From the Fort Worth Report:
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….
So many police encounters we see in the news, or on Youtube, were completely unnecessary. Some may say those are just circumstances where “A-holes collide,” but they need to keep in mind that we’re not talking about random people encountering each other, but rather an interaction between a citizen and that citizen’s government. These are not equal positions. Hot-headed police officers who primarily enforce their ego and authority, tend to escalate situations unnecessarily, creating crime out of thin air and endangering the safety of everyone. A little bit of common sense and a little bit of kindness would really go a long way.
Recently, a federal lawsuit was filed in Kentucky and the body cam footage was released, showing a young pregnant woman confronted by a police officer, in her own driveway, over a busted taillight. Take a look and then I’ll give you my thoughts about whether her constitutional rights were violated. Can the police just pull in your driveway after you park and detain you in your yard, much less use force on you?
According to the lawsuit, the officer, McCraken County, Kentucky Deputy Jon Hayden threatened to tase this 24 year old pregnant woman, Elayshia Boey. He then “face planted” her into a cruiser, pinned her to the ground, with his knee on her back, holding her down with the full weight of his body. She was six months pregnant at the time.
In his citation, Deputy Hayden wrote that after Boey refused to identify herself, he attempted to arrest her by grabbing her writ to “gain control.” However, the body cam footage showed that after the deputy asked her to identify herself, she gave her name. The deputy further wrote in his report that “after a brief struggle, Boey was then placed on the ground by physical force to gain control and compliance.” Boey and her mother were both arrested and charged with felony assault of a police officer. Those charges are apparently still pending. After a complaint was received, McCracken County Sheriff Ryan Norman said that the sheriff’s department had investigated itself and concluded that none of their policies or procedures were violated. He apparently didn’t mention whether any constitutional protections were violated.
A few minutes later, after both women had been arrested, Hayden puts his body camera back on. His audio shuts off twice when he explains to other deputies what happened. Later, Deputy Hayden’s conversation with the jail nurse and the nurse’s evaluation of Boey are also not audible on the body camera. Note that when the women were upset and verbalizing their displeasure during the arrest, that he left that audio running. But at other times, he apparently concealed his own audio.
Deputy Hayden did not take her for medical treatment. Instead a jail nurse refused to admit her because of her injuries and being 6 months pregnant. Only then was she taken to an ER. Legal analysis aside, was any of that really necessary? Is it that difficult to just be kind, or at least calm? You would think that rational police officers would sometimes think to themselves, do I really need to be doing this right now? What is my purpose? What am I trying to achieve? This is where ego gets in the way. The question is not what you think you have the authority to do, but rather, what should you do? Hell, just acting rationally, what is in your own best interests? Whereas citizens should ask themselves at times whether they really want to invite the man into their lives, so should police officers ask whether they want to invite drama into their lives through demonstrating their perceived authority, or demanding what they perceive to be respect.
It’s really not that much different than child custody litigation. Just because you can, or you think it’s fair, doesn’t mean that it’s also best for your child, or you in the long run. You’ll end up in a better position, and happier, by just being kind, or at least manipulative and pretending to be kind. Meanwhile, record and obtain evidence with a smile on your face. But I guess that’s too much to ask at this point.
In the footage, we don’t see the beginning of the stop. Thus I’m not sure whether Boey was already out of her car prior to the initiation of the stop. This is actually a common issue I see. Can police officers pull into your driveway, knowing you just pulled in, got out of your car, and begin walking in your house, and then at that point initiate a traffic stop? This is where it depends on the circumstances.
As we’ve discussed before, reasonable suspicion of a crime is required to detain a suspect. Usually in a traffic stop that is based on the officer allegedly observing a traffic law violation. Driving with a broken taillight could meet the reasonable suspicion requirement. But what about seeing the busted taillight, and then not getting to the suspect until they’re standing in their yard, the car now parked? What about not getting to them once they’re inside their house, even though you saw them drive with a busted taillight? This is where we could get into a lot of “what ifs” that could be tricky for a police officer. If you’re going to have to perform a traffic stop on someone who is now standing in their driveway, or yard, or porch, you might want to ask yourself if the crime for which you’re basing reasonable suspicion on is sufficiently important to justify entering this grey area that may involve you now being within the curtilage of someone’s home, without a warrant, and without probable cause.
Now, if there is a warrant, a police officer could even follow a homeowner inside their home to arrest them. Note I said it has to be their home. The home of a third party would require a search warrant, or a valid exception. If it was a “hot pursuit” situation, under some circumstances officers could be given quite a lot of leeway in entering, or remaining in the curtilage of a residence. But those “what ifs” don’t appear to be relevant here. We are looking at the most minor of minor traffic offenses, followed by an arrest for an alleged failure to identify, where the arrestee had just given her name. As I mentioned in a recent video on one of my cases, he tables turn when you’re talking about a police encounter occurring within the curtilage of a suspect’s residence. Law enforcement has no right to demand identification on your own private property – at least not without a warrant.
But it just goes back to the fact that a police officer should ask himself, why am I here? What is my purpose? What do I have to gain? And also, what do I have to lose? It would be a novel idea for law enforcement in this country to just try being kind and using common sense. Of course, there are plenty of those officers around. You just don’t hear about them or see them on Youtube. Because they are the ones who go home at night – drama free.
In November of last year I posted a video showing a West Virginia judge flipping out at a traffic stop in Moorefield, West Virginia. In response to a stop he admitted was justified, he nevertheless pulled rank on a young police officer, immediately identifying himself as a judge, getting his supervisor on the phone, and later trying to get him fired, including threatening judicial retaliation against that department. Here’s that video:
I first exclusively obtained the body cam footage via a FOIA request from that police department. Well, now that judge is facing suspension, according to an order that was issued late last week. As explained in my first video on this, Judge Carter Williams was charged with multiple disciplinary violations. Then, in February of this year, I published yet another video about Judge Williams being in trouble again, over allegations that he kept leaving Walmart without paying for his merchandise. I also published a lengthy blog post about it. Here’s the Walmart video:
Since Judge Williams contested the matter, as he’s entitled to do, on June 14 a contested hearing was held before West Virginia’s Judicial Hearing Board over the course of three days. On September 19, the Judicial Hearing Board held a meeting to discuss the evidence presented, and on September 22, they issued an order finding that numerous judicial ethics rules were violated and recommending specific discipline to the West Virginia Supreme Court. Here’s the order:
The Judicial Hearing Board actually hit the nail pretty much on the head when it wrote in the order:
“There is clear and convincing evidence that the Respondent engaged in conduct that was prejudicial to the administration of justice by being unnecessarily belligerent to the traffic officer, by contacting the traffic officer’s supervisor in a manner suggesting he wanted special treatment and punishment for the traffic officer, by contacting the police chief, former police chief, and mayor in a manner suggesting he wanted special treatment, punishment for the traffic officer, and that his rulings in future cases might be influenced by his traffic stop and the action or inaction taken by police officials in response to his complaints against the officer, and by contacting the prosecuting attorney regarding this same subject matter.”
They recommended that Judge Williams be suspended for a period of one year, with all but three months of that suspension be stayed, pending “supervised probation.” Sounds familiar I’d say. So in effect, a three month suspension, without pay, but the possibility of up to a year with bad behavior. Additionally, they recommended a $5,000 fine, as well as reimbursement of $11,129.06 for costs. So we’ll have to wait to see what the West Virginia Supreme Court does with it. Also, I take it this did not include the Walmart allegations, which are still pending as far as I can tell.
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.
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.