happy monday if you haven't learned this about me yet now you know i don't like to do legal stuff on the weekends anyways my email inbox was blowing up this weekend when i was trying to have fun what happened was a nationally known first amendment auditor on youtube posted a video of his interaction at a courthouse that is local to me in greenbrier county west virginia in the the description i'll post a link to this video it's also up at the website at the civil rights lawyer dot com and a lot of people have seen it it's gone pretty viral so i'm probably not showing you anything you haven't seen already let's get to the important stuff people have been asking me for my take on this video and given the fact that i have an office literally a stone's throw away from where this happened i've been at that courthouse many times i know some of the people involved in this or i've met them before anyways fact i was first sworn in to practice law in the circuit courts of west virginia in that very courthouse as you see in the video here are the relevant facts according to me anyways the auditor enters the courthouse and you do have to go through security to get in by the way you don't get id'd but you do go through a metal detector and mind you they're filming you as you walk in as well so he goes into what i know to be the county clerk's room of the courthouse which is where they keep the property deeds surveys things of that nature and it appears that very quickly upon entering that room he was asked to leave people did not want to give permission to be filmed after that a courthouse security officer approaches and says that you're not allowed to film in here then he eventually makes his way to what i believe to be the county commission room where he speaks with the actual elected sheriff of the county and an attorney he explains what he's doing but he declines to give his full name at that point he's asked to leave on the way down the stairs the deputy escorting him gets in his face and at one point asks where he's from once outside that same deputy then says that he's now decided to demand this guy's id because he's now going to undertake an investigation of a suspicious person who's making people in the courthouse uneasy so let's sort through the legal issues here courthouses in west virginia have some confusing legal authorities presiding over them there's really three separate governmental authority figures the court the sheriff and the county commission there is one west virginia supreme court case discussing this which is state x-rail farley versus spaulding from 1998. in that case it notes that article 8 section 6 of the west virginia constitution provides that subject to the approval of the state supreme court the local circuit court has the authority and power to establish local rules that govern that particular court including administrative things however at the same time article 9 section 11 of the west virginia constitution provides that the local county commission possesses the police powers in their county including at the courthouses in their county additionally now there's a state code 732 that mandates that the county commission is responsible for providing a suitable courthouse at their expense and also possesses the authority an obligation to provide for courthouse security via the local elected sheriff thus the county sheriff is generally responsible for courthouse security in west virginia however the local circuit courts are ultimately in control of their courtrooms generally speaking now looking at the court side of things west virginia state court trial rule 8 trial court rule 8 provides that permission of the court is required quote in and out in and around the courtrooms during judicial proceedings which can be granted at the sole discretion of the presiding judge trial court rule 8.05 provides that any media coverage or video audio coverage of non-judicial meetings in the courtrooms are also subject to permission with the concurrence of the sponsoring group so looking at what happened here this he did film at one point inside a courtroom but generally this was taking place outside the courtroom there were no judicial proceedings that i could see that were taking place certainly when there are the trial judge has the ability to control their courtroom no doubt under west virginia law and most other states while courts going on doesn't appear that that was going on here it looks like we're dealing with more of a sheriff's general authority over courthouse security period now are there id laws in west virginia generally speaking there is no state law in west virginia requiring pedestrians to produce their id to police to law enforcement if there were generally speaking it would constitute a violation of the fourth amendment where there was no reasonable suspicion that any crime had been committed the fourth circuit which is where this is where i practice where the it was is the ultimate law of the land one step down only to the supreme court here in west virginia the fourth circuit previously has denounced police officers from seizing individuals based on non-particularized general assumptions about suspects which may be based on irrational speculative or otherwise improper fears biases or falsehoods source for that united states versus black for circuit 2013 among other things so even with reasonable suspicion the west virginia supreme court of appeals has held that in non-traffic investigative detentions now remember non-traffic is the key here we're dealing with pedestrians as i've said many times before the legal rights of a pedestrian versus somebody who's pulled over a traffic stop can be very very different so don't confuse those two things but in west virginia west virginia case law from the supreme court has held that non-traffic investigative detentions in that context that refusal to identify oneself to a law enforcement officer does not standing alone form the basis for a charge of obstructing obstructing an officer in west virginia that's state versus snersky the 2003 case i've discussed it many times written about it many times in another west virginia case they said quote the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state that's from a 2003 west virginia case called state xrell willmoth wilmoth versus gustke again these will all be at the at the the link in the description at the website at the civil rights lawyer dot com so you can go back and look at those later if you have relevant interest so i deal with this state obstructing charge all the time in my career on the charge of and that's what you get charged with there's no id law in west virginia but what they do do is charge people with obstruction um and that's why he says well i have an investigation and this is what i'm investigating and that happens in other states as well so let's look at obstruction in west virginia on the charge of allegedly obstructing an officer in violation of what it is is 61-5-17 the plain language of that statute establishes that a person is guilty of obstruction when he quote by threats menaces acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder obstruct a law enforcement officer probation officer parole officer acting in his or her official capacity so what does that mean well let's go back to the fourth circuit again law of the land one step down from supreme court having to do with constitutional federal constitutional issues the fourth circuit fairly recently in 2019 held that in west virginia discussing our statute here lawful conduct is not sufficient to establish the statutory offense of obstruction they noted that the west virginia courts have held that when done in an orderly manner merely questioning or remonstrating with an officer while he or she is performing his or her duty does not ordinarily constitute the offense of obstructing an officer that's hup versus state trooper seth cook 4th circuit 2019. lastly does a citizen in west virginia have a first amendment right to record their in-person public records request at a county courthouse they do in my opinion so long as they are otherwise engaging in lawful conduct so doing so cannot be used to detain and forcibly id that individual based on a police officer or anyone else's subjective irrational fears where law enforcement decides to now i'm going to conduct an investigation because this person is suspicious to me or this person is making other people uneasy a forcible detainment and id of an individual would be a fourth amendment seizure that would be unreasonable and therefore unlawful so what about the first amendment really there can be little question that a first amendment auditor in the process of filming his interaction with public officials is engaging in first amendment protected activity to prohibit him from doing so unless he provides identification to them is interference with the first amendment subsequently demanding identification under threat of arrest for obstruction as a result of engaging in protected first amendment activity very likely could consist of first amendment retaliation you can apply the facts of what you've seen to what i think the law is i'll be curious to see where this goes [Music]