Tag Archives: reasonable suspicion

Helpful Cops Pepper Spray Old Guy Hit By 18-Wheeler | Lawsuit Filed

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On the morning of February 1, 2022, 57 year old Benjamin Quarles was running errands in downtown Minden, Louisiana, after dropping off his wife for a medical appointment. She was a dialysis patient. Mr. Quarles is a school bus driver with no criminal record. As he approached an intersection, he stopped at a red light. While stopped, his car was struck from behind by an 18-wheeler dump truck. The impact pushed Mr. Quarles’ car into the intersection. He had violated no criminal or traffic laws.

Mr. Quarles stayed inside his vehicle. Shortly afterwards, two Minden Police Officers arrived at the scene. body cam footage captured what happened. Due to his wife’s condition, Mr. Quarles was apprehensive about the officers’ germs. As the officers approached him, he communicated to the officers that he wanted to keep his distance from them. For cops, this is sort of like rolling up your window most of the way at a traffic stop. They love that. This is a direct affront to their authority in their eyes. They see it as disrespect. Instead of actually communicating, which is what they’re supposed to be doing in these situations, they instead escalate and retaliate.

The officers yelled to Mr. Quarles that he was under arrest and to step out of the car. Mr. Quarles moved his left leg from inside the passenger compartment of the car and placed it on the ground outside the car. He looked at Officer McClaren and asked, “help me out of the car.” The officers refused. Mr. Quarles then, with his foot still outside the car, grabbed his cell phone off the console, before getting out of the car. At that moment, Mr. Quarles was pepper sprayed by Officer Hammontree, and yanked from his car by the two officers. 

Mr. Quarles was forcibly thrown to the ground. Then Officers McClaran and Hammontree left him lying on the ground, handcuffed and injured, with his mask soaked in pepper spray. He was left there on the ground until the ambulance arrived. He was transported to a local hospital emergency room for treatment. The entire time he was in the hospital, Mr. Quarles was guarded by two Minden police officers. How brave of them. Protect and Serve. That’s their motto.  Mr. Quarles was then put in a cage for a period of time, until his brother came and bailed him out. When he got his car back, he found it had been ransacked, presumably because it had been searched by the officers, obviously looking for the hidden cash and drugs. They didn’t find the cash and drugs, but they did apparently find a $30 Circle K gift card, as it was missing from the car after the officers finished with it. 

At the time this happened, Mr. Quarles was the victim of a traffic accident that was someone else’s’ fault. He had committed no crime. The subsequent accident report determined that he did nothing wrong. The two officers never bothered to determine whether Mr. Quarles was injured in the accident. They just escalated and retaliated, due to a perceived disrespect of their non-existent authority. 

There can be no doubt that due to the show of force by the officers, telling him he was under arrest, using force on him, pulling him out of the car, that he was subjected to a warrantless arrest at that point. A warrantless arrest requires probable cause that Mr. Quarles had committed some crime. There was no allegation of any crime having been committed. The officers charged him with a violation of Louisiana’s “Resisting an Officer” statute, i.e., “resisting arrest.” At his initial court appearance on March 2, 2022, that charge was dismissed on the motion of the prosecutor. The charge was most likely dismissed because the officers did not possess any probable cause to believe that Mr. Quarles had committed any crime prior to him being seized. The chicken cannot come before the egg. 

It’s always necessary to resolve the criminal charges before filing a section 1983 civil rights lawsuit. There are several reasons for this. Depending on the circumstances, a conviction of one or more of the criminal charges arising from the incident can bar a successful 1983 suit. For instance, if the claim is for false arrest, meaning a warrantless arrest performed in the absence of probable cause, one wouldn’t want to plead guilty to the facts you’re alleging didn’t exist. It can get complicated, but that’s the general idea. This is one of the first things I generally have to tell people. Sometimes getting rid of the criminal charges is easy; sometimes it’s not. 

In this case, a section 1983 civil lawsuit was filed and was just recently amended. It appears that the government is fighting hard against it. There is a pending motion to dismiss. What should government have done? They should have apologized and compensated for violating the man’s civil rights. If they didn’t have the evidence to even take the criminal case to a trial, they should compensate him. Then there’s the injuries they inflicted on him. They should compensate him for that. Why? Use of excessive force by police officers against an arrestee, or anyone really, is a Fourth Amendment violation. They are liable for damages, assuming they’re not awarded qualified immunity.

At some point there will be a ruling on qualified immunity in this particular case – probably after depositions are taken and there’s testimony for the court to analyze. I’ll try to keep an eye on this one, as I’m curious to see what happens here. I’ll be rooting for Mr. Quarles. 

Client Educates Cops on the Fourth Amendment | They Don’t Listen | He Wins in Court

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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? 

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? 

Here’s the police report narrative:

Here’s the motion to continue the criminal case hearing:

Here’s the motion to dismiss submitted by the prosecutor:

Here’s the footage filmed by the client:

Update: here’s the 911 call audio from the Walmart Karen:

Pregnant Teacher Stopped and Arrested | Officer Disciplined

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From the Fort Worth Report:

Vilmaris Montalvo was on a tight deadline July 30, 2021. A pregnant, Hispanic dual language teacher in Arlington, she took her lunch break to pick up her husband from a Fort Worth hospital following surgery.

After noticing a Fort Worth patrol car following her for several miles, Montalvo pulled over.

Officer Meltdown During Open Carry I.D. Refusal in WV | What Happened in Court

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On February 21, 2018, Putnam County Sheriff’s Office Deputy B.E. Donahoe responded to a complaint relayed from the emergency dispatch center that someone had reported that there was an individual walking down the side of a public road while in possession of a firearm.  The individual was the plaintiff, Michael Walker, who being a victim of epileptic seizures, does not have a driver’s license.  He was headed coyote hunting, and had a rifle strapped over his back, along with a backpack.  Deputy Donahoe brutally insulted Mr. Walker, who was being polite, but insisting that he had committed no crime, and therefore should not be stopped and forced to hand over his ID. Donahoe repeatedly called him a “c_cksucker” while forcibly detaining him and running a criminal background check on him and questioning him as to why he would need an AR-15. The incident was fully captured on video by Mr. Walker.

At the time Deputy Donahoe responded to the scene, he possessed no prior knowledge of Mr. Walker.  All he knew about Mr. Walker is what he observed when he arrived at the scene, which was observing him walking down the side of the road.  He didn’t recall who had called 911, or specifically what the complainant had stated, other than that there was a guy walking down the side of the road with a firearm. Upon arriving at the scene, he observed Mr. Walker walking down the side of the road with a rifle “strapped across his back,” with the muzzle of the gun pointed towards the sky.

Upon arriving at the scene, Mr. Donahoe did not observe Walker committing any criminal activity. Nor was he informed by any other source that any crime had been committed by any individual. Walker was just walking. Donahoe had no indication that Mr. Walker was a person prohibited from possessing a firearm. Donahoe testified that he did not observe Mr. Walker doing anything unsafe with the rifle strapped on his back; nor did he observe the rifle in Mr. Walker’s hands; nor did he observe Mr. Walker acting threatening in any way.  His only reason for stopping Mr. Walker was to find out if he was a prohibited person.

As portrayed by video footage taken by Mr. Walker with his phone, the interaction was not consensual. Donahoe gave Mr. Walker “no choice” in the matter. He told him during the stop that he was not free to leave until he was done with his investigation. Donahoe explained that the only investigation he was undertaking at the time, to which Mr. Walker was forced to submit, was to run Mr. Walker’s criminal history report, in order to determine whether he “was a person that could possess a firearm.” Admittedly, he had no information indicating that Mr. Walker may have been a prohibited person.

The case is over. We lost. Compare the video footage of the encounter with the legal aftermath, from the trial court level, through appeal to the Fourth Circuit, oral arguments, and ending with a deeply flawed published Fourth Circuit opinion. This case demonstrates what I refer to as a Bermuda Triangle of civil rights law….

Here we are following the hearing at the U.S. District Court in Huntington, West Virginia.

The U.S. District Court granted summary judgment for the officer, dismissing the lawsuit filed by Michael Walker. The order essentially created a carve-out for AR-15 style rifles from the usual reasonable suspicion analysis:

Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.

Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.

The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm. See Embody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).

The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. See Deffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).

Together, these facts would form a particularized and objective basis for an investigatory stop.

Here is the full District Court Order that was appealed to the Fourth Circuit:

This was our opening brief to the Fourth Circuit:

Listen to oral arguments from this case at the Fourth Circuit:

Here’s me actually arguing to the Fourth Circuit panel, via my computer, in the bizarro world that was 2021 America:

Here’s the Fourth Circuit Opinion that ensued:

Here is our petition for rehearing en banc, which was denied:

Stopped For Flashing & Handcuffed For Laughing | Unreal WV Traffic Stop

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Isn’t that weird that I just did a video on the issue of whether there’s a constitutionally protected right to flash your lights at oncoming traffic, in order to warn them of an approaching speed trap, and then what do you know, it ends up happening again right here in West Virginia. This brand new exclusive footage you’re about to see however, is the worst of those incidents I think you’ll ever see anywhere on Youtube. Frankly, I’m disgusted by the actions of this deputy with the Nicholas County, West Virginia Sheriff’s Department.

Here’s the citation William was given:

This was Corporal J.D. Ellison with the Nicholas County Sheriff’s Department. His behavior was disgraceful. But I’m also disappointed in the aftermath here. Corporal Ellison shamefully gave this man a ticket for two alleged violations – at least on paper – which were allegedly having an unsigned registration card, which is total garbage, as well as an alleged “special restrictions on lamps,” which was a frivolous charge meant to fabricate the nonexistent crime of warning fellow Americans about government waste, laziness and tyranny. 

Here’s the police report by Cpl. Ellison:

You’re really not going to believe this, but William went to court yesterday in the Magistrate Court of Nicholas County – that’s Summersville, West Virginia. He represented himself. He was being prosecuted by a prosecuting attorney from that county, with the matter presiding before Nicholas County Magistrate Michael Hanks. I’m really shocked to tell you that Magistrate Hanks convicted this man of the alleged crime of “Special Restrictions on Lamps.” He did dismiss the bogus charge of having an unsigned registration card because it’s thankfully not even on the books anymore – which by the way was the offense for which William was placed in handcuffs.

Between the prosecutor and the magistrate, which of those great legal minds thought it was a good idea to convict William of “special restriction on lamps?” Just looking at the statute, which is clearly not meant to apply to this situation, it makes an explicit exception, citing a different statute that allows for flashing lights for the purpose of warning the operators of other vehicles “of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking or passing…, etc.” 

Here’s the prior video I did on flashing lights to warn of a speed trap:

Stay tuned for updates. I’m going to help William….

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

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

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

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

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

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

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

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

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

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

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

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

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

Trespass Arrest of First Amendment Auditor – Meh, Someone Must Own It

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On August 19, 2022, Joshua Gibbons arrived at Aerojet Rocketdyne Corporation in Jonesborough, Tennessee. He sent me a link to his video of him getting arrested shortly afterwards. A few other people submitted this video as well.

The police officer, a deputy with the Washington County Sheriff’s Office, jumped straight into a warrantless arrest here. He needed probable cause to arrest Josh without an arrest warrant. There are three levels of interaction between a police officer and an individual: 

  1. A consensual encounter;
  2. An investigatory detention; and
  3. A warrantless arrest.

Number 1 requires nothing, so long as it’s objectively consensual. Fourth Amendment protections to not apply to consensual encounters. 

An investigatory detention requires reasonable suspicion. Fourth Amendment protections do apply to detentions. They must be reasonable. 

A warrantless arrest requires probable cause. 

Here, the officer appears to have skipped directly to number 3, a warrantless arrest, which requires probable cause. 

What is the basic criminal trespass law in Tennessee? 

State v. Hollingsworth, 944 S.W.2d 625 (Tenn. Crim. App. 1996).

Before an accused can be convicted of criminal trespass, the State of Tennessee must prove beyond a reasonable doubt that (a) the accused entered or remained on the property, or a portion of the property, of another person, and (b) the accused did not have the owner’s effective consent before entering the property. Tenn.Code Ann. § 39-14-405(a)…

The accused’s knowledge that he or she did not have the “effective consent” to enter the property may be inferred from “(1) personal communication to the [accused] by the owner or by someone with apparent authority to act for the owner,” and (2) “[f]encing or other enclosure obviously designed to exclude intruders.” Tenn.Code Ann. § 39-14-405(a)(1) and (2).

State v. Lee (Tenn. Crim. App. 2000).

Knowledge that the person did not have the owner’s effective consent may be inferred where notice against entering or remaining is given by personal communication to the person by the owner. Tenn. Code Ann. § 39-14-405(a)(1).

Was he on public or private property? If he was on private property, did Josh have knowledge that he was on private property without the owner’s consent? As far as the issue over public or private property, more information is needed. With the information given however, we know the following:

Josh subjectively believed he was located within the public right of way. Being right on the edge of the public road, he very well may have been. You’ll notice that there was a fence a little further off the road. Josh was nowhere near that fence. Josh credibly demonstrated to the police officer that he subjectively believed he was on a public right of way, and not trespassing onto a private owner’s land. Secondly, the police officer didn’t know one way or the other whether Josh was within a public right of way, or on private property. Moreover, even if Josh was on public property, the officer admittedly didn’t know who the owner was.

Therefore, there’s a great case to be made that Josh could not have violated Tennessee’s criminal trespassing statute. Even if he was on private property, there’s no evidence that he had the requisite criminal intent to commit trespassing. Additionally, the officer performed almost no investigation prior to his warrantless arrest. Surprisingly he didn’t even bother to request Josh’s ID first. He just arrested him. 

Is There a Right to Flash Lights to Warn Motorists of a Speed Trap? – Can They Stop You?

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Is there a constitutionally protected right to flash your lights at oncoming traffic, in order to warn them of an approaching speed trap? There’s remarkably few rulings out there on this issue, and a quick search reveals very little guidance from the judiciary and the legal community. But that doesn’t mean it isn’t a common occurrence. I hear about it from time-to-time and there’s a few instances out there if it being captured on video. Perhaps my favorite is an old video from the guy they called the Godfather of First Amendment auditors, Jeff Grey.

This occurred in Florida, near Jacksonville, on I-10, and involves a classic Florida speed trap, full of unnecessary government employees who have nothing else better to do than to harass people and flex their egos and authority. Jeff sets the trap with the bait. And the cops can’t resist it. 

Here’s the original video:

What we have here is an acknowledgment that Jeff was subjected to a traffic stop as a sole result of his flashing his lights. There’s no allegation of speeding, seat belt, or other pretext for the stop. Remember: every traffic stop is already an investigative detention, by definition, and therefore reasonable suspicion must be present to justify the invasion of Fourth Amendment protections. Now, reasonable suspicion is usually pretty easy for even the dumbest of police officers to articulate, which encourages them to lie. They just have to say they saw you violate some traffic law. Here, had they known ahead of time who they were dealing with, they probably would have made something else up. But the first thing that popped out was feigned concern about protecting or helping Jeff. They know that’s a lie. Jeff knows that’s a lie. They know that Jeff knows that’s a lie.

If this were true, there would be no Fourth Amendment justification to continue to detain Jeff. However, the footage clearly shows that they indeed continue to detain him. What likely happens is that the officers now go back to their police cruisers, and discuss the situation. Now they’re aware that Jeff was filming them. For police officers who were already willing to lie about the reason they pulled Jeff over, this could be a problem. As you’ll see, their strategy is to stop the recording. But Jeff refuses, calling their bluff.

Even now in 2022, there’s still no clear federal law on the issue on whether there’s a federally protected First Amended right to warn oncoming traffic about a speed trap. But there’s a wealth of clearly established law on the right not to be detained by the police in the absence of reasonable suspicion. If the officers in Jeff’s video had been honest about the reason they were pulling Jeff over, and if they were able to point to a Florida statute he was violating, they may have been justified in their actions, or at the very least entitled to qualified immunity. However, they basically admitted that they pulled him over in retaliation for warning other motorists, without bothering even to lie about a pretextual reason for doing so, thereafter repeatedly trying to intimidate him into turning off his camera.

There are no Supreme Court cases on this. There are no federal appellate cases, to my knowledge. There are only a couple of U.S. District Court opinions, and a couple of state circuit court opinions. There was a 2019 memorandum opinion from the U.S. District Court for the Western District of Wisconsin holding that a policy and practice of stopping, detaining, and citing drivers who flash their headlights to warn oncoming drivers of a speed trap violates his right to free speech under the First Amendment. This was Obriecht v. Splinter.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” It protects conduct, symbols, and non-verbal communication that express or convey a particularized message reasonably understood by viewers. Texas v. Johnson, 491 U.S. 397, 404-06 (1989). Flashing headlights could easily be placed into the category of expressive conduct. In the Obriecht v. Splinter case, this point was conceded by the state. However, even expressive conduct may be regulate by the government. For example, speech that incites or produces “imminent lawless action,” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), or is integral to criminal conduct, such as fighting words, threats, and solicitations, United States v. White, 610 F.3d 956, 960 (7th Cir. 2010), is not protected by the First Amendment. 

Another similar case from the U.S. District Court for the Eastern District of Missouri held in 2014 that this conduct was entitled to protection under the First Amendment. (Elli v. City of Ellisville, Mo). At least two state circuit courts have found that drivers have a constitutional right to flash their headlights. (State of Oregon v. Hill (2014); State v. Walker (Tenn. 2003)).

The problem with the lack of precedent on this issue leads to a big problem for potential plaintiffs: qualified immunity. The standard for qualified immunity requires establishing that the police officer violated clearly established law. Where there is almost no established case law, that’s going to be a tough task. 

However, as we saw from Jeff’s video, if police are going to pull people over for flashing their lights at other motorists, they need to be honest about what they’re doing, and identify a state or local statute they allege is violated by the relevant conduct. Then, the victim of that stop can mount a First Amendment challenge. This is how the law will become clearly established. At the same time, if they’re not being honest, only video footage is going to protect the motorist from pre-textual lies, which if documented, will establish liability for a Fourth Amendment violation, with no good argument for qualified immunity. 

Video Shows Teen Arrested Waiting For His Dad – Court Denies Qualified Immunity

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In 2019, on a rainy April night in Sterling Heights, Michigan, 18- year-old Logan Davis had just gotten off work at a sandwich shop and was waiting under a nearby awning for his dad to pick him up and drive him home. A few minutes later, Davis ended up hand-cuffed in the back of a Sterling Heights police cruiser, having been forcibly taken to the ground and arrested for loitering. Davis subsequently sued the City of Sterling Heights and Officer Jeremy Walleman for unlawful arrest in federal court.

Recently, the federal court issued a memorandum opinion denying Officer Walleman qualified immunity. So we have both a video of what happened, and the subsequent opinion from a federal court after examining the video and sworn deposition testimony.

Here’s the Video:

And here’s the Order:

As I’ve explained many times before, you have stronger Fourth Amendment protections as a pedestrian, as opposed to an occupant of a vehicle. A warrantless arrest, like the one at issue here, is reasonable under the Fourth Amendment if supported by “probable cause to believe that a criminal offense has been or is being committed.” An officer has probable cause “only when he discovers reasonably reliable information” that that an individual has committed or is committing a crime. 

Where an officer lacks probable cause but possesses a reasonable and articulable suspicion that a person has been involved in criminal activity, he or she may conduct an investigative “Terry” stop and briefly detain that person to investigate the circumstances. During a Terry stop, an officer may request that a suspect identify him or herself, and the suspect does not have a Fourth Amendment right to refuse the request. Additionally, a state may criminalize refusal to provide identification during a Terry stop. 

Section 35-17 of the Sterling Heights’ City Code of Ordinances prohibits loitering and provides that prior to making an arrest for loitering, the officer must provide the individual with an opportunity to dispel any concern or alarm – which can be accomplished by the individual identifying themselves and providing a reason for their presence. 

Section 35-19(B)(4) of the City Code provides that it’s a violation to fail to produce identification upon the request of an officer who is investigating possible unlawful conduct. 

If Officer Walleman had reasonable suspicion to investigate Davis for loitering under § 35-17, he could lawfully order Davis to produce identification then, under § 35-19(B)(4), arrest him if he refused. To conduct an investigatory stop, reasonable suspicion requires that an officer have more than a hunch—they must possess a particularized and objective basis for suspecting the individual of criminal activity. Such a determination of probable cause or reasonable suspicion must be based on the totality of circumstances, considering “both the inculpatory and exculpatory evidence”— that is, an officer “cannot simply turn a blind eye toward evidence favorable to the accused,” nor “ignore information which becomes available in the course of routine investigations.” 

In denying qualified immunity to Officer Walleman, the federal court held that, even if reasonable suspicion to investigate Davis for loitering existed early in the encounter—and it is not clear that it did—any reasonable suspicion, even arguable reasonable suspicion, was dispelled when Davis explained to Officer Walleman why he was standing where he was and showed Officer Walleman his Firehouse Subs shirt and badge. After that point, a jury could conclude, no reasonable officer would believe they had a justified suspicion of unlawful loitering, and without such a basis, Officer Walleman no longer had the legal authority to demand Davis’ identification and arrest him if he refused. 

The Court pointed out that Davis was standing near Firehouse Subs, wearing a Firehouse Subs shirt, which he showed to the officer, and that more specifically, he was standing under the Dickey’s BBQ doors because there was an awning – and it was raining. He is observed on the video not acting suspiciously – not peering in windows, but just waiting.

It always comes down to this though: that police officers can’t seem to do anything, or talk to anybody, without forcibly demanding an ID from people. If people refuse, it becomes time to teach a lesson about the authority of government – a power trip. However, two can play at that game. Now a jury gets to decide whether government did have that authority. Perhaps it would be easier to just be a polite public servant and use common sense.