SWAT Style Entry for Scary Crime of No Building Permit

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.

UPDATE 8/2/22:

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:

The “Inspection Warrant:

The underlying “affidavit”:

Greenbrier County First Amendment Audit Video

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. 

Update on My Creepy Cops Search Case of Putnam County WV

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.

Police Caught on Doorbell Video Removing FJB Flag

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.

ATF Agents Show Up at the Door to Check Firearms Purchases

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.

WV Trooper Walks in House and Demands to be Sued

This morning I received multiple links and copies of this video that’s been circulating, showing a West Virginia State Trooper, in what appears to be inside a family’s home without a warrant. Apparently it was originally posted to Tik Tok, and then removed for some reason. It appears to involve a police response to a church traffic cone, which resulted in the homeowner apparently banging on the church’s door at some point. This trooper shows up, walks in the guy’s home, admittedly without a warrant, and without permission. Then the trooper makes a move on the phone, followed by some sort of altercation at the end. Here’s the video, then I’ll address some legal issues which I see:

Okay, to be clear, I know nothing about this situation, other than what is apparent from the video. So what do we know? The purpose for the officer’s presence appears to be for something relatively minor. A dispute of some sort between this guy and a church. We also know that there is no warrant. The officer claims that he was justified to enter and remain inside the man’s home due to his subjective concern that the guy might shoot him. We’re not told what this concern is based on, other than any individual could theoretically shoot anyone at any given moment. We also know that the guy is not in the home with the homeowner’s permission. That much is is said twice during the video, by my count. Also, we see that there appears to have been some sort of use of force by the trooper towards the end of the video. He definitely appears to strike the camera in some way. Whether or not the guy holding the camera was struck or not, we can’t see. But it does sound that way.

So here are some of the questions presented. Is this officer correct that he can just walk in somebody’s home under these circumstances, and remain there? Let’s go over the basics of how the Fourth Amendment applies to the home. 

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.” U.S. Const. amend. IV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States (SCOTUS 1967). “At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States (SCOTUS 2001).

Inside the home: searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal as the default rule, according to the Fourth Amendment. Outside the home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.” Thus no warrant is required outside the home, unless a reasonable expectation of privacy exists. Searches or seizures inside a home require a warrant, or a valid exception.

The main exception is consent. A search conducted pursuant to a valid consent is constitutionally permissible. Voluntariness is the standard. Was the defendant’s will overborne? Voluntariness of the consent depends on the totality of the circumstances. Schneckloth v. Bustamonte (SCOTUS 1973). Officers may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs. Kentucky v. King (SCOTUS 2011).

The only other valid exception is exigent circumstances. Law enforcement may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with injury. This is known as “exigent circumstances,” and generally refers to some emergency situation. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. This is an objective rule. The officers’ subjective motivation is irrelevant. An action is “reasonable” under the Fourth Amendment regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. Brigham City v. Stuart (SCOTUS 2006).

Exigent circumstances can also apply to allow an entry under some limited circumstances to prevent the imminent destruction of evidence. Minnesota v. Olson (1990), or if the officer is in hot pursuit of a fleeing suspect. United States v. Santana (SCOTUS 1976). However, also keep in mind that police cannot create their own exigent circumstances by engaging or threatening to engage in conduct that violates the Fourth Amendment. Their conduct must be reasonable. Kentucky v. King (SCOTUS 2011). Lastly, a home’s front porch, including the area immediately surrounding the house, also enjoys protection as part of the home itself. Where information is gathered by physically entering and occupying that area without consent, it’s a search of the home. 

But is the Fourth Amendment triggered by just entering a home, or even standing on the porch? Understand that you have “consensual encounters,” and then you have Fourth Amendment searches or seizures. Consensual encounters do not trigger the Fourth Amendment.

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.” Terry v. Ohio (SCOTUS 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.” Terry v. Ohio; also United States v. Gray (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 (SCOTUS 1991).

A traffic stop, for instance, is always a seizure under the Fourth Amendment. Entering a home to engage in conduct not explicitly or implicitly permitted by the homeowner, is likewise a seizure under the Fourth Amendment. Florida v. Jardines (SCOTUS 2013).

Here, if there was no warrant for this state trooper to engage in a search or seizure inside the home, his doing so was presumptively unconstitutional, as a violation of the Fourth Amendment. He clearly did not have consent to be inside the home. It was evident, and apparently undisputed in the video, that the officer entered without permission and wasn’t welcome. It was also apparent that the officer didn’t care. Thus without consent, entering and occupying the home against the will of the homeowner, a Fourth Amendment seizure occurs that is preemptively unconstitutional. 

Don’t forget that he also seizes the camera recording him, which is perhaps a seizure of the homeowner himself, along with the footage that was being recorded. That very well may implicate the First Amendment as well, as you have a right to record the police inside your home, whether this officer, who also ironically says he is also recording, likes it or not. 

But what about exigent circumstances? The officer implies that he’s relying on exigent circumstances – that he followed the homeowner into the house, worried that he was going to be shot by him. He provides no details supporting this alleged concern. I’m skeptical that there’s any basis for this. He can’t call it hot pursuit of a fleeing suspect, because the guy doesn’t appear to have been under arrest.

This is where the officer’s body cam footage, if it exists, which it appears to from the visible camera on his abdomen, would come in handy. I’d also like to review the 911 records and audio, in order to fully understand the facts. It seems a stretch to me to justify exigent circumstances, based on what we see in the video. If he was truly in hot pursuit, he would have seized the guy immediately and taken him into custody, rather than walk in the house and do more of a knock and talk conversation. Which by definition isn’t supposed to take place in the guy’s living room. I’m sure there’s quite a bit of case law on point to this situation, but this is all just generally speaking, without having researched this scenario. There doesn’t appear to be an emergency situation. No medical emergency. No indication that someone’s flushing cocaine down the toilet. No baby choking, and so on. 

So to answer your questions, it looks pretty bad to me, and I wouldn’t doubt it if this trooper might get his wish to be sued, assuming the homeowner wanted to do so. I also wouldn’t doubt it if disciplinary action is taken, given the fact that the video is now out there. However, more information is needed to evaluate his likely only avenue of defense – exigent circumstances. Just my two cents. I’ll provide an update if I learn more about it. 

Looks like we’re going to jury trial in the Family Court Judge Case

Update on the Family Court Judge Search Case: It was over two years ago – March 10, 2020 – when I uploaded a video on what was then my fairly new Youtube channel, showing the footage depicting a West Virginia Family Court Judge searching my client’s home. The judge ended up being charged with judicial disciplinary violations, which went all the way to the State Supreme Court, ending in a written censure to the judge, describing the search as serious misconduct, which was not a judicial activity authorized under state law. A federal Section 1983 civil rights lawsuit was filed, which I’ve documented extensively, and which I’ve spent hours upon hours litigating.

Today we had a pretrial conference in federal court and I want to give a quick update on where we stand. It looks like great news to me. It sounds like the Court has given the greenlight to a jury trial beginning on the 19th of this month. The Court has yet to rule on the pending issues surrounding the defendant judge’s assertion of judicial immunity. However, it noted that a ruling would be imminent – likely early next week. This forthcoming opinion will be extremely important in defining the parameters of judicial immunity, as these cases are extremely rare and difficult.

Be on the lookout. There will surely be an update on Tuesday or Wednesday of next week with the details of the Court’s ruling. I believe it’s going to come down to the fact that the State Supreme Court has already spoken on the judge’s conduct in this particular situation. The law of judicial immunity requires the Court to look at the nature of the activity, rather than the job title of the defendant. The State Supreme Court has already issued a final adjudication of the fact that judges in West Virginia do not engage in searches; that searches are an executive law enforcement function, and that the defendant doing so in this particular case is “serious misconduct” and an “egregious” misuse of power.

Lastly, the law enforcement defendants are still in the case, both as individual defendants, as well as in the Monell Claim alleging a 20 year practice and policy of Family Court judicial searches, which according to the deposition testimony of the defendant officers, continues to this day.

Charges Dropped in the Mount Hope PD Traffic Stop Case

This week, following public release of the footage showing the arrest of Brian Beckett by Officer Aaron Shrewsbury, of the Mount Hope WV Police Department, the prosecutor on the case filed a motion requesting dismissal of all of the charges, which was granted by the Court. The pending charges of obstruction, disorderly conduct, speeding, and reckless driving were all dismissed and Mr. Beckett was released from bond.

The prosecutor noted in his motion that, “A review of the evidence does not support prosecution of the case.”

This is great news. Many thanks to Mr. Beckett’s criminal defense attorney on the case, Jody Wooten, for a successful conclusion. This doesn’t automatically create civil liability in a federal civil rights lawsuit, but it does foreclose the defense from using the criminal charges, or any criminal conviction, against us in a civil lawsuit. It was also the right thing to do. Our investigation continues in the meantime, both in regards to this incident, as well as into the Nathan Nelson case, where my client had his jaw fractured in two places by the same police officer. Many questions still remain, and information received is still being examined and sorted out.

One of the interesting things I’ve learned is that the police department in this tiny West Virginia town apparently takes up around 50% of the town’s budget. I’ve received lots of tips from credible sources about multiple allegations of corruption surrounding this. So I’ll be taking a deep dive into these issues.

Here’s the dismissal motion and ensuing orders from the Court:

Mount Hope WV Officer Part 2 – Breaks a Kid’s Jaw and Abandons Him in Someone Else’s Cruiser

You may have seen the video posted last week about Mount Hope, WV, police department officer Aaron Shrewsbury. Since the video was posted, I’ve received a lot of information from the public, including from other police officers. That’s always an indication, in my experience and opinion, that there’s a real problem there. I was told today by credible sources that Officer Shrewsbury has now been suspended with pay. I have not received verification of this as of yet, however. As you will see below, his supervisor / Chief of Police, had already signed off on the use of force I’m about to discuss, so hopefully he’s not in charge of the internal investigation…. In the video about what happened to Mr. Beckett, I mentioned that kid from Ohio who had his own encounter with Officer Shrewsbury last year. Let me tell you more. 

On August 15, 2021, several police agencies responded to a 911 call from Ace Adventures Complex, a vacation and white water rafting facility located in Minden, Fayette County, West Virginia. There was a verbal altercation that took place at the complex. 20 year old Nathan Nelson, from Ohio, had been visiting his sister, who worked at Ace Adventures Complex. At some point they became involved in some sort of altercation or argument involving multiple other individuals.

Several police agencies arrived, including Officer Shrewsbury from the Mount Hope Police Department. Marijuana was found in the car belonging to Nathan and his sister. Officer Shrewsbury arrested Nathan and placed him in handcuffs. 

According to Shrewsbury’s subsequent police report, he handcuffed Nathan and escorted him to a police cruiser. While standing beside the cruiser, nathan allegedly became angry and asked, “why he was fu&cking being arrested.” Shrewsbury then asked him to stop swearing, and then advised him he was being arrested for disorderly conduct and possession of a controlled substance. Nathan responded, “this was fucking bullshit,” to which Shrewsbury responded, “yeah it is,” and that, “I wasn’t knowledgeable about how things were done in Ohio where he was from, but in West Virginia, possessing marijuana and other illegal and dangerous drugs, using profanity in public and fighting in the streets definitely are all illegal here.” 

Shrewsbury then wrote in his report that, “I turned away from the male subject briefly to get an Oak Hill officers’ attention to unlock the police vehicle, so I could place the male subject safely inside of it,” but that “As I turned back to the male subject, he turned his head toward me and pursed his lips while making a noise as if he were clearing his throat of flem and filling his mouth with it and sputum. He then moved his head towards me in a motion that made me believe that he was going to spit on me. Observing this, I then rapidly used a straight arm with an open palm to divert the male subject’s head away from me, making physical contact with the left side of his head and facial area. The maneuver was abrupt, but did not cause him to fall to the ground.

By all means, review the pertinent portions of Officer Shrewsbury’s report for yourself:

After the strike to Nathan’s face, Shrewsbury then placed Nathan, still handcuffed, in the rear of the Oak Hill police cruiser, essentially abandoning him there for the Oak Hill officers to find.

Ultimately, Nathan was only charged with misdemeanor possession of marijuana. Nathan maintains that he wasn’t resisting Shrewsbury in any way. And contrary to what Officer Shrewsbury wrote in his police report, Nathan maintains that it went down a little differently. Nathan says that he was told by Shrewsbury, “if you don’t shut up, I’m gonna take these handcuffs off and do one of those old West Virginia ass whoopins.” After apparently not liking Nathan’s response, Nathan states that Officer Shrewsbury, who started to walk away, quickly turned around and punched him in the face with a close fist right hook, with Nathan still handcuffed and not physically resisting in any way.

I discussed in the previous video about Officer Shrewsbury that he had been decertified as a police officer while working at the Fayette County Sheriff’s Office in 2015, for lying and dishonesty as a police officer. The next year, Shrewsbury ran for the position of Magistrate Judge in Fayette County, touting his law enforcement experience – not mentioning his decertification – and also bragging that he was a professional boxer.

Excerpt, Fayette Magistrate Division 2 and 3 Candidates, May 8, 2016, The Register-Herald, https://www.register-herald.com/news/fayette-magistrate-division-2-and-3-candidates/article_ef029a2c-fd78-5bed-9473-88b362722a2c.html

A review of old social media also reveals at least one past boxing photo of Officer Shrewsbury.

The physical trauma inflicted to Nathan corroborates that, and corroborates Nathan’s recollection of being punched with a closed-fist right hook, rather than the word salad written by Officer Shrewsbury.

Nathan was discovered by other police officers, sitting in the back of a police cruiser, covered with blood, with his tooth laying in his lap, his shirt covered with blood, suffering in severe pain. These other officers took Nathan into their custody and transported him to a nearby hospital, where he underwent emergency treatment. Nathan’s jaw was broken in two different places. He was going to require immediate surgery. He ended up being transported all the way back to Ohio to a specialist surgeon at Ohio State University, for the necessary surgery on his jaw. 

Excerpts of Nathan’s medical records from Plateau Medical Center Emergency Room:

So you have a 20 year old kid, handcuffed, charged only with misdemeanor possession of marijuana, punched in the face by a police officer claiming to have experience as a professional boxer, knocking out at least one tooth, and fracturing his jaw in two places, requiring transport by ambulance, all the way to Ohio for surgery, where he spent four days hospitalized.

One of the police officers from the nearby Oak Hill Police Department who discovered Nathan injured and bleeding in the back of the police cruiser, and who transported him to the emergency room of the nearby hospital, noted in her report that she didn’t even know who had arrested and handcuffed Nathan, even identifying the design of the handcuffs she removed from him at the hospital. 

Excerpt of the police report by OHPD Officer Kennedy.

Another Oak Hill officer noted in his report that he was “made aware that an officer had punched the male” [arrestee] and placed him in into the other Oak Hill officer’s car, basically abandoning him there with no information or documentation.

Excerpt of the police report by OHPD Officer Jones.

Laughably, in his subsequent written police report, Officer Shrewsbury filled out a use of force report that contained almost no information about the force that he used, or the reason for using it. Mind you, I don’t believe his report even alleged that Nathan spit at him, just that he allegedly heard sounds that he alleges were leading up to a spit. Importantly, Nathan wasn’t charged with spitting, or attempting to spit on any police officer. 

Officer Shrewsbury’s Use of Force Report, dated August 16, 2021, which was even signed by his supervisor, the Chief of Police, Jack Brown.

Police use of force incidents are judged by the federal courts using the Graham Factors, which are going to easily show that this was an unreasonable and excessive use of force. Here you have an individual charged with an extremely minor crime, who is handcuffed, who is not physically resisting, but rather only running his mouth, expressing criticism, who is punched in the face with tremendous force, by a large police officer who claims to be a boxer. 

While that police officer claims he heard pre-spit sounds, that same police officer has already been decertified for lying as a police officer. Thus, it’s probably for the best if Officer Shrewsbury is suspended. All of this begs the question about why the town of Mount Hope, West Virginia hired him in the first place, and why they appear to have let him escape real supervision. 

Make sure you subscribe and follow-along to hear what’s happening next, because we’re learning more by the day, and lawsuits are looming.

Local Town Victimizes Innocent Motorists with Officer Perjury Pottymouth

On January 31, 2022, Brian Beckett was traveling home from work, driving Northbound on WV Route 19 in Mount Hope, West Virginia. It was around 5:45 p.m. He ended up getting pulled over for speeding by Mount Hope Police Department officer Aaron Shrewsbury. Instead of getting a speeding ticket, or even a warning, Mr. Beckett ended up being pulled out of his car and arrested for obstructing an officer, disorderly conduct, speeding, and reckless driving.

Mr. Beckett was driving home from an industrial work site in a nearby county. He’s not a criminal – not out selling drugs or committing crimes – just trying to drive down the road. He had a dash camera recording, which appears to show that he was driving safely. It doesn’t indicate his speed, but that’s not what this video is about. Officer Shrewsbury would subsequently swear under oath in his criminal complaint affidavit, seeking court authorization for Mr. Beckett’s arrest, that not only did he radar Mr. Beckett speeding, but that “as I was catching up to the vehicle, I noticed the vehicle weaving through traffic recklessly” but that “I was able to pull behind the vehicle and get it stopped….” Take a look at the dash cam footage from Mr. Beckett’s car just prior to the traffic stop, and see if that statement appears to you to be true.

Mr. Beckett used his personal cell phone to record his interaction with Officer Shrewsbury. Despite the officer stopping the video and attempting to delete the recording from Mr. Beckett’s phone, the officer couldn’t access it. During arrest processing, the officer was placing the phone in front of Mr. Beckett’s face in order to attempt to unlock the phone using facial recognition, to no avail. So he was unable to delete this footage, which shows the encounter, what led to Mr. Beckett’s arrest, and the fact that Officer Shrewsbury stopped the recording.

So Officer Shrewsbury immediately arrested Mr. Beckett for obstruction for not rolling his window down all the way. He never bothered to ask Mr. Beckett for his license, registration, proof of insurance, or even his name. He just demanded that the window be rolled down all the way, not providing a reason – just because he demanded it. Then immediately removed him from the car and arrested him. The officer never even identified himself, the reason he pulled him over, or explained any legitimate reason he required the window rolled down. 

In the subsequent criminal complaint, no allegation was made or charged that it is illegal in West Virginia to not roll one’s window down completely during a traffic stop. He was merely charged with obstruction. Under West Virginia’s obstruction statute, the plain language of the statute establishes that a person is guilty of obstruction when he, “by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity.” The Fourth Circuit recently examined the statute:

As West Virginia’s high court has “succinct[ly]” explained, to secure a conviction under section 61-5-17(a), the State must show “forcible or illegal conduct that interferes with a police officer’s discharge of official duties.” State v. Davis, 229 W.Va. 695, 735 S.E.2d 570, 573 (2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611 (2008) ). Because conduct can obstruct an officer if it is either forcible or illegal, a person may be guilty of obstruction “whether or not force be actually present.” Johnson , 59 S.E.2d at 487. However, where “force is not involved to effect an obstruction,” the resulting obstruction itself is insufficient to establish the illegality required by section 61-5-17. Carney , 663 S.E.2d at 611. That is, when force is not used, obstruction lies only where an illegal act is performed. This is because “lawful conduct is not sufficient to establish the statutory offense.” Id. 

Of particular relevance to our inquiry here, West Virginia courts have held that “when done in an orderly manner, merely questioning or remonstrating with an officer while he or she is performing his or her duty, does not ordinarily constitute the offense of obstructing an officer.” State v. Srnsky, 213 W.Va. 412, 582 S.E.2d 859, 867 (2003) (quoting State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 373 S.E.2d 484, 486 (W. Va. 1988)). 

Hupp v. State Trooper Seth Cook, 931 F.3d 307 (4th Cir. 2019).

At no point did Mr. Beckett refuse to participate in the traffic stop being conducted by Officer Shrewsbury. He rolled the window down partially. He was clearly visible through the non-tinted glass, his hands were visible and non-threatening; he hadn’t refused to provide his license, registration and proof of insurance. He hadn’t refused to identify himself, or to do any act he was required by law to perform. Moreover, I’m aware of no State law, nor did Officer Shrewsbury identify one in the charging documents, requiring motorists who are subjected to traffic stops in West Virginia to roll their windows completely down as a matter of routine. 

It appears that this arrest occurred in the absence of probable cause, and therefore in violation of the Fourth Amendment. But it didn’t stop there. 

Officer Shrewsbury also alleged that, after pulling Mr. Beckett from the vehicle and placing him in handcuffs, while walking Mr. Beckett to the police cruiser, that Mr. Beckett remarked that “this was bullshit.” Officer Shrewsbury wrote in his criminal complaint affidavit that, “I then informed Mr. Beckett to stop cussing and placed him inside my vehicle.”

Under West Virginia’s disorderly conduct statute, no probable cause could exist for a warrantless arrest for disorderly conduct by virtue of saying, “this was bullshit.” First of all, if that were possible, such would be a First Amendment violation, as the West Virginia Supreme Court warned law enforcement back ini 1988:

“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”  

State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 773-74 373 S.E.2d 484, 486-87 (1988).

First Amendment issues aside, merely using bad language in the presence of a supposedly-sensitive police officer, cannot violate West Virginia’s disorderly conduct statute. Not that I expect law enforcement to actually learn the law, but there is a 2015 West Virginia Supreme Court case directly on point. In Maston v. Wagner, 781 S.E.2d 936 (W. Va. 2015), the West Virginia Supreme Court held specifically that the WV disorderly conduct statute, while potentially criminalizing profane language under some circumstances, in public and in front of other people who complain, does not criminalize profane language used by a citizen during their interaction with law enforcement.

If that’s not enough, the U.S. Supreme Court has sent a clear message through its rulings, such as in Cohen v. California (1971) and Lewis v. City of New Orleans (1974) that free speech, however offensive or controversial to sensitive virgin-eared police officers, is afforded a high level of protection. 

Officer Shrewsbury didn’t even allege in his criminal complaint affidavit that a third party had overheard Mr. Beckett’s alleged use of the word bullshit, or complained about it. Nevertheless, the local magistrate signed off on it, approving it as probable cause under West Virginia law. Which is a disgrace, given the fact that the State Supreme Court clearly warned otherwise about seven years earlier.

Also a disgrace to our Constitution, is the fact that these charges are still pending against Mr. Beckett. The individual police officers like this you see in these videos never do it alone. Behind the scenes are politicians and prosecutors. 

In fact, the politicians and prosecutors behind the scenes of this Officer Aaron Shrewsbury should explain why this police officer is allowed to victimize citizens in the first place, given the fact that he had previously lost his certification to be a police officer in West Virginia while working at the Fayette County Sheriff’s Office for “Dishonesty – willful falsification of information.” No, unfortunately I’m not making that up. That’s right – the same police officer who filed false and incorrect charges against Mr. Beckett, has somehow in the past managed to screw up his job so badly that he lost his certification to be a police officer, for lying as a police officer. Truly unbelievable. But also not unbelievable. 

Also not surprisingly, other complaints have surfaced about Officer Shrewbury. This one may sound familiar. August 15, 2021, a few months before Mr. Beckett’s incident, a 20 year old kid from Ohio was driving through this same area, and ends up getting arrested by Officer Shrewsbury for misdemeanor possession of marijuana. And listen to this, the kid says, according to Shrewsbury’s report, “this is fucking bullshit.” That incident ended in Officer Shrewsbury punching that kid in the face, and then placing him handcuffed, in the back of a police cruiser, with a blood covered face and broken jaw, which required surgery to fix. 

The kid was finally able to get help from another police officer at the scene. He said hey, I need help. When asked why he needed help, the kid said, “my tooth is in my lap.” The officer then looked at him and saw a large amount of blood coming from his face and on his shirt. That officer then promptly took the kid to the hospital, which began a long period of medical treatment to fix the damage caused by Officer Shrewsbury.

More about this incident shortly, but the question begs, why do the politicians and prosecutors turn this man loose on the public. You can see from this video the way in which he appears to hold regular citizens in contempt, treating them like garbage to be discarded.

If you have any information about Officer Shrewsbury, who as far as I know is still out there interacting with the public, please reach out.