[Music] [Music] hi this is john bryan civil rights lawyer the civil rights lawyer.com now i tried to do a live video but it just wasn't cooperating with me the internet for some reason i had checked it a little earlier and although i don't have great high speed internet at this office it's usually at least sufficient and i checked it earlier and now all of a sudden it's less than half of what it was just a couple hours ago i'll give them the benefit of the doubt and assume that it's because they're in the process of installing high-speed wires down our road they actually are i'm hoping it's that that's the reason anyways it could have something to do with the weather i don't know in any event it wasn't going to to be good to just make my regular live video where it's completely pixelated and fuzzy and it's just garbage so i'm going to upload this as a regular video give you the same update that i was going to give and that's basically the fact that this case that i've already been talking about from the time that it was accepted by the supreme court was just issued in an opinion today written by justice thomas the case is coniglia versus strom and the reason that i was interested in this case is because one it has to do with firearms rights and secondly it has to do with this made-up doctrine that leadership anyways in law enforcement and prosecutors probably primary primarily and bureaucrats such as people you would find in a state attorney general's office had made this be up doctrine up called the so-called community caretaking exception in which they were trying to create basically a third exception for the police to perform warrantless searches of our homes and so that's what was it at issue before the supreme court and this was coming out of the first circuit and they were trying to extend this community caretaking exception so-called to to be one of the standard recognized exceptions that the supreme court recognizes and as i've gone over ad nauseam the state of the law is this that all warrantless searches of an individual's home which is his castle are per se default unconstitutional and that if the state does it if police does it if other governmental actors such as cps or the health department fascist if they do it they can do it potentially but it's we're starting at unconstitutional and they have to prove the constitutionality of their actions the burden will be on them to prove that either that they had a warrant or that there was some applicable exception that applied now when we're dealing with one's home really the only two exceptions if there's no warranty really the only two exceptions that apply are either voluntary consent or what's known as exigent circumstances aka an emergency some you know there was a baby choking inside or some sort of other emergency and that's what i was worried about here because what came up to the supreme court in this caniglia case was the and if you listen to the oral arguments really it was awful to listen to and i thought we i thought we were going to lose this case at the supreme court because i had listened to the oral arguments and and the questions were just awful and here's here's what this case had to do with coniglia versus strom again this was out of the first circuit and here's here's what happened in the case let me scroll down to it so there was an argument in rhode island this guy edward knigley and his wife they had an argument edward unfortunately retrieved a handgun from the bedroom put it on the dining room table and asked his wife to quote shoot him now and get it over with she declined and instead opted to spend that night at a hotel the next morning the wife discovered that she couldn't reach him by telephone she called the police and to request a welfare check and that's the beginning of you know most suicide suicide-by-cop stories it seems so the police show up they accompany the wife to the home where they encountered the petitioner mr coniglia on the porch of the house they spoke with mr kaniglia and they confirmed his wife's account of the argument according to the supreme court he denied at that time that he was suicidal they however thought that he was suicidal and they called an ambulance and they tried to get him to go to a psychiatric evaluation at a hospital and he agreed to do it but only after the cops promised him that they would not seize his weapons from his house after they promised him that they wouldn't seize his weapons then he he involuntarily you could say consented to go to the psychiatric hospital which brings up another potential video about whether or not at this point even going to a psychiatric hospital is going to affect you know your protections under the second amendment but that's another video so once a guy was on the ambulance the police went in and seized the weapons anyway so they seized the guy and they seized his guns it's not just the guns not just a guy but both they seized the guy and they seized the guns both out of his house so mr coniglia sues claiming that they violated his fourth amendment rights when they entered his home seized him and his firearms without a warrant the district court which is the trial court level federal court granted summary judgment to the police and that was appealed to the first circuit the first circuit affirmed that order solely on the ground that the decision to remove mr coniglia and to remove his firearms from the premises fell within what the court called a quote community caretaking exception to the warrant requirement now the first circuit according to the supreme court's decision here today saw no need to consider whether anyone had consented to the police officer's actions in this case or whether these actions were justified by exigent circumstances nor whether any state law permitted this kind of mental health intervention all that mattered was that the respondents efforts to protect the police officer's efforts to protect the petitioner and those around him were quote distinct from the normal work of criminal investigation so they claimed that because they were engaging in this alleged community caretaking function that that in and of itself meant that they did not have to have a warrant and they did not have to have consent nor did they have to allege and be able to prove that there was some sort of emergency or exigent circumstances they just used this broad phrase of community caretaking exception and i've had that used against me before as well and i've had to explain to courts sometimes unsuccessfully that no there is no community care taking exception there's only consent that has to be voluntary or an emergency or exigency that's it there is no community caretaking exception that came out of the world of automobile inventory searches of automobiles that following an arrest were already in police custody those did not apply to the home which is supposed to be the most highly protected place under the fourth amendment supposed to be our castle so that those were the facts now justice clarence thomas the greatest justice at this point that we have on the supreme court wrote this short decision and like i said i was surprised because if you watched or you can't watch but if you listen to the oral arguments in this case you heard all these questions about well shouldn't police if if they show up to a house and you know for instance a neighbor says that they haven't seen their neighbor in however many days shouldn't the police be able to like open the door and walk in and see shouldn't they be able to go in the house and there there was every indication that they were going to find that there was this this ability for police to you know without a warrant to go in our house and you know if they're you know subjectively serving the community but that's not really what happened in this case i mean they went in the house to take this guy and take his firearms and if we allow allow it in that situation you're allowing it in every other situation so this was a gun rights case because this ties in with all the red flag stuff because if you have these hostile anti-gun jurisdictions they can just send the cops to the house to say look we think this guy has mental health issues then they need to go in and they need to seize him and seize his guns or just seize his guns that's what all this red flag legislation is about but the supreme court threw justice thomas today and this was a unanimous decision meaning all nine justices liberal conservative middle of the road they all voted in favor of basically chastising law enforcement here no you can't do that even if you're doing it because you think somebody's suicidal it doesn't matter because we don't trust you because we don't trust law enforcement we don't trust because law enforcement is a government no we trust the law and the law is the fourth amendment that there are no intrusions on private property that are unreasonable there are few permissible permissible exceptions a warrant or consent or exigent circumstances otherwise you need to stay off of private property if you're law enforcement you can't come in to our houses you can do things that regular people can do but you can't come search our house without a warrant for sure so justice thomas wrote this decision and said no no no no the first circuit is way off base community caretaking exception had to do with automobiles it had nothing to do with vehicles or nothing to do with homes and the case that they relied on was this case called katie versus c-a-d-y katie versus where is it katie versus dombrowski 1973. that was a case where the supreme court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the fourth amendment and reaching that conclusion the court observed that police officers who patrol the quote public highways are often called to discharge non-criminal community caretaking functions such as responding to disabled vehicles or investigating accidents that's it see over the years law enforcement and other and the courts will take and take and take in all these criminal cases and they'll take something very small um for instance the you know terry search in the original terry versus ohio case and just turn it into where the exception swallows the rule and that's what they've tried to do here with the community caretaking rule to create this new exception for law enforcement to get around the difficult facts for them that they have to have a warrant or they have to show some sort of emergency or consent um but katie according to justice thomas and with whom all the other supreme court justices agree does not apply to the home it does not apply to the home katie's unmistakable distinction between vehicles and homes also places into the proper context its reference to community caretaking this quote comes from a portion of the opinion explaining that the quote frequency with which vehicles can become disabled or involved in accidents on public highways often requires police to perform non-criminal community caretaking functions such as providing aid to motorists justice thomas wrote but this recognition that police officers perform many civic tasks in modern society was just that a recognition that these tasks exist and not an open-ended license to perform them anywhere so what's reasonable for vehicles is different from what is reasonable for homes and katie from 1973 acknowledged that much and this court the supreme court repeatedly declined to expand the scope of exceptions to the warrant requirement to prevent warrantless entries into the home and that's pretty much it and then you had a concurrence from chief justice roberts with whom justice breyer joins and i'm not sure what the point of his was really but he you know they were kind of uneasy about this because you know they're such do-getters and they're they're worried that people will think that they're mean because what if they're there just checking on grandma does that mean that grandma can sue them and those were the questions actually asked if i recall correctly by chief justice roberts during the oral argument so he's worried about that so he goes in to explain that he voted in favor of of of mr coniglia here but he explained that a warrant to enter a home is not required as we've explained when there is a need to assist persons who are seriously injured or threatened with such injury now that's the exigent circumstances exception nothing in today's opinion he wrote is to the contrary and i join it on that basis so he's just pointing out that this is this is nothing new justice alito also wrote his own concurrence this had a little more substance to it and he said this the court holds i entirely agree that there's no special fourth amendment rule for a broad category of cases involving quote community caretaking because the breadth of the activities that may be described as community caretaking especially now in 2021 those are my words we should not assume that the fourth amendment's command of reasonableness applies in the same way to everything that might be viewed as falling within this broad category the court's decision in katie versus dombrowski from 1973 did not recognize that there was any freestanding fourth amendment category the opinion merely used the phrase community caretaking and passing secondly alito wrote while there is no overarching community caretaking doctrine it does not follow that all searches and seizures conducted for non-law enforcement purposes must be analyzed under precisely the same fourth amendment rules as were developed in criminal cases those rules may or may not be appropriate for use in various non-criminal law enforcement context and that's where you're going to get into your social workers and the health department fascists and all that doesn't mean that the fourth amendment apply just means that the reasonable the the case law on reasonableness could be different or will be maybe different thirdly he said that assuming that the petitioner mr coniglia did not voluntarily consent to go with the officers for a psychological assessment he was seized and thus subjected to a serious deprivation of liberty but was this warrantless seizure reasonable now the reason he said that he voluntarily consent is because they lied to him to get his consent and that's also known as fraud you know and intentionally misrepresenting the facts in order to induce somebody to do something that they otherwise wouldn't necessarily do that's fraud that's what these officers did here so any anything obtained by fraud as most of us know is arguably invalid so the what they're talking about here is the consent of the seizure of his person to go to a psychiatric evaluation in a hospital was not voluntary and therefore was not valid consent as an exception to the fourth amendment warrant requirement so what alido is saying here is that you could have all these different state laws about like involuntary commitment or for instance in florida the baker act and those weren't really discussed here or decided here because when they follow those rules they have to follow due process there's going to be already due process in place for you know the baker act process or the involuntary commitment process or the mental hygiene process as we call it here in west virginia and that wasn't really before the court here law enforcement and the law enforcement bureaucracy was just standing on what they thought their rights were and that was this mysterious so-called third exception to the warrant requirement known that they had been referring to as the community caretaking doctrine and this posed a threat to all sorts of things and to all of us and that's why you saw everybody from the aclu to the goa the gun owners of america filing amicus briefs friend of the court briefs here all basically agreeing that the court needs to stand up for for the fourth amendment here for the rights of of citizens to be free in their home from governmental intrusion and to not allow this this broad you know community care taking exception which could be misused in any number of ways so pretty short opinion i put well i didn't put the link and because this is the second video i've tried to create here but i will put the link in the to this to this opinion in the description so that you can read it yourself there you know there also was another case accepted for review by the us supreme court which i'm interested in now they haven't ruled on it yet and this is not a search and seizure case it's an excessive force case this is another one that i'll i'll i'll follow and you should too it's called lombardo versus city of st louis now this is we all know about the george floyd case but this is somewhat similar the case involves a claim of excessive police use of force that were brought by the parents of this guy nicholas gilbert who died while in police custody now they contend jody lombardo and brian gilbert contend that a reasonable jury could have found that officers who knelt on this guy nicholas used excessive force when they put him at a time that he was both handcuffed and shackled onto the ground face down and pressed into his back until he suffocated now the eighth circuit held as a matter of law that the officer's actions were not excessive force because this guy gilbert's conduct could legitimately have been interpreted as resistance and i've put this in my excessive force files that i'm interested in under where is it under the you know passive resistance or very slight resistance case law and i get a lot of questions about these i get a lot of cases like these where there's you know there's there's arguably some resistance you know stop resisting stop resisting but if you were to watch a video of it you don't really see any resistance you would kind of have to take the officer's word for it and we all know what happened to george floyd whether or not he died of asphyxiation or some combination of that in his drugs i have no personal scientific idea now it's generally been against policies or advised against to do these sorts of things to put people face down and then potentially asphyxiate them by putting pressure on their back or their neck things like that applying pressure to a person's back once he's been handcuffed legs are strained and there are cases out there finding that this is constitutionally unreasonable this is excessive force i think there's several circuits sixth circuit even the first circuit the ninth circuit have all held these things but what you had here was the the eighth circuit kind of going against this so we had a split in the circuit so the eighth circuit said that look just kneeling on somebody's back that's not that's not excessive that's not even really a use of force therefore as a matter of law we're gonna find that even though this guy died even though this guy died that's not excessive force so kind of a crazy crazy uh factual circumstance that's very similar to the george floyd case and look at the disparate outcomes between floyd and what you have in this lombardo case so i'll be following that one but there are here's kind of the split of circuits that you can look at when it goes to this sort of you know having somebody prone if because an excessive force to get around qualified immunity with these lawsuits you have to point to prior cases you have to point the prior case law that would have put police officers on notice that what they're doing is unconstitutional you had a seventh circuit case called abdullahi abdullahi that involved a man who was acting aggressively allegedly while being arrested kicking his legs moving his arms so he could not be handcuffed and arching his back seventh circuit held that a reasonable jury could find that pushing on his back for 30 to 45 seconds was excessive so very very contrary that's the seventh circuit then you have the 10th circuit there's a weigel case that involved in their words a dangerous tussle with a suspect who after being handcuffed and bound continued to struggle and fight as an officer pushed into his back now that's the tenth circuit you have another case from the sixth circuit hopper involved the 22-minute struggle that waxed and waned in intensity that's a quote the person was suffering a medical emergency inside his cell and he kicked and thrashed while being held down the sixth circuit denied summary judgment to the police officers so there appears to be a split in the circuits absolute split in the circuits it's really the eighth circuit that is going away from the general consensus that if you pin somebody down who's restrained and they die it definitely can be excessive force there was an amicus brief filed by i thought it was pretty interesting and i pulled it filed by what they called the themselves the policing scholars i guess it's a bunch of lawyers and law professors who practice this sort of law and they really just got very dramatic about it in their in their amicus brief to the supreme court and said look you've got to nip this in the bud and they talk about george floyd and all this sort all this sort of thing so we don't need to get into all of that but it's always a a confusing situation for lawyers judges and litigants where you have this sort of this sort of use of force that can can be deadly but it doesn't involve striking or punching or kicking it just involves maybe a little bit of weight and then you know assuming that there's you don't have these toxicology issues like you had in the george floyd case there can be a whole lot of confusion there so it would be great in my opinion if the supreme court did nip this in the bud and say look you know if you're if you're going to put somebody prone and put them in handcuffs and shackles i mean that's your baby if they die and you know to the contrary i mean to say that as a matter of law that can't even go to a jury that is outrageous and the supreme court should overturn the eighth circuit in that case so it hasn't been up for hearing yet and uh hopefully it will see some action before the supreme court again that is lombardo versus city of st louis that's one i'll be following so some updates and my cases that have a lot to do with the supreme court case that was issued today so the family court the family court judge search case here out of west virginia and a lot of people have been following that case just briefly that's where a west virginia family court judge searched my client's house personally with law enforcement in tow and allowed the ex-wife to come in and take this that and the other thing um literally from right then and there out of the house that gets on youtube goes goes viral the judge gets charged by the judicial disciplinary folks and here is where it's really really spun out of control i've talked about this before but you know you have the disciplinary proceeding which has sort of gone sideways at this point it's headed to the west virginia supreme court and we went ahead and filed a federal civil rights lawsuit for violation of the fourth amendment against the judge against all the law enforcement involved against the county that employed the law enforcement who were there including the bailiff and also against the ex-wife's lawyer for a a conspiracy by a private actor conspiracy with a public official to violate my client's civil rights so before i get to the litigation update let's look at an update that just happened in the last day with the with the disciplinary proceedings there was a newspaper article that just came out from the west virginia record dealing with the family court judicial association who is now like trying to pull a biden in ukraine and go around the judicial process and get the prosecutor fired absolutely crazy here's the story family court judicial association plans to ask supreme court to fire disciplinary counsel this is nuts morgantown west virginia west virginia's family court judicial association plans to ask the state supreme court to fire the state's top judicial disciplinary council according to several members of the association the membership voted this week during the spring 2021 meeting in morgantown to request the termination of teresa tarr who is the absolutely fabulous judicial disciplinary council who's been taking this judge to task none of the members would speak on the record regarding the vote of course not now does this piss you off or what it does mean you have this cabal of family court judges who are elected politicians who are meeting privately in morgantown west virginia who even knew that this happened their meeting privately in discussing pending cases including disciplinary actions against a judge absolutely outrageous and they're voting on asking the state and leaking to the media and trying to get the prosecutor fired while the case is ongoing that's absolutely outrageous absolutely outrageous none of the members would speak on the record i bet they wouldn't but all of them confirmed the vote did occur one said the vote included almost 40 members and that well more than half maybe two-thirds of the members voted to request tar's termination so what are they asking for here they want family court judges to be able to search people's house things that even the superior judges the non-family court judges can't do they're a court of limited jurisdiction a creation of the legislature and now they're trying to run away with their own rules absolutely tyrannical the supreme court said no public documents have been filed regarding the situation last month a family court judge was a member of the state judicial hearing board asked the state supreme court to investigate the conduct of judicial disciplinary council i believe it's evident that the jdc does not believe that they are answerable to anyone for their actions their conduct or their practices glenn stotler wrote he's a family court judge a sitting one in a march 25th letter obtained by the west virginia record to state supreme court chief justice evan jenkins quote i truly hope the supreme court takes this matter seriously in direction that an immediate investigation be conducted i believe the conduct of the jdc's attorneys is of such nature to warrant their termination or at the least a serious reprimand stotler is a family court judge in the 23rd family court circuit that includes hampshire mineral and morgan counties west virginia he's the family court member of the jhp having been appointed to the position by the supreme court in february 2020. he was appointed to the bench in 2011. now i was at that hearing via zoom when judge stotler absolutely expressed that he didn't feel that there was anything wrong with a family court judge and he is a family court judge searching somebody's house without a warrant and without consent that's absolutely outrageous judges do not search houses judges do not search houses judges do not search houses judges issue orders this family court judge had already admitted in writing that she screwed up that she violated all sorts of different rules and laws yet now they've got this private cabal who won't go on the record won't put anything in writing yet they're leaking to the news media to try to get the prosecutor fired i mean you can't make this stuff up where's john grisham he needs to write a book on this i mean west virginia was famous in the past for some of our judges he wrote a book on corrupt judges in west virginia and we just had half of our supreme court like go to prison or get charged by the feds and get impeached by the legislature and now the family court judges are asking for it you know what they need to be impeached how about that how about that they need to be impeached if they're going to do that if this is true if this story is true where is the rest of the media looking at this this is absolutely outrageous so yeah the family court judge search case is getting more exciting by the day now what's happening with the litigation itself well they've all filed motions to dismiss the judge filed a motion to dismiss of course which was expected based upon judicial immunity was which is absolute immunity and i've already responded to that and we're just awaiting the court decision the deputies that were involved the law enforcement involved they filed a motion to dismiss i've already responded to that it was all it was all somewhat routine except for the the judicial immunity i don't know what's going to happen with that but we should be able to get i hope through a motion to dismiss if not we'll appeal it to the fourth circuit for sure i would say i hope we get past the motion to dismiss point but again since judges do not search homes this case has really never happened before and then also the county commission had filed a motion to dismiss as well so i and the lawyer filed a motion to dismiss saying he wasn't he he wasn't served even though we have a return of service by the processor we're saying he was anyways motions to dismiss pending in that case just waiting for a ruling on the court and i can't wait to to get the ruling and see what it says so that's the update on the family court judge search case the other case i want to give you an update on was the putnam county drug task force search case somebody asked me this weekend about an update on that case nothing really exciting they were all served friday was the date their deadline to file their answers so one answer was filed by one of the officers a guy named lockhart the rest of them the rest of the officers that were served filed motions to dismiss saying they weren't properly served now here's here's the funny ironic thing about that you know how i had them served of course their deputies in putnam county west virginia putnam county west virginia is obligated to provide personal service if i pay them to do it so i sent the summons and the complaints to the putnam county sheriff's department and i paid them to serve their own employees and they did that and they they sent back returns of service now two of the returns of service the process server who was paid to do a job wrote on there i put it on their mailbox i put in their in their police officer department mailbox one of them and and the rest of them did not just said i personally serve them now there are three the officers are trying to get the case dismissed because putting it in their mailbox even though they got it isn't proper under the rules according to them you know what i paid the county for personal service and if they didn't provide personal service then you know what they maybe they'll get sued again that that's just absolutely ridiculous now look isn't it funny how some of these guys you know there's blood in the water when that is how they fight these cases like they don't even want to get to the substance they don't want to get to the merits they're going to fight service you can't put it in my mailbox you know how i used to do these cases most of them i just i just send them to them and they give them to the lawyers the lawyers do their thing very rarely do i even have to track them down but they're they're gonna make me go through every little step but you know what that puts a smile on my face that's why i know that i'm i'm just like the shark cruising you know cruising in the shallows and there's a blood trail a thick one so that's exciting to me and so i'll respond to those we can litigate however much they want because you know why with civil rights cases section 1983 cases the more time they make me spend guess what the more money they're going to have to pay so that's basically all that's going on with that case and they're about to get sued with a on behalf of some other plaintiffs with the same the same drug task force for other victims of them so they've they've got they've got a lot of uh litigation ahead of them so that's pretty much what's going on in the drug task force case as far as other things going on just briefly i'm looking at filing lawsuits regarding the vaccine you know mandating the vaccine and i don't need to go this is mostly another video but just briefly i'll go over the fact that well you know what this will probably get this video demonetized so maybe i'll make another video for that but you know read if you read the law and and you know no one can disagree with the law no one can disagree with with what the law says if you look at the emergency use authorization so long as the vaccines are emergency use authorization then a requirement a requirement of that eua is that these vaccines can't be mandated that they're not being mandated so under federal law it prohibits mandating products that are granted an emergency use authorization and that's codified federal law section 564 of the federal food drug and cosmetic act codified at 21 usc 360 bbv3 so it says that the public has the option to accept or refuse administration excuse me of the product it even provides that the secretary of health and human services has to quote ensure that individuals to whom the product is administered are informed of the option to accept or refuse administration of the product and then you have now all these companies mandating and i've talked to many people so far definitely looking at some lawsuits that may be imminent because you have these employers private employers mandating vaccines in violation of federal law really with no exceptions so that's probably for another video but that's something that's going on right now and i'm working with some other civil rights lawyer lawyers and potentially filing some lawsuits in the very near future on this fact so anyways sorry i couldn't get to my regular live video but that is that's what happened with the supreme court here recently some exciting and some good news finally and that's what's going on with with these two cases which are also similar search and seizure cases so hopefully i'll i'll get my internet connection back up and going and and make another live video maybe i'll do another one now before next monday but in any event hopefully i'll be on as scheduled next monday night and i've pushed it back to seven o'clock just because i'm so busy and it's so beautiful outside as well and i have all my other activities i'm getting to so so contact me at check out the website thecivilrightslawyer.com my regular email address is on there and all that all that stuff so if you have cases you want me to look at i only practice in west virginia but i look at stuff from all over i love to hear from you so the civil rights lawyer dot com thanks for watching [Music] you