Virginia Jury Awards Damages Against Officers for Civil Rights Violations

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. 

Police Harass Innocent Citizens on Their Porch – Lawsuit Filed Today

What you’re about to see here is outrageous body cam footage that has never before been seen by anyone, other than law enforcement. It shows what happened to my clients, Jason Tartt, the property owner and landlord, as well as Donnie and Ventriss Hairston, his innocent and mistreated tenants, on August 7, 2020, when they were subjected to civil rights violations by two deputies with the McDowell County Sheriff’s Office, Dalton Martin and Jordan Horn. 

Today we filed a federal civil rights lawsuit, which is posted below. But you can watch the footage for yourself. Before the body cams were turned on, what you need to know is that there was a complaint received that an abandoned church, in an overgrown parcel of land not owned by any of these individuals, apparently had four marijuana plants growing there, among the thick brush. Crime of the century, right? The perpetrators must be one of the elderly African American residents nearby, of course. Instead of treating them as human beings, let’s accuse them first thing, then mistreat, harass, and retaliate against, them if they dare to get uppity, or not know their place. 

Donnie and Ventriss Hairston were sitting on the front porch of their rural home, when two deputies approached and began to harass and intimidate them. Their landlord, who lives next door, joined them shortly afterwards and began to ask questions. When they asserted their opinions and rights, retaliation ensued. The landlord, Jason Tartt, was seized and arrested. The Hairstons were shoved into their home against their will. This is never before seen footage, outside of law enforcement of course. Take a look and form your own opinion about what happened.

Here’s the footage:

Here’s the lawsuit:

Stay tuned for updates….

Street Preacher Arrested in Bluefield, WV for Graphic Anti-Abortion Signs

Edgar Orea brought me this footage. He’s a street preacher who was arrested in Bluefield, West Virginia for the content of his protected First Amendment speech. Edgar and his wife moved to Bluefield in order to serve the people of nearby McDowell County, West Virginia, which is the poorest county in the entire nation. But from the very beginning, they were harassed by the Bluefield Police Department, as you’ll see in the video. The police objected to the content of their message. In this particular incident, they actually arrested Mr. Orea and took him to jail based on the content of his anti-abortion sign, which showed an aborted fetus.

There was a similar case litigated in Kentucky: World Wide Street Preachers’ v. City of Owensboro, 342 F.Supp.2d 634 (W.D. Ky. 2004). In that case, another street preacher was arrested in a public park for showing a large sign with a similar photograph of an aborted fetus. The police claimed that this was causing public alarm and was likely to cause a confrontation. So they cited the individual, but otherwise didn’t arrest him or interfere with his other activities. The Court held:

A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)….

In light of Supreme Court precedent, the Court cannot find that the Plaintiffs’ sign, no matter how gruesome or how objectionable it may be, constitutes “fighting words.” The Plaintiffs’ speech, whether one agrees with it or not, was certainly not of “slight social value.” Rather, their speech was a powerful, albeit graphic commentary on a societal debate that divides many Americans. Furthermore, their speech was not directed at any particular person. Their speech commented on a highly significant social issue and was calculated to challenge people, to unsettle them, and even to anger them, but not to insult them. Such social commentary is not only protected under Supreme Court precedent but also is highly valued in the marketplace of ideas in our free society. 

Here, the Bluefield Police Department did much more than issue a citation, but rather placed Mr. Orea in handcuffs and carted him off for incarceration. Then they refused to return his signs, except for one. They charged him with two criminal misdemeanors: disorderly conduct and obstruction, two favorites of law enforcement officers for arresting people who have committed no crime. Fortunately, the charges were dismissed by the Court following a motion to dismiss based on the First Amendment.

The “Outlaw Barber” Arrested for Refusing to Close During the Lockdown Files Civil Rights Lawsuit

Today we filed suit in the case of the “Outlaw Barber,” Winerd “Les” Jenkins, a 73 year old combat veteran and former 27-year Deputy U.S. Marshall, who was arrested for refusing to close his barbershop during the Governor’s lockdown in April of 2020. We filed a Section 1983 civil rights lawsuit in federal court, in the Northern District of West Virginia.

The case was detailed last year in a Federalist article titled, West Virginia Barber’s Arrest Shows Failings Of The Bureaucratic State:

When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.

His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.

He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer. The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order.

We asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. It’s already been assigned a case number. Read it for yourself:

I’ve already revealed the body cam footage from one of the deputies, which caught much of the interaction on video: