, revealing numerous specific allegations of misconduct, mostly by senior staff at the agency. I just obtained a copy of that letter and it’s unbelievable.

Here are screenshots of the actual letter:

Cops Afraid of LiveStream UPDATE | Court Says First Amendment RIGHT!

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Do you remember this case – this video I posted about a few months back – about whether there’s a constitutional right to “livestream” encounters with police officers? Well there’s a huge update from that case that you’re not going to want to miss, or rather misunderstand. As I explained in the prior video, livestream video removes the ability of dishonest cops to destroy evidence and conceal their misconduct. That’s a good thing for us. But not surprisingly, they don’t like that. So, they attempted to find a way around it. “Officer safety.” 

Here’s the original video:

Then you had this traffic stop involving Dijon Sharpe in Winterville, North Carolina, which then turned into a federal civil rights lawsuit. As discussed in the first video, that case was lost at the trial court level, and appeared to have backfired against the plaintiff, and in favor of government. Well now that has changed. 

Last week the U.S. Fourth Circuit Court of Appeals overturned the trial court’s ruling and confirmed that we indeed have a First Amendment right to livestream police officers, including as an occupant of a vehicle during a traffic stop. But, as government likes to remind us, it’s not absolute. The government could still infringe on those rights under certain facts. 

My favorite excerpts from the opinion:

Creating and disseminating information is protected speech under the First Amendment. Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011). “‘[A] major purpose of’ the First Amendment ‘was to protect the free discussion of governmental affairs.’” Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 755 (2011) (quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam)).

And other courts have routinely recognized these principles extend the First Amendment to cover recording—particularly when the information involves matters of public interest like police encounters. See, e.g., Ness v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021) (“The act[] of . . . recording videos [is] entitled to First Amendment protection because [it is] an important stage of the speech process that ends with the dissemination of information about a public controversy.”).

We agree. Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record. We thus hold that livestreaming a police traffic stop is speech protected by the First Amendment….

The Town purports to justify the policy based on officer safety. [Appellees’ Response Brief at 55.] According to Defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. [J.A. 9.] They support this claim by arguing, with help from amici, that violence against police officers has been increasing—including planned violence that uses new technologies. [See, e.g., Amicus Brief of the Southern States Police Benevolent Association at 9.] On Defendants’ view, banning livestreaming prevents attacks or related disruptions that threaten officer safety. 

Here’s the full opinion:

Despite the government’s claims, the Court found that the government had not established a sufficient specific officer safety issue due to traffic stop occupants engaged in this constitutionally protected activity. However, the Court left open the possibility that the government could do so. 

Unfortunately, the opinion granted qualified immunity to the individual officers in the lawsuit, finding that since this was the first opinion confirming this specific constitutional right, that the right was not clearly established, and that therefore the officers were entitled to qualified immunity. 

The important part is however, that from this point on, police officers are on notice, whether they choose to be ignorant or not, that livestreaming is constitutionally protected under the First Amendment. So in the end, the case did not actually backfire. It worked. The process worked. And although these individual officers will not be held accountable, this opinion will form the basis for others being held accountable in the future. 

With qualified immunity, we have to be happy with each and every win that we get. Remember that when the government attempts to use “officer safety” to steal our freedoms, what is the proper response? That’s right: Freedom is Scary. They need to deal with it, or get another job. 

Tased To Death For Sitting in Parking Lot | NO CRIME Reported

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New bodycam footage just released out of Raleigh, North Carolina, where I once worked as a prosecutor, showing police officers encountering, detaining and using force on Darryl Tyree Williams on January 17, 2023. That use of force, involving multiple uses of tasers, by multiple officers, resulted in the death of Mr. Williams. 

What I want to focus on is not the actual tasing part. You know how that goes. But rather, whether it was constitutional for him to have been detained and handcuffed in the first place. Nobody had reported a crime. Rather, the officers were allegedly engaged in what they called “proactive patrols” of business parking lots in a location they claim “has a history of repeat calls for service for drugs, weapons, and other criminal violations.” 

This is an important constitutional issue. When did the seizure take place? When were Fourth Amendment protections first triggered here? It depends on the facts, and in this case, the footage. 

Here’s the police report:

You have two different scenarios for these types of police encounters:

1) consensual encounters, which are theoretically voluntary in nature – meaning that the suspects are free to leave at any time. This does not trigger Fourth Amendment protections; and then you have

2) a detainment, which does trigger Fourth Amendment protections. For a lawful detainment, officers must have reasonable suspicion of a crime. That did not exist, according to the report, until after the door was opened. 

So, if the occupants in the car were already detained prior to the officer observing the open container and marijuana, they were being illegally detained from the very beginning. The issue here is a factual one.

As a general matter, police officers are free to approach and question individuals without necessarily effecting a seizure. Rather, a person is seized within the meaning of the Fourth Amendment “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). 

Such a seizure can be said to occur when, after considering the totality of the circumstances, the Court concludes that “a reasonable person would have believed that he was not free to leave.” Id. (quoting United States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989)). 

Similarly, when police approach a person at a location that they do not necessarily wish to leave, the appropriate question is whether that person would feel free to “terminate the encounter.” See Florida v. Bostick, 501 U.S. 429, 436 (1991). “[T]he free-to-leave standard is an objective test, not a subjective one.” United States v. Analla, 975 F.2d 119, 124 (4th Cir. 1992).5… (United States v. Nestor (N.D. W.Va. 2018)).

These are relevant facts to examine:

T]he number of police officers present during the encounter, whether they were in uniform or displayed their weapons, whether they touched the defendant, whether they attempted to block his departure or restrain his movement, whether the officers’ questioning was non-threatening, and whether they treated the defendant as though they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature.”… (United States v. Nestor (N.D. W.Va. 2018))

Jealous Cops Seize Trophy Antlers | UPDATE: Lawsuit Filed

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In the Fall of 2020, David Craft, who then lived in Statesville, North Carolina, killed a monster buck in McDowell County, West Virginia, and also killed another trophy buck back in North Carolina, during the same season. David is a serious deer hunter. He does his homework; he puts in the time. He gets result. But others get jealous. Law enforcement ended up essentially stealing his antlers, posing with them for the media, dragging him through over a year of frivolous criminal prosecution, and then abruptly dropping the charging just prior to the jury trial, when it turned out they had no evidence.

You can read the full background in my first post about this case, here.

This week we filed a federal civil rights lawsuit against the two primary police officers involved. Here’s the full complaint:

Here’s the original video:

WV Sheriff Covers for Daughter’s DUI Wreck

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The cover up is always worse than the crime, isn’t it? I mean, if you’re an elected sheriff, wouldn’t it be better to allow your irresponsible 22 year old daughter who drove drunk and crashed her car to get a DUI, than to use your position to protect her from the consequences of her actions, and thereby possibly destroy your career, as well as public confidence in their local government?

This video comes to us from Berkeley County, West Virginia, where the daughter of the local sheriff was allegedly returning home from a night of drinking at a bar, but failed to make it home, instead crashing her car. A Berkeley County deputy – a subordinate of Sheriff Nathan Harmon (her father) – arrived at the scene. His body cam captured what he saw….

Media Reports:

Berkeley prosecutor to seek special prosecutor in connection with traffic crash involving sheriff’s daughter
Berkeley County sheriff responds to scrutiny after daughter’s traffic accident
In his own words: Berkeley County sheriff explains actions in daughter’s car wreck

Cop Taunts Shooting Victim’s Father

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In Sherman, Texas, a police officer with the Paris Police Department – Officer Derek Belcher – was caught on video, including his own body cam, taunting the father of a young man who was shot by police several months earlier. The father was upset that his suicidal son was shot in the back by police officers, resulting in paralyzation. Apparently, the father had been expressing his displeasure with the Paris Police Department, including by “flipping” them off, which as I’ve discussed in prior videos, is a constitutionally protected activity under the First Amendment. Following the release of the footage, Officer Belcher was placed on administrative leave.

You can watch the body cam from the man’s son being shot here.

Detained, Arrested and Beaten Over Cheeseburger Dispute

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It’s happened yet again – this time in Ohio – where police arrive to a trespassing complaint at a business (this time at a McDonald’s) and instead of allowing the person to leave the business, they instead detain and forcibly ID the individual. Do police officers have the right to detain someone under these circumstances? More importantly, do they have NEED to do so?

From the Dayton Daily News:

An incident that led to an officer hitting a woman multiple times Monday began as a dispute over missing cheese on a Big Mac. Butler Twp. Sgt. Todd Stanley and Off. Tim Zellers responded at 4:20 p.m. to a call about a disorderly customer at the McDonald’s at 3411 York Commons Blvd., and on arrival, officers spoke to Latinka Hancock, according to a police report.

When the woman refused to provide her ID, the officers engaged in a brutal and violent use of force against her, which one customer inside the McDonald’s caught on video:

https://www.facebook.com/watch/?v=691942075763580

Following the release of the footage to the public, the officer has been placed on leave, pending internal investigation.

Cop Points Gun at Man’s Head During Traffic Stop | Know Your Rights – Not Misinformation

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There is a video showing a female cop suddenly pull her pistol and point it at a driver’s head during a routine traffic stop. Then there was a subsequent video providing commentary and advice about the situation. However, the information was incorrect. There’s unfortunately a lot of misinformation floating around about the rights of vehicle occupants during traffic stops. It’s important to know your actual rights and not misinformation that could really cause you some serious problems.

What are your basic constitutional rights at a traffic stop?

The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015).

Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop. The Supreme Court has provided a list of acceptable tasks that are connected generally to safety and driver responsibility:

Officers will usually question a driver about the traffic infraction; they will run the driver’s license plate; they will request and review the vehicle’s registration and insurance; they will check for outstanding warrants; and lastly they will write a ticket. Officers also commonly question drivers about their travel plans. So long as they do so during the time that they undertake the traffic-related tasks for the infraction that justifies the stop (Arizona v. Johnson), officers may also ask questions about whether the driver has drugs or weapons in the car, or even walk a drug-sniffing dog around the car (Illinois v. Caballes). These unrelated tasks turn a reasonable stop into an unreasonable seizure if it “prolongs” the stop. Officers may not avoid this rule by “slow walking” the traffic-related aspects of the stop to get more time to investigate other potential crimes. 

Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes. See Hernandez v. Boles (6th Cir. 2020).

Additionally, “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). That rule, the justification for which is officer safety, extends to passengers, as well. Wilson, 519 U.S. at 414–15, 117 S.Ct. 882. (United States  v. Vaughan, 700 F.3d 705 (4th Cir. 2012)).

As for the 9th Circuit, where this encounter took place, “pointing guns at persons who are compliant and present no danger is a constitutional violation.” Thompson v. Rahr, 885 F.3d 582 (9th Cir. 2018) (citing Baird v. Renbarger , 576 F.3d 340, 346 (7th Cir. 2009)).

We do not discount the concern for officer safety when facing a potentially volatile situation. But where the officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force.

Original video here.

Review video with the misinformation here.