Here’s a new West Virginia video I received out of Morgan County, West Virginia, showing an interaction between some young guys and multiple sheriff’s deputies outside a bar. What it shows is troubling, but not surprising: police officers who can’t control their temper when interacting with someone who is running their mouth – or as the courts call it, “mere words.” Here in the Fourth Circuit, police cannot use violent physical force in response to someone’s “mere words,” – even if they perceive them as obstruction or threats. See United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990).
This clip started making the rounds on Tik Tok and now it just popped up on the news here in West Virginia that the agency has ordered an independent investigation into the footage by an outside agency:
Morgan County Sheriff KC Bohrer says, “I have requested an investigation into the matter by an independent agency to be totally transparent and through.”
He says the issue will be ” thoroughly and impartially investigated” and asked for patience during the investigation. “As in any investigation it takes time to gather all the facts.”
This happened on December 3, 2022. The guy they’re talking to had been assaulted in a bar Berkeley Springs, West Virginia. His friend called police. After they arrived, it became clear that they didn’t intend to help. So one of the men began to film.
Apparently, after the video turns off, both men were placed in the rear of a police car for a while. Shortly afterwards they were released with no charges. The one guy was finally able to go to the hospital and receive medical treatment.
There does appear to me to be some constitutional violations in there. I really need to see the police report and the 911 communications to gather all the facts before giving a more informed opinion. In fact, I already submitted a FOIA request. Not surprisingly, given that an investigation was ordered, they’ve already denied my request:
Hopefully this isn’t one of those situations where an investigation is ordered and then… nothing is ever released. There seems to be an awful lot of those in West Virginia.
In the Fall of 2020, David Craft, who then lived in Statesville, North Carolina, killed a monster buck in McDowell County, West Virginia, and also killed another trophy buck back in North Carolina, during the same season. David is a serious deer hunter. He does his homework; he puts in the time. He gets result. But others get jealous. Law enforcement ended up essentially stealing his antlers, posing with them for the media, dragging him through over a year of frivolous criminal prosecution, and then abruptly dropping the charging just prior to the jury trial, when it turned out they had no evidence.
Apparently accusations began to fly in early 2021. West Virginia wildlife officers, or DNR officers, from McDowell County completely ran with unfounded suspicions or allegations that David’s North Carolina buck was actually killed in West Virginia, which would be a violation due to the fact that he had already killed this monster trophy buck there, and you can’t kill two – just one. Then, while they’re at it, they for some reason conclude that the trophy monster buck must have been illegally killed somehow, either with a crossbow instead of a regular bow, or because it must have been killed on the jealous neighboring hunt club’s land. Either way, a bunch of bros in West Virginia, law enforcement included, wanted those antlers. So they dream up a story of some sinister plot to deprive McDowell County good ‘ole boys of their rightful trophy bucks, removing them to the undeserving state of North Carolina.
Why did they want them? To show them off of course. In 2022, no mere peasant can post trophy buck brag photos online – just law enforcement. A quick review of social media shows that wildlife officers in West Virginia have really gotten into this.
Ultimately, the charges were dismissed, apparently due to a complete and total lack of evidence. A jury trial was set to occur on April 28, 2022. But on April 21, 2022, the prosecutor moved to dismiss all charges, which was granted by the Court.
“Like a lot of things the investigation started with help from people in the community. That’s our greatest resource for information. We received information of possibly two bucks being taken illegally,” said Natural Resources Police Officer Jonathan Gills in McDowell County.”
“According to Gills, once they learned the suspect was from North Carolina they reached out to officers with the North Carolina Wildlife Resources Commission.” “They were a HUGE help to us, said Gills.
“Officers from the two agencies were able to come up with photographs and other physical evidence in the case which proved both bucks were killed in West Virginia. Turned out one of the bucks in question was actually checked in as being killed in North Carolina. Now, North Carolina investigators are closely watching the West Virginia case and the individual will likely face charges in his home state as well.”
Gills said the evidence also showed both bucks were killed with a crossbow” and that “crossbows are not allowed in those four archery-only hunting counties unless the hunter has a Class Y hunting permit.”
Gills also told the media, “We’ve been sent a lot of photos and there are a lot of folks who are upset these deer were taken.”
However, looking at the actual investigation report received in response to our FOIA request, they provided only a single grainy photo of a single deer, and it could be a great Bigfoot photo, looking almost photoshopped and inconclusive either way. Additionally, there is no mention of any involvement of North Carolina officers, other than the accompanying then to David’s house and then assisting them in seizing the antlers from the taxidermist. They didn’t appear to have provided any evidence at all against David, nor made any allegation that he had committed any crime.
Thus the photographs and physical evidence Officer Gill claimed to possess, proving that both bucks were killed illegally in West Virginia, just didn’t exist. That was false. As the February, 2021 article goes on to say, this appears to have been more about local hunters, including law enforcement officers, trying to keep outsiders away from their deer. Officer Gill goes on to say in the article that the West Virginia legislature had recently drastically increased the so-called “replacement costs” for trophy bucks illegally killed. “Gills said it was a major weapon to deter poaching of big bucks in his county,” the article said.
“Our department was given a great asset with that. Basically, they’re stealing the deer. They’re stealing quality bucks from legitimate hunters; men, women, and kids who are trying to go out and enjoy the sport.”
So, just because David was living in North Carolina, despite the fact that he bought a license, which mind you is way more expensive for an out-of-state hunter, he’s somehow not a “legitimate” hunter. He had a license, with which he killed one buck in West Virginia. He had a North Carolina license, with which he killed on buck in North Carolina. Both were properly checked in and all that rigamarole. This seems to have been more about hunters in one particular county protecting their trophy bucks from outsiders.
The article ended, “So far, no court date for the suspect had been set.” Not surprisingly, there was never a follow-up article. They did no press release mentioning that they had to drop the charges and were forced to return both sets of antlers to David. But even when he got them back, the attached capes were ruined.
Here, they drug David through the mud and criminal prosecution for over a year. Then when it came time to present the evidence to a jury, they walked away. No apology, no compensation – just returned his damaged antlers. They got their photo-op. Officer Gills got to play with the antlers for a while, but he had to give them back. So that’s how this thing started.
Sounded great, right? The politicians probably loved it. The hunters back home probably loved it. But here’s how it’s going now.
Also now, Officer Gills and Officer Damewood are going to have to answer for their actions in a section 1983 lawsuit. We have multiple constitutional violations that appear to have occurred here. I’ll provide an update with the details when the suit is filed. Wouldn’t it also be nice if the government would issue an updated press release about how this ended? If you just read the last one, it sounds like they got the bad guy and kept the antlers. If you just read the last one, David sounds like a real criminal. And the officers all sound like heroes. Let’s go ahead and set the record straight.
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:
This is a case where plain-clothed police officers snuck into my client’s house through a window, searched his house without a warrant or other legal justification, found nothing and left. But they got caught on hidden surveillance cameras.
Long story short, there was no justification for their actions. No search warrant, no exigent circumstances and certainly no consent. Those are the only three justifications under the Fourth Amendment. As it turned out, the only purported reason they were there was to serve a civil summons, as the landlord had begun eviction proceedings due to late rent payments. That provided no justification to enter or search the home. The matter had not gone to court yet. There was no eviction order. The officers were investigated and disciplined. The only excuse given was that they didn’t read the paperwork, and thought there was an eviction order, and figured that since they’re a drug task force, they’d search for drugs while they were at it. We filed a federal Section 1983 suit for Fourth Amendment violations and are currently set for trial early next year.
The last update was about the video depositions in the case. I took the video depositions of the officers from the video. They all pled the Fifth Amendment. Supposedly the FBI is investigating them. It’s pretty clear now after having exchanged discovery and taken almost all the depositions, that this is the story of a drug task force unit designed to use so-called “knock and talk” investigations in lieu of the more-conventional and old-fashioned search warrant procedures.
The video depositions were pretty dramatic. The lawyers for the officers filed a motion for a protective order with the federal court, asking the Court to prohibit me from uploading the video deposition footage to Youtube. They claimed that exposing the sworn testimony of the police officers to the public endangered officer safety and prejudiced the in the eyes of potential future jurors.
A few days ago, the Court ruled, granting them a protective order during the pendency of the case. Then, when the case is over, I have to request the Court to vacate the protective order. But as the Court noted, a few things could happen in the meantime that could moot the issue, such as a settlement agreement, or the video depositions becoming public record, which they ultimately will in the very near future. Here’s the order:
“[T]he Court currently is not in a position to determine whether the protective order should terminate upon adjudication of the case, as that determination depends upon factors not yet known. The issue may become moot, as it is possible that the parties will agree not to publish the videotaped depositions as part of a compromise and settlement. The depositions may also become part of the public record, creating a presumption of public access which would significantly alter the Court’s analysis of the protective order .”
The Court further held that the protective order was not an unconstitutional prior restraint on free speech. The Court noted that:
“The Supreme Court explicitly stated that a protective order supported by good cause and limited to pretrial civil discovery, without restricting dissemination of information found in other sources, does not offend the First Amendment.”
The Court also denied the defendants’ request for attorney fees, finding that my actions were “substantially justified.”
As I warned them from the very beginning, trying to suppress this is only going to draw more attention to it. Even if I personally am restricting from uploading the footage to my Youtube channel, what about third parties? Restricting me from using the footage is only going to cause third parties to obtain everything that becomes public record and use it. The coverup is always worse than the original crime. The coverup itself becomes the story.
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.
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….
Today we filed a lawsuit against multiple West Virginia parole officers for a pattern and practice of sexual abuse of female parolees in the Parkersburg, West Virginia area. Imagine being a woman in the parole system, where your male parole officer, who has the ability to search your house, arrest you, or send you to prison at any time, begins to demand sexual favors. That’s what’s been happening in West Virginia. Imagine also that you report this to your parole officer’s supervisor and he intimidates you into silence and allows it to continue. Imagine even the FBI comes in and has to tell a Parole Officer to back off, that he’s under surveillance, and meanwhile, the guy’s still employed as a Parole Officer, as if it’s just par for the course.
My client, identified in the lawsuit by her initials, tragically, was already victimized in the West Virginia correctional system. She was therefore vulnerable to these predators. When her parole officer began to engage in misconduct, she bravely recorded him. Six recordings she created. She took those recordings to the supervising Parole Officer in the region, David Jones. Instead of protecting her and other female parolees from the predator, he ordered her to destroy the evidence, telling her that the predator, Anthony DeMetro, was his friend. He told her to just stick it out until she was off parole. Meanwhile, other women were victimized, and my client was forced to live in fear and humiliation.
According to the other lawsuit that was filed, which I’ve also posted, other female victims were coming forward to state parole officials, only to be ignored – which is absolutely unacceptable. Thankfully, the FBI was listening and began an investigation. Now the feds have indicted Anthony DeMetro. His indictment is posted in full below. They also filed a criminal information charge against DeMetro’s supervisor, David Jones. I’ve posted that as well.
Jeff Gray, the “Godfather” of First Amendment auditors on Youtube, this week stopped in a couple different small towns here in West Virginia, publishing two videos of his encounters. Jeff is a great guy. If you’re not familiar with him, he has a sort of raggedy cardboard sign he holds up that says “God Bless the Homeless Vets.” Then he goes to some public place and just says, “God Bless the Homeless Vets.” He’s super polite and respectful. People see the sign and they react however they’re going to react. Thus we see protected First Amendment activity, occurring in a traditional public forum, and then we see how our government servants end up reacting to that activity.
Jeff stopped in Chesapeake, West Virginia, where he was nearly trespassed off public property by a police officer, ironically standing in front of a veteran’s memorial. But for the most part, that one had a positive ending and overall experience. I encourage you to go watch that video.
Then, Jeff went to Mount Hope, West Virginia. When Jeff told me he was coming through West Virginia, asking where he should go, I told him about Mount Hope, where I exposed the fact that they had this police officer who was essentially terrorizing motorists on a nearby four lane highway. So apparently that’s where he chose to go, and you can watch the full video on his channel about just what happened. But here’s a few snippets. As Jeff explains in his videos, panhandling is a constitutionally protected activity. Here’s Jeff’s Mount Hope video:
Since government employees apparently have a difficult time grasping this concept, let me explain panhandling, as it relates to the First Amendment.
First of all, a municipality cannot just prohibit panhandling within its jurisdiction. A town cannot just decide that the First Amendment doesn’t apply within its borders. Theoretically, though they would likely be inviting litigation, a town could impose certain reasonable time, place and manner restrictions on panhandling. They would have to establish some legitimate content-neutral public safety reason for doing so, and then provide available alternatives that are still adequate. Traditional public forums such as parks, sidewalks, etc., could not be completely foreclosed from the activity.
Panhandling, or “begging” is protected by the First Amendment. The Supreme Court has held that the solicitation of “charitable contributions” is protected speech. Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). The Fourth Circuit has cited a sister circuit recognizing that, “We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not significant for First Amendment purposes.” Loper v. New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir.1993); cited by Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) (“We agree that begging is communicative activity within the protection of the First Amendment.”).
The location of this activity is extremely relevant to its protections. Places such as parks, streets, and sidewalks fall into “the category of public property traditionally held open to the public for expressive activity.” Indeed, the Supreme Court has repeatedly referred to public streets and sidewalks as “the archetype of a traditional public forum.” (Snyder v. Phelps 2011). If a municipality seeks to regulate protected speech in a traditional public forum, they may impose reasonable content-neutral time, place, and manner restrictions that are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). If the regulation is content-based however, the courts apply strict scrutiny. Under strict scrutiny, a regulation will be upheld “only if it is the least restrictive means available to further a compelling government interest.”
Thus step one is determining whether strict scrutiny applies, i.e., whether the regulation is content-based. If not, then intermediate scrutiny applies. The government’s restriction of speech is content-neutral if it is “ ‘justified without reference to the content … of the regulated speech.’ ” (Christian Legal Soc’y v. Martinez 2010). On the other hand, a restriction is content-based if it was “adopted … because of disagreement with the message [the speech] conveys.” “The government’s purpose is the controlling consideration.”
Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny—that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.”
In Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015), the 4th Circuit evaluated a Henrico County, Virginia ordinance that banned panhandling and several other forms of solicitation on all county highways. The Court established several evidentiary standards for the government to meet to satisfy intermediate scrutiny for regulating First Amendment activity such as panhandling.
The Court requires the government to “present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary.” Additionally, they have to prove that they actually tried other methods to address the government interest the regulation is designed to address, i.e., public safety concerns, flow of traffic, etc. If “available alternatives” are provided by the government, they need not be the speaker’s first or best choice, or provide the same audience or impact for the speech. But they must be adequate. If the speech is panhanding, the individual cannot be required to do so from a place where there is no target audience. If the speech is handing out leaflets, the speaker cannot be removed to only a spot where there is nobody to hand leaflets.
In short, someone engaging in protected speech generally cannot be subjected to disparate treatment based on the content of their speech whatsoever, and need only be subjected to regulation for legitimate content-neutral reasons only so long as the regulations are minor logistical restrictions, leaving adequate opportunity to continue to express the protected speech.
Therefore, a municipality cannot just prohibit panhandling within its jurisdiction. A town cannot just decide that the First Amendment doesn’t apply within its borders. Theoretically, though they would likely be inviting litigation, a town could impose certain reasonable time, place and manner restrictions on panhandling. They would have to establish some legitimate content-neutral public safety reason for doing so, and then provide available alternatives that are still adequate. Traditional public forums such as parks, sidewalks, etc., could not be completely foreclosed from the activity. Certain key high-traffic areas or spots could possibly satisfy this test. Certain key time restrictions could possibly satisfy the test. But just an outright ban within a town of all panhandling? Absolutely not. That would violate the First Amendment just as much as a ban on all protected speech within city limits.
New footage showing dash cam video of the Berkeley County Sheriff’s Department using a K9 to make an arrest. Here’s the footage:
When a K9 is deployed on a citizen, that individual is “seized” for Fourth Amendment purposes. Assuming the seizure itself was lawful, the issue is whether the seizure may be “unreasonable” due to being an excessive level of force. The deployment itself of a police K9 during the course of a seizure may be unreasonable, depending on the circumstances.
Courts look to the Graham Factors: the severity of the crime at issue, whether the suspect is actively resisting or evading, and most importantly, whether the suspect poses an immediate safety threat to the officer, or others.
The Fourth Circuit held, as early as 1995, that the improper deployment of a police dog that mauls a suspect constitutes excessive force in violation of the Fourth Amendment. Specifically, deploying a dog against a suspected bank robber in a narrow alleyway without warning and a fair opportunity to surrender was unreasonable and excessive. Furthermore, doing so where the suspect was surrounded by police officers is itself unreasonable and excessive, even where a warning is given. (Kopf v. Wing (4th Cir. 1991).The Fourth Circuit has also held that sending a police dog into a home that contained a burglary suspect, without warning, resulting in severe injuries to the homeowner, was an excessive force violation. Vathekan v. Prince George’s County (4th Cir. 1998).
Repeatedly over the years, the Court has held generally that the use of serious or violent force, i.e., disproportionate force) in arresting or seizing an individual that has surrendered, or who is not actively resisting or attempting to flee, and who does not present a danger to others, is an unreasonable excessive force violation.
The 7th Circuit has denied qualified immunity to a police officer where he failed to call off a police dog that was mauling a “non-resisting (or at least passively resisting) suspect.” Becker v. Elfreich (7th Cir. 2016). That Court also denied qualified immunity to an officer who commanded a dog to attack a suspect who was already complying with orders, and where there were multiple backup officers present. Alicea v. Thomas (7th Cir. 2016).
The Fourth Circuit cited that last case in 2017 as providing “fair warning” to police officers that they will lose qualified immunity where an officer deploys a police dog against a suspect was was “not in active flight at the time he was discovered,” but was “standing still, arms raised….” Booker v. S.C. Dep’t of Corr. (4th Cir. 2017). The Court also cited a 6th Circuit case where officers deployed a police dog to apprehend a suspect that had given police no indication that he presented a danger to others, and was not actively resisting but “lying face down with his arms at his side.” Campbell v. City of Springboro (6th Cir. 2012).
The Fourth Circuit has also cited an 11th Circuit case denying qualified immunity where the officer ordered his K9 to attack a suspect that had previously surrendered and complied with the officer’s order to lie on the ground. Priester v. City of Riviera (11th Cir. 2000).
Generally speaking: Where K9s are deployed, a warning should be given, along with an opportunity to surrender, where possible. Deploying K9s on suspects who have been already subdued, surrounded, or who are not actively resisting or evading arrest, is also likely excessive force, with or without a warning. Deploying K9s on suspects who pose no immediate threat is generally going to be unreasonable. K9s should only be deployed where there exists a serious immediate safety threat in a tense, fast-moving situation, where there’s some actual reason for doing so.