Sylvia Gonzalez became the first Hispanic councilwoman elected in her hometown of Castle Hills, Texas. She was elected on a platform of reform, based on her neighbors’ complaints about the current incompetent town leadership, including the city manager. Her first act as councilwoman was to present a citizens’ petition to remove the incompetent city manager. The entrenched swamp creatures had other plans, however. The city manager and other city officials conspired to have Sylvia arrested and charged for a bogus criminal violation.
The Institute for Justice took her case and filed a federal civil rights lawsuit for First Amendment Retaliation. You can learn much more information about the case on the IJ’s website and view the legal filings here.
“Castle Hills officials seem to believe that they are above the law because they are the law,” said Anya Bidwell, an attorney at the Institute for Justice, which represents Sylvia. “But criticism isn’t criminal, it is a constitutional right. And it is patently unconstitutional for an official to use the police to stifle speech and retaliate against political opponents.”
Last year I did a video on that case, which had been lost at the Fifth Circuit. Now the Institute for Justice is petitioning the U.S. Supreme Court to take the case.
Last week I had the wonderful opportunity to interview Anya Bidwell about the case. Like Patrick Jaicomo, who I got to interview about the James King case recently, Anya is one of the top civil rights attorneys in the country. She spent her childhood in Ukraine and Kyrgyzstan. At 16, she left her family behind and came to America on a university scholarship. Her upbringing motivated her to study law and become an advocate for a strong, independent judiciary.
If you want to help, please consider supporting the Institute for Justice, either by donating or by following and sharing their content.
On December 13, 2022, Waterbury, Connecticut police officer James Hinkle had a complete meltdown, caught on video, that ended in him getting fired for verbally abusing a motorist. Details here.
Here’s the statement from the employer:
“His conduct during this encounter with a citizen of the community is unacceptable and not representative of the men and women serving the Waterbury Police Department,” Waterbury Chief Fernando Spagnolo said in a statement. “WPD officers are trained to demonstrate the highest level of professionalism when performing their duties.”
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 April of 2020, a 72 year old combat veteran, himself a retired law enforcement officer, was arrested in his barbershop, for refusing to close his business during the lockdown ordered by our Governor. The criminal case is long over. The civil lawsuit that I filed is also over at this point. But the footage is a good reminder about your government.
Government employees will follow orders. Law enforcement will follow orders, constitutional or not. It doesn’t matter whether they have an American flag tattoo and/or sticker on their truck. It doesn’t matter whether they spout off on the inter-webs about patriotism and the Constitution. They’ll follow orders. And never count on the judiciary to hold them accountable.
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. He beat the criminal charge. Here’s an excerpt of the dismissal order:
In the subsequent civil lawsuit, 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. Here’s the original complaint:
The point is, here is concrete proof that it matters not whether your local police officer is a nice guy, or patriotic, or whatever. They will follow orders. They are agents of the government. If they don’t do it, they will be replaced with someone who will. But they will do it, I assure you – even if they personally disagree with it. It would be a tragedy to lose the pension and dental plan, of course. Don’t get confused about the difference between an individual’s personality and personal beliefs and their status as an agent of the government. There are countless examples of this, going back to the beginning of our republic. Don’t get caught ignorant.
October 9, 2020, Sterling Police Officer Paul McDaniel pulled Christian Weitzel from his apartment and threw him to the ground. With the assistance of Sterling Police Officer Matt Williams and Logan County Sheriff’s Deputy Alton McGuffin, the three officers hogtied Mr. Weitzel with his wrists handcuffed behind his back, his ankles strapped together, and his ankles and wrists tied together behind his back. They drug him to a police cruiser, threw him into the rear seat, and left him in that position until he was finally released at the jail.
There was a verbal argument between Mr. Weitzel and his wife, Brittany Weitzel. Mr. Weitzel was not arrested or charged with any criminal offenses related to a domestic dispute. The officers were called to the scene following a call from a neighbor of a possible domestic dispute due to hearing loud voices. After the officers arrived at the apartment, they could not hear anyone yelling inside the apartment. They did not observer any altercation taking place, or any crimes being committed.
Officer McDaniel asked Brittany what was going on and she stated, “just an argument.” She did not appear to have any injuries. She did not request assistance from the officers. She had not called them to the scene. Mr. Weitzel then walked up to the doorway from inside the apartment. He did not step outside the threshold of the apartment door. He asked Officer McDaniel, “what’s up man,” in a calm nonthreatening, and nonaggressive manner.
Officer McDaniel asked Mr. Weitzel to “come here and talk to me man.” Mr. Weitzel, in a calm, nonthreatening and nonaggressive manner, stated, “I’m cool,” indicating that he wanted to stay inside the doorway of his apartment. He made no sudden moves. He did not threaten the officers in any way. Mr. Weitzel did not appear to be armed. Nor did the officers have any information or indication that Mr. Weitzel was armed. Mr. Weitzel was ultimately hogtied for approximately 16 minutes. Mr. Weitzel was charged with disorderly conduct, resisting arrest, and obstructing. All the charges were subsequently dismissed by Logan County Court Judge Ray Ann Brammer.
A lawsuit was filed just a few days ago in state court in Colorado over these allegations. I’ll post it up to the blog, link in the description. As for the facts, based on the body cam footage and the facts presented in media reports and the civil lawsuit, constitutional rights were violated. Why?Although the officers were called to the scene of a reported domestic dispute, they ended up acting on a very small amount of information that, even if true, does not justify an arrest of the homeowner, much less a use of force.
A neighbor called 911, reporting a suspected verbal argument. There was apparently no allegation of a crime being committed, or that anyone’s physical safety was in jeopardy. When officers arrived at the scene, they saw no crime being committed. They located and observed both spouses at the residence. Neither appeared to be in distress, or requested their assistance. Without Mrs. Weitzel requesting their assistance, under these circumstances, the officers had no justification for pulling Mr. Weitzel out of his house. That’s a Fourth Amendment violation right there. But even assuming they acted properly up to that point, then we have the arrestee being hogtied on the ground.
Colorado is the 10th federal circuit. A quick search of the case law shows that police officers hogtying anyone is a terrible idea under almost any fact pattern. It could theoretically be reasonable under some circumstances, but I really don’t know what that would be. It certainly would not be reasonable under this fact pattern, where the arrestee had not committed any crime at all, much less a severe one. Watching the body cam footage shows that the arrestee is not attempting to harm the officers. He poses no threat to them.
Rather, it appears that the officers hogtied the man in retaliation for not immediately respecting their authority by stepping out of his house when they asked him to do so – despite having no legal justification for the demand. This appears to be one of those common situations where police are going to teach a lesson about respecting the police. It’s clearly not about the safety of anyone on the scene, including the arrestee.
There’s a 10th Circuit case, Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), that discusses hogtying, making it clear that the courts consider it akin to the use of deadly force, as it poses a high danger of positional asphyxiation. I’ll put all the legal citations in the blog post on this, which you find in the description. The Weigel case also cites another 10th Circuit case, Cruz v. City of Laramie, 239 F.3d 1183, 1188-89 (10th Cir. 2001), which is relevant here.
In Cruz, Wyoming police officers responded to a complaint of a naked man running on the exterior landing of an apartment building. When the officers arrived, Mr. Cruz, the man on the landing, was jumping up and down and kicking his legs in the air. When he descended from the landing, the officers wrestled him to the ground and handcuffed him. They hogtied him. Shortly thereafter, Mr. Cruz’s face blanched. He was rushed to the hospital, where he was pronounced dead on arrival. Expert reports indicated that Mr. Cruz’s death resulted from positional asphyxiation. Citing Cruz, the 2008 Weigel opinion denied those officers qualified immunity for similar conduct, issuing a clear warning to law enforcement to think twice about hogtying arrestees. As a result of this, the Wyoming State Police, as I understand it, prohibited the practice. Back in the 90’s, the DOJ also warned against the cruel practice.
There are a lot of other hogtying cases out there. But I gave you the 10th Circuit law, as that is applicable for this particular jurisdiction.
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’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.
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.
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.
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.
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:
