There’s a jury trial in Euclid, Ohio this week where Euclid police officer, Michael Amiott is being prosecuted for a use of force incident following the 2017 traffic stop of Richard Hubbard. Amiott is charged with two counts of assault and one count of interfering with civil rights. Cell phone video showed the officer repeatedly punching Richard Hubbard after he was pulled over for an unspecified moving violation.
Hubbard was accused of resisting arrest after allegedly refusing Amiott’s orders, and the ensuing struggle resulted in Hubbard being hit multiple times while on the ground. The criminal charges against Hubbard were later dropped, and while he suffered no permanent injuries, the city later agreed to a $450,000 settlement with both him and the owner of the car he was driving.
Following a 45-day suspension, Euclid Mayor Kirsten Holzheimer Gail fired Amiott from the police force, but an independent arbitrator reinstated him a year later. Nevertheless, Amiott was arrested and charged in Euclid Municipal Court in August of 2019 following further investigation, and his trial was subsequently delayed two years by COVID-19.
The entire trial has been live streamed on Youtube by WKYC and some of the testimony has been interesting. This is what we’re dealing with by the way, in the mission to obtain some accountability where citizens are violently victimized by the government.
Also, this isn’t his only excessive force incident:
Someone sent me another interesting video from Tik Tok, this time showing cops making an entry into a home pursuant to a search warrant, guns drawn, due to the alleged high crime of failure to obtain a building permit. Here’s the footage:
You can hear them yell search warrant and then abruptly make entry, which is very close to a no knock entry. There is a constitutional requirement that police officer knock and announce their presence prior to making entry, even with a valid search warrant. There are exceptions for where a no knock warrant is obtained, or where exigent circumstances are presented at the scene, assuming the dangerousness presented wasn’t known prior to the warrant being obtained.
Assuming this is true that the search warrant was obtained due to a failure to obtain a building permit, I have some issues with this. Just because a search warrant is obtained, that doesn’t entitle law enforcement to treat the homeowner like she’s a drug dealer or known violent felon. Police still must act reasonable in executing a search warrant. This requires adjustment for the particular facts of the situation.
Merely executing a search warrant doesn’t justify pointing a gun at someone, assuming someone had been in the home. But alas, this is the world we live in, because we have allowed the government to do what it does best. For this reason, I’m glad that I live in a jurisdiction where there are actually no building permits. Do the buildings fall down around us? No, no they don’t. Just like the fact that we could fire every employee of every state barber and cosmetology board in the nation, and we’d all survive; we’d all be fine.
Government needs to be drastically downsized. How many cops were involved in this? Did they just need some extra hand-on-gun time this month? It’s too bad these tough guys weren’t in Uvalde. All-in-all, I’m sure most judges would allow what’s occurred here. But I wouldn’t. This is unreasonable. Fire everyone involved and don’t replace them. That’s what I’d do.
The homeowner reached out and spoke with my today, also providing copies of the underlying documents. It only gets worse with more information. Check it out:
About 7 months ago, I posted a video about a West Virginia police officer, Everette Maynard, formerly of the Logan, WV Police Department who was found guilty by a federal jury of violating an arrestee’s civil rights by using excessive force. This was caught on video. This is the one where the officer was caught by a surveillance camera flipping the bird to the camera.
Today I talked to one of the investigators involved with that prosecution and thought I would give you an update video about what ended up happening to Officer Maynard. The DOJ recently issued another press release on the case, announcing that former-Officer Everette Maynard has been sentenced to 9 years of prison to be followed by 3 years of supervised release due to his conviction of violating an arrestee’s civil rights by using excessive force against him.
In the video I posted late last year, I showed you the actual photos presented to the jury during the trial, and I went over the actual jury instructions used in that case. Here’s the video:
This is a rare case of a police officer being held accountable in the most important way. He received almost a decade in prison for his actions. The U.S. Department of Justice had this to say about the sentencing of Maynard:
“This defendant’s abuse of law enforcement authority inside a police station was egregious and caused serious injuries,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “Police misconduct undermines community trust in law enforcement, and impedes effective policing. This sentence confirms that law enforcement officers who use excessive force against arrestees will be held accountable.”
Title 18, United States Code, Section 242 makes it a crime to deprive any person of his civil rights under color of law. For a jury to find the defendant guilty, the federal prosecutors must prove each of the following elements beyond a reasonable doubt at trial:
1. The defendant acted under color of law;
2. The defendant deprived the victim of a right secured or protected by the Constitution or laws of the United States – here, the right of an arrestee to be free from unreasonable seizures, which includes the right to be free from the use of unreasonable force by a law enforcement officer;
3. The defendant acted willfully; and
4. The defendant’s acts resulted in bodily injury to the arrestee.
(NOTE: elements 1 and 2 are by themselves a misdemeanor; when elements 3 and 4 are present, it rises to the level of a felony.)
On Nov. 17, 2021, a federal jury convicted Maynard of using excessive force against an arrestee while Maynard was a police officer with the Logan Police Department in West Virginia. At trial, the jury heard evidence that Maynard assaulted the victim in the bathroom of the Logan Police Department before dragging him into an adjoining room, hauling him across the room, and ramming his head against a doorframe.
The assault initially rendered the victim unconscious and left him with a broken shoulder, a broken nose, and a cut to his head that required staples to close. While the defendant assaulted the victim, the defendant berated the victim for “making demands” of him by, among other things, asking to go to the bathroom. After the assault left the victim unconscious in a pool of his own blood, the defendant bragged about his use of force.
It’s important to note that, in this actual case, the jury was instructed that a police officer “may not use force merely because an arrestee questions an officer’s authority, insults the officer, uses profanity, or otherwise engages in verbal provocation – unless the force was otherwise objectively reasonable at the time it was used. Additionally, the jurors were instructed that an officer may not use force solely to punish, retaliate against, or seek retribution against another person.
These sorts of unnecessary uses of violent force against arrestees, if true, can never be reasonable.
How did the jurors know that it happened this way? Because it was captured on video, which is by-far the most important tool available to us for constitutional accountability. The police certainly like to use video evidence against the public in their prosecutions. But they don’t like it when it happens to them. In this case however, I’m told that it was actually a law enforcement officer who originally blew the whistle on this guy to federal investigators. Good for that individual. There needs to be more of this. And I have reason to believe that there will be more of this in West Virginia.
My email inbox blew up this weekend after a nationally-known First Amendment auditor on Youtube, Long Island Audit, posted a video of his interaction at a courthouse that is local to me, in Greenbrier County, West Virginia. Here’s the video:
People have been asking for my take on this video. Given the fact that I have an office a stone’s throw away from where this was filmed, I’ve been in that courthouse many times. In fact, I was first sworn in to practice in West Virginia circuit courts in that very courthouse.
As you see in the video, here are the relevant facts. The auditor enters the courthouse. You do have to go through security to get in. You don’t get ID’d, but you go through a metal detector, and mind you, they’re filming you as you walk in as well. He goes into the county clerk’s records room, which is where they keep the property deeds, surveys, etc., and was asked to leave. A courthouse security officer then approaches and says he’s not allowed to film there. Then he makes his way eventually to the county commission room, where he speaks with the actual elected sheriff and an attorney. He explains what he’s doing, but declines to give his full name. At that point he’s asked to leave. On the way down the stairs, the deputy escorting him gets in his face, and at one point asks where he’s from. Once outside, that deputy then says that he has decided to demand his ID, because he’s now undertaking an investigation of a suspicious person who was making people in the courthouse “uneasy.”
Let’s sort through the legal issues here….
Courthouses in West Virginia have some confusing legal authorities presiding over them. There’s really three separate governmental authority figures: the court, the sheriff, and the county commission. There is one West Virginia Supreme Court case discussing this, which is State ex rel. Farley v. Spaulding (WV 1998). It notes that Article 8, Section 6 of the WV Constitution provides that, subject to the approval of the State Supreme Court, the local circuit court has the “authority and power” to establish local rules to govern that particular court, including administratively.
However, at the same time, Article 9, Section 11 of the WV Constitution provides that the local county commission possesses the police powers in their county, including at courthouses. Additionally, State Code (WV Code 7-3-2) mades that the county commission is responsible for providing a “suitable courthouse” at their expense, also possessing the authority and obligation to provide for courthouse security via the local elected sheriff.
Thus, the county sheriff is responsible for courthouse security. However, the court is ultimately in control of its courtrooms, generally speaking.
West Virginia State Trial Court Rule 8 provides that permission of the court is required “in and around the courtrooms” during judicial proceedings, which is granted at the discretion of the presiding judge. Trial Court Rule 8.05 provides that coverage of nonjudicial meetings “in the courtrooms” is also subject to permission, with the “concurrence of the sponsoring group.”
As for the ID laws in West Virginia, there is no state law requiring pedestrians to produce their ID. If there were, generally speaking, it would constitute a violation of the Fourth Amendment where reasonable suspicion was absent. The Fourth Circuit has previously denounced police officers seizing individuals based on non-particularized, general assumptions about suspects, which may be based on irrational, speculative, or otherwise improper fears, biases or falsehoods. (US v. Black 4th Cir. 2013).
Even with reasonable suspicion, the West Virginia Supreme Court of Appeals has held that in a non-traffic investigative detention, that refusal to identify oneself to a law enforcement officer does not, standing alone form the basis for a charge of obstructing a law enforcement officer. (State v. Snrsky WV 2003). “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 (WV 2003).
On the charge of allegedly obstructing an officer, in violation of WV Code § 61-5-17(a), 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 4th Circuit recently held that in West Virginia, “lawful conduct is not sufficient to establish the statutory offense” of obstruction. They noted that 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.” (Hupp v. State Trooper Seth Cook 4th Cir. 2019).
Regarding the right to record, the federal district court in the very jurisdiction where this occurred held on July 13 of this month that there is a clearly established First Amendment right for a citizen record police, noting that federal circuits around the country have found a protected First Amendment right to film matters of public interest, including recording police officers conducting official duties in public. (Gibson v. Goldston SDWV 2022).
Ultimately, a citizen does have a First Amendment right to record their in-person public records request at a county courthouse, so long as they are otherwise engaging in lawful conduct. Doing so cannot be used to detain and forcibly ID the individual based on subjective irrational fears of law enforcement who decide to then conduct an “investigation” of the individual as a “suspicious” person.
A forcible detainment and ID of the individual would be a Fourth Amendment seizure that would be unreasonable, and therefore unlawful.
Moreover, there can be little question that a First Amendment auditor in the process of filming his interactions with public officials is engaging in First Amendment protected activity. To prohibit him from continuing to do so, unless he provides identification, is interference with his First Amendment rights. Subsequently demanding his identification, under threat of arrest for obstruction, as a result of his protected activity is very likely First Amendment retaliation.
I get asked all the time for an update on the Creepy Cops Search case out of Putnam County, West Virginia, where plain-clothes police officers from the sheriff’s department’s “Special Enforcement Unit” were caught on hidden camera literally breaking into my client’s home, sneaking in through the window, searching the inside of the house for non-existent drugs. To see footage of police officers secretly inside someone’s home, where there’s no criminal investigation, or even charges, and where there’s no legal justification, is scary.
This was actually my first Youtube video, uploaded January 15, 2020. The footage shows the drug task force officers searching Dustin Elswick’s house, including examining the ashes of his deceased friend, brilliantly believing them to be drugs. They also ran those ashes through field drug test kits, disabled an exterior surveillance camera, pulled Dustin’s guns out of storage for photographs, and generally ransacked and searched the place.
Until I uploaded the video two and a half years ago, they had no idea they had been caught on video. I first provided the video to federal prosecutors, who in turn provided the video to the FBI for investigation. I didn’t know this at the time, but the FBI agent tasked with the investigation didn’t investigate, but rather just tipped off the officers that I had a video showing them in Dustin’s house. I only found this out much later, after a lawsuit was filed and discovery was exchanged.
A federal civil rights lawsuit was filed on August 20, 2021 against the individual officers, as well as against the county for creating and allowing this drug task force to operate in the first place. The federal court denied Putnam County’s motion to dismiss the pattern and practice (Monell) claim, issuing a memorandum opinion explaining the basis for liability.
Right now the case is set for jury trial in federal court in Huntington, West Virginia on February 22, 2023. There were also two companion case lawsuits filed, on behalf of other plaintiffs, the Johnson family, as well as Mason Dillon, which are also currently pending and set for trial. However, this is the only one that was caught on video. The Dillon case is set for trial on January 18, 2023. The Johnson case is set for trial on January 31, 2023. As of right now they have not been consolidated with the Elswick case.
Discovery has been exchanged, so we now know a lot more. However, depositions have not yet occurred, having been delayed several times due to the defendants’ concerns over a renewed FBI investigation, following the disclosure that the initial FBI investigation was more of a locker room pat on the butt, than an investigation. I suspect that the current FBI investigation could be actually an investigation of the initial FBI investigation, but I have no idea as of right now. What I do know is that we are finally set for depositions of the officers to take place at the end of this month. It will be interesting to find out whether the officers will plead the Fifth Amendment. I honestly hope that they don’t. But either way, I already have their statements from the still-confidential internal investigation. So if they don’t want to answer questions, there are mechanisms in place for me to utilize their prior statements.
What I can tell you is that there is no good explanation here. There are some excuses and some finger-pointing. But there is no great defense here. I believe that it will be determined that some of the officers are more culpable than others. Which is why I hope that at least those officers will be willing to tell the story. It’s an interesting tale that resulted in the end of the Special Enforcement Unit, but not the end of the officers’ employment. Though there’s more to the story that isn’t out yet.
Remember, your home is your castle, and is the most protected place there is under the Fourth Amendment. Any search or seizure by the government that takes place in the home is automatically unconstitutional, by default, unless the government can prove otherwise, in the form of a valid warrant, or valid exception to the warrant requirement. There are only two exceptions recognized by the U.S. Supreme Court: consent and exigent circumstances. Consent must be voluntary. Exigent circumstances require something akin to an emergency situation.
Also, when it comes to consent, as I’ve explained previously, a landlord cannot authorize the government to search the residence of a tenant, as per the Supreme Court in the 1961 case of Chapman v. United States. This also extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room.
These cases tend to speed up towards the very end, which is where we are now. So there will likely be a big update, or updates, very soon. We have a mediation scheduled in August, which is an opportunity for both sides to discuss potential settlement resolutions. In this case, which is a civil rights lawsuit, the potential remedy available to a plaintiff is money. So that’s where money will be discussed, for the most part. If that falls through, we’ll sort it all out at trial.
A video went viral on Tik Tok showing Ring doorbell camera footage of a police officer removing a family’s “F” Joe Biden flag from its display on the front of the home. The homeowner explained in a subsequent video that he had been previously threatened with arrest for good ‘ole disorderly conduct if he continued to display the flag. Is this a violation of the First Amendment? What about the Fourth Amendment?
Back in February, I discussed the “F” the police T-shirt case out of Ohio, where the 6th Circuit issued an opinion denying qualified immunity to police officers sued for arresting a man for “disorderly conduct” for wearing a shirt containing protected First Amendment speech. In that case, the Court made very clear that police academies have to stop teaching young officers that any use of profanity is disorderly conduct. To the contrary, the law is clear that the First Amendment protects the use of profanity, so long as it’s unaccompanied by other conduct that could be construed as disorderly. Thus, the use of the “F word” in and of itself cannot be criminal conduct.
“It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’”
Cohen v. california scotus 1971
Not only can the “F word” be used, but it can be used to verbally criticize the police. Or, in this case, Joe Biden. As the U.S. Supreme Court has held, “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….”
Moreover, expressing criticism of a sitting U.S. President, via use of a flag, is pure First Amendment protected activity. The homeowner mentions in his follow up video that he had researched the town ordinances, and none were applicable, but rather that the mayor lived down the street and held an opposing political ideology. I’ll note that, even if there were a town ordinance, it would be unconstitutional, as a violation of the First Amendment. Now an HOA would be another matter, potentially. Why? Because that’s a private organization, and therefore cannot violate the First Amendment.
Also, what about the Fourth Amendment? As I’ve explained numerous times, the front porch of your home, which would include a flag sticking out of it, is considered part of your home – your castle – for Fourth Amendment purposes. If a police officer walks up and seizes a part of your home – something off of it – is that a seizure? You better believe it. Is it illegal? Illegal in this context means “unreasonable.” Unreasonable, when it comes to your home, is defined with a question: was there a warrant? No, then it’s illegal as a violation of the Fourth Amendment.
Video footage was released from a Delaware man’s Ring Doorbell showing two ATF agents and one Delaware State Police trooper questioning a homeowner about recent firearms purchases. The footage, accompanied by an article at Ammoland.com, explained that the homeowner, in hindsight, felt that his privacy has been invaded and that he felt coerced into cooperation with the officers. The officers explained that they were part of a task force investigating potential straw purchases, which occur when someone buys a firearm on behalf of another person, who is otherwise unable to purchase directly. They had records in-hand, showing the homeowner’s recent purchases, and they said they wanted to verify that the man still had the firearms. Here’s the footage:
It’s clear that the officers had no warrant. But what did they need, if anything, as far as criminal suspicion goes?
The Delaware State Trooper, who by the way, is part of an organization that has close to zero respect for the 2nd Amendment, and which has already been caught maintaining secret lists of gun owners, had this to say about the reason they were there:
“The reason we’re out here is obviously gun violence is at an uptick. We want to make sure – we’ve been having a lot of issues with straw purchases. One of the things, indicators we get is someone making a large gun purchase, and then a lot of times we’ve been there and ‘Oh, those guns got taken.’”
One of the ATF agents had this to say about why they were there:
“It just came up. We came here, look, I’m telling you. There’s an email from the federal side saying can you make sure this guy’s got his guns. If you recently purchased a whole bunch of guns, if we can look at them and just scratch them off…”
Therefore, it appears to be the case that there is no particularized information pertaining to this homeowner, indicating that he may have committed some crime – or even that a crime had been committed in the first place. Basically, he purchased multiple firearms and theoretically, anyone who purchases multiple firearms could potentially have purchased them as straw-conveyances for third parties. Since this is not particularized to the homeowner, it could not form the basis of either reasonable suspicion or probable cause.
However, since the man is in his home, neither reasonable suspicion, nor probable cause, is all that relevant. The officers have two options. They can obtain a search warrant, which would require a finding of probable cause, approved by a judge, in advance, in which case there would need to be particularized facts about the homeowner. Or, they can do what cops call a “knock and talk,” which is what appears to have happened here.
The legal theory is this: so-called consensual encounters don’t implicate the Fourth Amendment in the first place. Basically it’s a conversation with the consent of an individual. There’s no detainment. Cops are free to talk to someone willing to talk with them, just like anyone can. Because doing so doesn’t trigger Fourth Amendment protections, no reasonable suspicion is required, much less probable cause. That’s what the officers were attempting to do here. They clearly had no reasonable suspicion, assuming they weren’t lying (which is an entirely different legal issue).
The homeowner felt coerced. So here’s the legal issue: Would a reasonable, regular person believe that he was not free to terminate the encounter? A person is seized within the meaning of the Fourth Amendment “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” (Terry v. Ohio 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.” Or, in the context of a location the citizen doesn’t want to leave, such as their front porch, the appropriate question is whether that person would feel free to “terminate the encounter.” (Florida v. Bostick 1991).
There could be a number of relevant factors that could determine these questions, such as the number of officers present, their appearance, their actions, as well as their demeanor, such as whether they were non-threatening, and whether they acted as though they suspected the individual of illegal activity, rather than treating the encounter as “routine” in nature.
Here, there were multiple officers. They appeared to make an express attempt to act like they were non-threatening in demeanor and engaged in a routine investigation. But on the other hand, there were three of them, positioned in what some could argue as a threatening manner: spaced out in front of the house, as if they were dealing with a known criminal, as opposed to a law abiding citizen in a nice neighborhood. There was some tactical gear on display and they were obviously armed. Of course, we’d know for sure had the homeowner actually attempted to terminate the encounter.
On the morning of July 20, 2020, rookie Cleveland Police Officer Bailey Gannon shot his partner. Screaming as he fled in panic down a flight of stairs from a man who was neither chasing nor threatening him, Gannon pointed his gun over his head—in the opposite direction he was running— and began firing blindly behind him. One of his bullets hit his partner, whom he had just run right past.
That was the opening paragraph in a federal civil rights lawsuit just filed by Cleveland police officer, Jennifer Kilnapp, against her former partner, as well as the City of Cleveland. So this is a police shooting case – an excessive force case – from one cop against another cop. Can a police officer, who is unintentionally shot by another police officer, sue the government for a civil rights violation? Unfortunately, I can answer that one. But first, here’s a portion of the body cam footage.
The bullet that struck Officer Jennifer Kilnapp ended up lodging in her spine. Investigators almost immediately concluded that it was probably Officer Gannon who had shot his partner. Despite that knowledge, the Cleveland Division of Police and Cuyahoga County Prosecutor’s Office instead charged the suspect, Darryl Borden, with attempted murder, falsely claiming that he shot Kilnapp. These charges would be quietly dropped almost a year later. He still went to prison though. More on that in a minute.
Investigators determined that Officer Gannon lied about the shooting. Despite this, he received no discipline for lying, much less for shooting his partner. Unbelievably, three months after the shooting, the City rated Officer Gannon’s overall performance as “exceeding expectations,” referring to shooting his partner as merely a “minor setback.” This probably has nothing to do with the fact that Gannon’s father is a sergeant with the Cleveland Division of Police. Remember, Officer Gannon was a rookie cop. He entered field patrol as an officer in January of 2020. He shot his partner on July 20, 2020. Before the first year was even out, he was “exceeding expectations.”
In the early hours of July 20, 2020, Kilnapp and Gannon responded to a call on the east side of Cleveland alleging there was an emotionally disturbed man with a gun on the second floor of the boarding home he was staying in. There had been no report of the man shooting at anyone or otherwise being physically violent. Now this is according to the allegations in the lawsuit. The information released publicly at the time by the prosecutor’s office, was that the man had shot through the floor at the 911 caller prior to the law enforcement arrival. Perhaps that was false, which wouldn’t be surprising given everything else we now know about this story.
After learning the man, Darryl Borden, was in a second-floor bathroom, the two officers went upstairs to the hallway. Gannon then took the lead and stood offset from the bathroom door with Kilnapp in a position a few feet behind him. The staircase was between Gannon and Kilnapp. Gannon did not knock and announce their presence as police officers. Gannon did not ask Borden to come out of the bathroom. Still in the bathroom, Borden made no threatening statements to the officers, or in their presence. The lawsuit alleges that, rather than taking other steps, such as deescalation, withdrawing and establishing a perimeter, attempting surveillance of the bathroom, waiting for Borden to come out, or calling for backup or other assistance, Gannon instead decided to open the bathroom door.
According to the lawsuit’s allegations, when Gannon opened the door, Borden was standing there, apparently holding a firearm pointed downwards, at his side in one hand. Borden took no steps towards Gannon, nor made any other threatening gestures or statements. Gannon did not order Borden to drop his weapon. He didn’t order him to do anything. Instead, he panicked, spun back out of the doorway, out of sight of Borden. Borden still took no action.
Officer Gannon then ran away, towards the stairs. Borden didn’t follow him, or even flee, but rather stayed in the bathroom. Officer Kilnapp, Borden’s partner, was standing near the top of the stairs. Gannon bolted down the stairs, screaming as he fled. As he ran, Gannon pointed his gun over his head behind him, in the opposite direction as he was running, and began shooting blindly behind him. One of these bullets hit Kilnapp as she stood near the top of the stairs. Gannon’s body camera footage shows him running away while Kilnapp yells after him, “I’m shot. I’m shot. Don’t leave me.”
EMS rushed Officer Kilnapp to the hospital. Two weeks later, surgeons were able to remove the bullet fragment near her spine. Kilnapp filed the lawsuit on July 13, 2022, which discloses that Gannon never apologized to his partner for shooting her.
The investigation team created several diagrams showing the bullet trajectory that injured Kilnapp. This diagram is an overhead view of the staircase, hallway and bathroom. This shows that one of Gannon’s bullets, marked by a yellow line, was fired through the bathroom wall near the top of the staircase on a slight downward angle, meaning that he must have been holding his gun above his head when he fired, as he was running away.
This diagram shows Officer Kilnapp’s approximate vantage point when Gannon began shooting, as well as the path of Borden’s bullets when he reacted to Gannon opening fire. This shows the investigators’ conclusion that no bullets fired by Borden traveled in the direction of Officer Kilnapp.
Gannon initially claimed to investigators that when he opened the door, Borden was holding a gun in two hands and pointing it at the door. The lawsuit alleges that Gannon’s body cam footage shows his claim to be a lie, and that instead, it records Gannon admitting that he might have shot his partner. The investigation also revealed that Borden didn’t fire any shots until after Gannon began running down the staircase and shooting towards the bathroom.
Actually, if you look at a still-shot of the moment the body cam footage shows the bathroom door open, you can see that Borden’s left arm is pointed away from Gannon. Therefore it was clearly false to claim that both of Borden’s hands were pointed towards the door. To be honest though, I can’t make out what’s going on with the rest of Borden’s body.
Despite having evidence that it was Gannon who shot Kilnapp, a July 31, 2020 press release from the Cuyahoga County Prosecutor’s Office claimed that Borden “fired multiple shots at officers striking Officer Kilnapp.” Those charges would be dismissed around a year later.
So, what ended up happening to Mr. Borden? He was given a seven to ten year prison term by a Cuyahoga County judge for attempted felonious assault of a police officer and using a gun in the crime. In September of 2021, a federal judge tacked on another five years of incarceration for federal firearms related charges, as he was a felon in possession of a firearm in the first place.
Ironically, in March of 2021, the CDP suspended Officer Kilnapp for her involvement in the incident, on the grounds that she forgot to turn on her body camera before entering the house on the night of the shooting. To the contrary, the CDP took no disciplinary action against Gannon for shooting blindly through a wall while running away from a suspect and shooting his partner in the process.
Let’s take a look at the complaint’s legal theories. Here’s the full complaint:
The lawsuit alleges a direct excessive force Fourth Amendment violation by Officer Gannon, as well as supervisory and municipal violations by the City of Cleveland, alleging the existence of an unconstitutional policy of excessive force and training.
A similar incident actually happened in West Virginia back in 2009, and I was involved in some of the litigation. It was a tragic case. There was a vehicle pursuit that ended in multiple police officers surrounding the suspect’s vehicle, with the suspect still at the wheel. Several officers began firing at the driver. One of the bullets ended up hitting and killing a Charleston Police Department officer accidentally – or rather negligently. The officer’s widow sued, which was ultimately unsuccessful. Why?
“The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’…” “In order to be ‘seized’ within the meaning of the Fourth Amendment, one must have been the intended object of physical restraint by a state actor.”
The U.S. Supreme Court has held that, “‘the Fourth Amendment’s specific protection against unreasonable seizures of the person does not, by definition, extend to unintentionally injured ‘bystanders.” (Brower v. County of Inyo 1989; see also Rucker v. Hartford County 4th Cir. 1991). In the Charleston Police Department case, which was Jones v. City of Charleston, from 2012, the Court held that since the colleague police officer wasn’t intentionally shot by the police officer who had fired at a suspect, that no Fourth Amendment seizure could occur. In other words, even a negligent use of a firearm by a police officer can fall short of being legally considered excessive force, assuming the victim was unintentionally shot by the police officer.
As the Judge in that case wrote in the opinion:
Whether it was appropriate for Officer Burford to discharge his weapon without accounting for the location of a fellow officer, and whether his actions in doing so may have been negligent or even reckless are questions that are not before the court. The plaintiff has only alleged violations of the Fourth and Fourteenth Amendments. Because it is undisputed that Officer Burford did not intend to shoot Officer Jones, the Fourth Amendment is not implicated.
Now there could be other theories of potential liability, which is probably the best hope for Officer Kilnapp in this case, as the Judge alluded to in the Jones case. There could be state law claims based on a negligence or recklessness standard. However, it doesn’t appear that any were alleged in the lawsuit. There may be some meat to the argument that Officer Gannon’s actions that day were attributable to training and supervisory issues. It would be probably be a stretch to attribute it to the CPD’s overall use of force policy issues, since Gannon obviously wasn’t following any sane policy if he was running away, shooting blindly behind him through a solid wall.
Sadly, unless the case settles, I don’t see a realistic path to liability. But I hope I’m wrong, because there should be accountability for someone being wrongfully shot by another individual, police officer or not.
Hazelwood, Missouri Police Chief Greg Hall, who had been with his department for 43 years, and who was chair of the St. Louis Area Police Chief’s Association in 2019, was pulled over by another police agency on May 28 for a traffic stop. He was “hammered drunk.” Was he carted off to the jail like you or I would have been? No. He was personally driven home by the police chief of that agency instead. But don’t worry, the colleague police chief promised that, “he and I are going to have a long talk on the way home.” By the way, Chief Hall made $118,000.00 last year. A few days after the traffic stop, he retired. As of an investigative report by the St. Louis Post-Dispatch yesterday, July 14, they confirmed that Chief Hall had not even been charged as of yet. Remember, the stop was on May 28.
O’Fallon Police Department Officer Nathan Dye initiates a traffic stop on a vehicle he later describes as “dodging sniper fire,” referring to excessive weaving on the road. The driver, almost from the very beginning, identifies himself as a the chief of police in Hazelwood. Obviously aware that the body cam is rolling, Officer Dye apologetically initiates field sobriety tests. Chief Hall fails them. Next is the breathalyzer, which results in the chief blowing more than 2 and a half times the legal limit.
Officer Dye’s supervisor arrives. He’s brought up to speed on what’s happened. His first question is whether the stop had been recorded on body cam. The supervisor then expresses disappointment that Officer Dye was recording. “Yeah this is a tough day and age, man, you know, when you have, uh, they insist on all these electronic things and technology,” the sergeant says.
Then O’Fallon Police Department Chief Neske arrives, after being contacted off-camera by Officer Dye and his supervisor. The camera was turned off just before Chief Neske arrived. But another video showed what happened.
So what happened here, is that some animals are more equal than others. This is government corruption. Never forget that police officers are first and foremost, government employees. Agents of your government. They will protect each other. They will utilize protections they have built into the system. However, they will not extend any of those protections to you, the peasant. The only way to root out this cancerous corruption is through public exposure – through video footage and media exposure. Then to a lesser extent, through lawsuits and rare criminal prosecutions. There’s also politics. But that has consistently failed us, and indeed created this problem in the first place.
We saw this illustrated in this video footage. The younger officer, Officer Dye, who made the traffic stop, obviously wants to do the right thing and is making an effort to do the right thing. But look what he’s dealing with. His supervisor, who has clearly been around the block a few times, knows exactly what he’s doing. Question number one: is there video footage. If you wondering whether justice is served by recording as much video footage as possible of our police officers, there’s your answer. It absolutely is. It keeps them honest, when they wouldn’t otherwise be. That’s your government that wants to sneak around and lie to you. But they can’t when they’re caught on video, as here. Then, as if to one-up the wily-old supervisor, the chief himself shows up to the scene, and just bypasses the middleman. He takes the suspect straight out of detainment, and takes him home. But don’t worry…. He’s going to give him a stern talking-to on the way home.
Is this new? No, it’s been happening since the days of Julius Caesar. Government is going to government. That’s what it does. The trick is establishing accountability through public exposure.
Remember, in every interaction between a citizen and a police officer, don’t forget that it’s really an interaction between a citizen and his government. Never forget that, and you won’t have to learn that lesson the hard way.
On July 8, following a 3 week trial, a federal jury convicted three former state-level correctional officers in Hawaii of felony civil rights violations for the physical assault of an inmate under their custody, as well as of charges relate to the subsequent coverup. After the trial, the federal judge immediately ordered the U.S. Marshalls to take the men into custody pending their sentencing hearings. I have the surveillance footage, and it’s pretty bad. I also obtained some of the criminal case documents, including the indictment, jury instructions and jury verdict form, which you can view and download below.
The evidence at trial established that the defendants assaulted the inmate in the prison’s recreation yard. Over the course of two minutes, the defendants attacked the inmate in the head and body while he was lying face-down on the ground. The inmate suffered a broken nose, jaw and eye socket. After the incident, there was a cover up. The officers wrote false reports in which they omitted almost all of the force they had used. When the prison opened an investigation, the defendants met to get their stories straight and brainstorm false excuses they would give for having used force. Ultimately, the Hawaii Department of Public Safety fired all four officers. A fourth officer was convicted prior to trial and testified against the other three.
The indictment alleged two counts for Deprivation of Rights under Color of law, one count of Conspiracy to Obstruct Justice, and three counts of Obstruction by False Report. the indictment also alleged that one of the men, Defendant Taum, obtained a copy of the surveillance video of the assault on the inmate, and met with the other involved officers at the home of one of the officers, and together devised a false cover story that would purport to explain and justify their assault of the inmate. The officers apparently received internal affairs questionnaires, and worked together to apply their false cover story to the questionnaire’s specific questions.
In the use of force report, the officers wrote that they used “brachial stuns and brachial plexus strikes to gain compliance so the inmate could be restrained.” They further wrote that, “reactive use of force was used to gain control and compliance.” However, the indictment alleges that those reports were false because in reality, the officers did not perform “brachial stuns and brachial plexus tie in strikes,” which are techniques taught in their training, but rather kicked and kneed the inmate, punched him in the face, and used hammer-fist strikes to the back of his head, doing so not to “gain control/compliance” as the inmate had already been subdued.
The litigation paperwork filed in the case indicates that there were actually allegations of this inmate being physically assaulted by the officers at two separate times and in two different locations at this jail, hence the two separate counts for Deprivations of Rights, i.e., excessive force. The video only shows the first assault. The second one apparently happening in the holding cell afterwards. Just the fact that they weren’t done with the guy after what we saw in the video . . . is insane.
On the excessive force counts, the jury was instructed that the government had to prove that the defendant correctional officers deprived the inmate of his Eighth Amendment right to be free from cruel and unusual punishment. That means that the inmate was a convicted prisoner. The constitutional right to be free from excessive force falls under different amendments, depending on the logistical status of the victim. For an arrestee, or someone just on the street, it’s the Fourth Amendment. For a pretrial detainee, the courts use the Fourteenth Amendment, which is a slightly more lenient standard for the government. Lastly, for convicted prisoners, they’re stuck with the Eighth Amendment, which is cruel and unusual punishment.
Here’s how cruel and unusual punishment was defined for the jury: Under the Eighth Amendment, a convicted prisoner has the right to be free from “cruel and unusual punishments.” To establish a defendant deprived the prisoner of his Eighth Amendment right, the government must prove the following beyond a reasonable doubt.
1. a defendant used excessive and unnecessary force under all of the circumstances;
2. a defendant acted maliciously and sadistically for the purpose of causing harm, and not in a good faith effort to maintain or restore discipline; and
3. the act or acts of a defendant caused harm to the prisoner.
The Court asked the jurors to consider the following:
1. the extent of the injury suffered;
2. the need to use force;
3. the relationship between the need to use force and the amount of force used;
4. any threat reasonably perceived by a defendant; and
5. any efforts made to temper the severity of a forceful response, such as, if feasible, providing a prior warning or giving an order to comply.
The Court also instructed the jury that, “Correctional officers have a duty to intercede when another correctional officer violates the constitutional rights of a prisoner. A correctional officer who observed another correctional officer using cruel and unusual punishment, had a reasonable opportunity to intervene, and chose not to do so would be responsible for depriving the prisoner of his Eighth Amendment constitutional rights.
This is known as the duty to intervene, or bystander liability, in civil cases. This also applies to police officers in regular Fourth Amendment excessive force cases.
A sentencing date has not been set. The guards each could face up to 20 years in prison for filing a false report alone, as well as 10 years in prison for the deprivation of rights conviction and five years for the conspiracy conviction.
ETA: here are the documents discussed in the video: