Derrick Williams was fast asleep in the apartment he had been living in for about a month (which was leased by a friend/Uncle) when he heard a commotion outside his bedroom. It was the Chesterfield County (Virginia) Police Department, who had just opened the front door and sent in a police K9 to find him and violently attack him. But it was a mistake. He had done nothing wrong. His friend/Uncle’s ex-girlfriend had come by earlier to collect some belongings, saw him asleep in the apartment, and called 911, believing he was an intruder of some sort. Instead of realizing that Derrick was not an intruder, they just went full send with their attack K9, to bite first, and ask questions later. Now a lawsuit has been filed. But the cops are asking for qualified immunity, claiming they did nothing wrong.
My last two videos are both updates on a video I made back in February, where an employee of a firearms-related company in Virginia Beach, owned and operated by former Navy SEALs, was arrested for allegedly stealing a missing AR-15 lower. Only 10 minutes after the arrest, while James was being interrogated, the missing lower reappeared somehow. My first update video discussed the fact that the former SEALs want my first video removed. Here’s that video:
You can watch the original video here. Yesterday I posted yet another update video about the fact that the Virginia Beach Police Department is apparently attempting to coverup this incident:
After the first update video, several of you served FOIA requests on the VBPD for the police report from this incident. Some of you received outright denials. At least one of you received a basic report with basically no substance:
But one of you actually did manage to obtain the report, after threatening to sue the VBPD over their denial to provide the report. But unfortunately, this is what they provided:
This is their explanation as to why they redacted basically the entire report:
This is the law they’re relying on to hide the substance of the report, which clearly documents their own misconduct. Here’s a great explanation as to how this is possible, from the guy who obtained the report:
For a short time after the passage of HB2004 in 2021, records of closed police investigations in Virginia were opened to public scrutiny. With the changes from that bill, the Virginia Freedom of Information Act made disclosure of criminal investigative files mandatory when the investigation was “not ongoing.” After the law took effect, the family of Kionte Spencer was able to obtain video of his fatal shooting at the hands of Roanoke County police officers—video that the department had refused to show his family since his death in February 2016.
That newfound transparency dimmed less than a year later, with the passage of HB734. In a swift reversal, legislators amended the law to give police departments and other law enforcement agencies complete discretion to decide whether or not to release records of closed investigations. Legislators who voted for the bill evidently believed the change was necessary to protect victims and their families from the release of sensitive photos of their loved ones. “We do want to protect victims as much as we can. We don’t want those pictures out on the internet,” Sen. Richard Stuart said during a committee hearing on the bill. In fact, the 2021 law already prohibited release of such photographs.
Unsurprisingly, what’s happened is that the Virginia legislature has created a mechanism whereby police agencies can hide their own misconduct from the public under the guise of protecting sensitive crime-victim information.
While the statute appears to have all sorts of exceptions and varying applications, the key word is “non-mandatory,” which renders most of it meaningless. It puts disclosure entirely within the discretion of the police agency. If they want to produce it, they produce it. If they don’t, they don’t. So if it makes you look bad, they’ll produce it. If it makes them look bad, they won’t. This is unacceptable.
There is no public interest in allowing the government to coverup its own misconduct. Thus they either tricked the public with this legislation, or the law enforcement lobby tricked the legislature. Either way, it’s outrageous.
Also, here’s the 2nd Circuit opinion that was released yesterday that I discussed in yesterday’s video regarding de facto arrests:
This is an interesting situation. A black employee of a firearms-related company, apparently run by military vets offering a number of different products, realized they were missing an AR-15 “lower,” which was supposed to have been mailed out by a particular employee. Rather than discuss the matter with the employee, they called the cops, who arrested the employee pretty much immediately, ultimately holding him for multiple hours. However, it seems that the missing lower was found only 10 minutes after this man was arrested. Oops… it was all a big mistake. But the employee was still fired and sent packing, with an apology from the cops.
This video comes to us from Hampton, Virginia, where a local high school math teacher got pulled out of his own car at gunpoint by a police officer, who mistakenly believed the car to be stolen. This happens all across the country, where police agencies have policies to perform so-called “high risk” or “felony” stops where their computer tells them a car is stolen. Often this results in innocent people being held at gunpoint by their government.
Here’s a prior post I did on the same issue for another video that goes further into the case law from similar incidents.
In Richmond, Virginia, Kaya had just picked up some groceries and was walking home. She noticed some police officers bothering a homeless lady sleeping on a bench. She stopped to film them. You know what happens next…. She reached out to me and asked me to share her story.
Here’s the full video with the raw bodycam footage:
Today’s video is about Matthew Souter, who owns a farmhouse in The Plains, Virginia. He ended up being unlawfully arrested and tased by police officers in his front yard. Back in November of 2018. He rented a bedroom and bathroom in his home to Melissa Johnson. Following a dispute about her cat and an electric hotplate, she went to a local court and obtained an ex parte Emergency Protective Order (“EPO”) against Mr. Souter, which restricted him from “acts of violence, force, or threat of criminal offenses resulting in injury to person or property” of Johnson.
The next day, November 10, 2018, Johnson called the Fauquier County Sheriff’s Office and reported that Plaintiff had violated the EPO by terminating the electric and water service to her bedroom and bathroom. She spoke with a deputy who took her complaint and classified it as a “civil matter.” Not satisfied with that, she called again later the same day. This time she spoke with a different deputy, who was dangerously incompetent. He ended up applying for an arrest warrant against Mr. Souter, alleging a violation of the EPO. There in fact was no violation – nor any reason for him to believe that Mr. Souter had committed any crime. But, he obtained an arrest warrant.
This deputy and his supervisor then traveled to Mr. Souter’s home with an arrest warrant. The deputies seized Mr. Souter. I spoke with Mr. Souter on the phone and he denies resisting this arrest. However, in a subsequent ruling, the federal court wrote that it was undisputed that he resisted arrest. This is what the Court found, specifically: “Plaintiff resisted arrest and did not permit the officers to handcuff him. The officers then wrestled the Plaintiff to the ground, while Plaintiff continued to resist the officers. McCauley then used a taser to subdue the Plaintiff. After Plaintiff was tased, the officers were able to handcuff the Plaintiff.” Mr. Souter was tased multiple times and was bleeding. He was taken to a local hospital emergency room.
The officers subsequently charged Souter with the underlying EPO violation, as well as attempted fleeing from a law enforcement officer. The EPO charge ended up being dismissed by the prosecutor, and he was found not guilty of the fleeing charge following the criminal trial.
Then Souter filed a federal section 1983 civil lawsuit. Here’s the complaint his lawyer filed:
Fast forward in the litigation, and something pretty unusual ended up happening. The federal judge – Judge Ellis – in the Eastern District of Virginia, not only denied qualified immunity to the officers, but granted summary judgment in favor of the Plaintiff. That means that the Court found that Mr. Souter’s civil rights were violated, as a matter of law, and that the only issue for the jury to decide is the amount of money damages to be awarded.
Why did the officers lose qualified immunity, as well as the opportunity to even oppose liability in front of the jury? In short, because they acted such utter incompetence. The Fourth Amendment protects against citizens being unlawfully arrested by law enforcement. An unlawful arrest is one that occurs in the absence of probable cause. Police officers can be held civilly liable for a false arrest “if it would have been clear to reasonable officers in their position that they lacked probable cause to arrest” Plaintiff for violating the cited law. Graham v. Gagnon (4th Cir. 2016).
The officers aren’t required to be actually correct in their probable cause determination, but rather reasonable in their probable cause determination. Here’s the Court’s full opinion:
In this case, all the officers knew is the allegation that the Plaintiff had cut off Johnson’s water and electric service. There was no reasonable basis for them to conclude that the Plaintiff had engaged in any act of violence, force, or threat, against Johnson. Thus, if they believed Plaintiff had done any of those acts, such a belief would have been clearly erroneous and unreasonable.
The arrest warrant the officers obtained alleged violation of a domestic violence type of protective order, which did not exist in this case. No such domestic violence type of protective order had been issued against the Plaintiff, as would be obvious on the face of the actual EPO served on the Plaintiff. Moreover, even if Plaintiff had been served with a domestic violence protective order, cutting off water and electric do not constitute acts of violence, as defined in the EPO. Therefore, Plaintiff’s conduct could not have led a reasonable law enforcement officer to conclude that probable cause existed or that his arrest was proper. Thus they violated his constitutional rights when they unlawfully arrested him (and used force to effectuate that arrest) in the absence of probable cause.
The illegality of Plaintiff’s arrest taints the defendant officers’ subsequent actions and renders them liable for Plaintiff’s excessive force claims. Under federal law, “the Fourth Amendment prohibition on unreasonable seizures bars police officers from using excessive force to seize a free citizen.” Jones v. Buchanan (4th Cir. 2003).
Let’s fast forward to the trial results. The jury ended up awarding a total of $50,000.00 in compensatory damages to Mr. Souter. Here’s the jury verdict form:
In my phone conversation with Mr. Souter, he was actually very unhappy with the verdict, both in the amount of $50,000.00, as well as the lack of a punitive damages award. He took issue with how the presentation of the damages claim was presented to the jury at trial.
For many reasons, people many times have unrealistic expectations on the value of damages in civil rights cases. At the end of the day, a jury decides these things. This can vary wildly depending on a number of factors, including the personalities of the parties, as well as the jurors themselves. I wasn’t at this trial, so I really have no idea what dynamics were present in the courtroom. But this illustrates one of the difficult parts of the job of a civil rights lawyer. Ultimately you have to convince a jury to award money damages. How do you do that? It can be very difficult, and sometimes emotion is all you have, assuming you can instill it in the hearts of the jurors.
There’s a form instruction in section 1983 cases that says something to the effect of, if you find that the plaintiff’s civil rights were violated, you must at least award $1.00, even if you find that the plaintiff suffered no actual damages. The value of constitutional injuries can vary wildly based on who is on the jury. But there’s also a federal law, 42 U.S.C. Section 1988, which provides for an award of reasonable attorney fees following a finding of liability. That means that even if a jury awards One Dollar, there could potentially be an attorney fee award of six figures.
