Thursday, March 19, 2015

Alabama cops apparently don't mind ignoring Fourth Amendment law when making dubious traffic stops

An Alabama sheriff's deputy used an unconstitutional traffic stop to initiate my October 2013 arrest, adding to the growing number of grounds by which my five-month incarceration was unlawful. Did the deputy have reason to know he was acting outside the law? Well, he violated a U.S. Supreme Court decision that has been in place for 30 years.

I was the only journalist in the western hemisphere to be incarcerated in 2013, drawing national and international news coverage that focused largely on violations of free-speech rights under the First Amendment. But the actions of Shelby County deputy Chris Blevins trample the Fourth Amendment right to be free from unreasonable searches and seizures--and Blevins' acts should be disturbing to every American who drives, or rides in, a vehicle. To make matters even more disturbing, Blevins was not the first Alabama law-enforcement to conduct an unconstitutional traffic stop against my wife and me during roughly a three-week period in fall 2013.

I raised the traffic-stop issue at my resisting-arrest trial in January 2014, trying to show that I could not resist an arrest that was unlawful, on multiple grounds, in the first place. But District Judge Ron Jackson claimed Blevins was making a "pick-up stop," based on a warrant for my arrest, and therefore was not subject to Fourth Amendment provisions. Jackson, as seems customary for Shelby County judges, cited no law to support this notion--and my research indicates there is nothing in the law to support it.

Do citizens pay a price for that kind of judicial arrogance and incompetence? The answer is yes, both literally and figuratively. Jackson found me guilty of resisting arrest and imposed an $845 fine. My picture was on the Shelby County "Most Wanted" list for months, long after the fine had been paid in April.

Where does one go to have his reputation restored when it has been trampled by rogue officers, prosecutors, and judges. We've already shown that Circuit Judge Claud Neilson issued a preliminary injunction in a defamation case against me (brought by Republican political figures Rob Riley and Liberty Duke), violating roughly 230 years of First Amendment law. We've shown that prosecutor Tonya Willingham brought a resisting-arrest charge against me even though Jackson ordered her to produce any warrants for my arrest, and she responded, "Your Honor, we have no warrants."

As it stands now, the public record indicates Blevins entered the garage underneath our house, knocked me to a concrete floor three times, maced me in the face, dragged me to the driveway, handcuffed me and tossed me in the back of a police cruiser--all without having a warrant. (This apparently violates a U.S. Supreme Court precedent styled Payton v. New York, 445 U.S. 573, 1979; more on that case coming in future posts.) The record also indicates officers were trying to arrest my wife, but apparently were unwilling to knock down our front door to get at her in an upstairs bedroom.

This is unlawful enough to boggle the mind, but the problems really started when Blevins honked his horn in the driveway and forced me to stop our car.

How do we know that Blevins acted in an unconstitutional matter? Well, it isn't easy to make such a determination because traffic-stop law is murky; it's mostly enforced at the state level, but it is grounded in federal law--especially the Fourth Amendment, under which a traffic stop is considered a "seizure."

In general, an officer can stop a vehicle under two circumstances: (1) He witnesses a violation of traffic laws, which can include moving violations or issues related to a vehicle's condition; (2) He has reasonable suspicion to believe an occupant in the vehicle is involved in criminal activity.

We've already established that Blevins' actions constitute a traffic stop under the law. He drove his police cruiser down our driveway as I was coming home and trying to pull our car into the garage. He activated his horn/siren and emergency lights to get my attention, forcing me to stop. Blevins' own words from his incident report (see report at the end of this post) show that he was conducting a traffic stop:

I observed Mr. Shuler traveling toward his home at 5204 Logan Drive. Mr. Shuler pulled into his driveway, and I drove in behind him. I used my vehicle's air horn to get Mr. Shuler's attention, and he stopped his vehicle in front of his garage.

Blevins' own words describe a "show of force" that caused me to stop and be detained--meaning this was a traffic stop, as described in "The Law of Traffic Stops (Keyed to Alabama Law)," by Montgomery attorney Patrick Mahaney.

Did Blevins have lawful grounds to stop my vehicle? For guidance, we first turn to a case styled Whren v. United States, 517 U.S. 806 (1996), which holds:

An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

Could Blevins stop my car because he had probable cause to believe I had committed a traffic violation? The answer is no. Blevins' never stated to me that I had violated any traffic law and never made any mention of writing a ticket or warning. His own words in the incident report make no mention of an alleged traffic violation.

Since Blevins fails under the Whren test, we must turn to his second option--a case styled United States v. Hensley, 469 U.S. 221 (1985), which is 30 years old and holds:

Where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation but might also enable the suspect to flee and remain at large. The law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes. When police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.

Hensley grew from an armed robbery in the Cincinnati area, where police issued a "wanted flyer" for the driver of the getaway car. Based on the wanted flyer, police eventually stopped a vehicle, and the U.S. Supreme Court found the stop lawful because officers had "reasonable suspicion" that the person was "wanted in connection with a completed felony."

Was I wanted in connection with a completed felony? Heck, I wasn't even wanted in connection to a crime. I was wanted because of a contempt of court order based on an unlawful preliminary injunction in a defamation lawsuit.

As noted above, traffic-stop law can be tricky. For example, four federal circuits have extended Hensley to apply to cases of suspected misdemeanors. But I wasn't suspected of a misdemeanor, not even jaywalking.

Every state-law case that I've seen acknowledges that traffic-stop law, by definition, is grounded in the U.S. constitution--specifically, the Fourth Amendment. And I've yet to see a case that cites federal law to say it's OK to conduct a traffic stop on an individual who allegedly has an arrest warrant in a civil case that involves no allegations of criminal activity.

The word "allegedly" is important here because, the public record at the moment, indicates Blevins entered our home without an arrest warrant--and I've neither seen nor heard anything from him or prosecutor Willingham to show that a warrant existed at all.

What can we take from this? Perhaps its best to turn to an article titled "Alabama Journalist Jailed for Contempt Under Political Stench," which was published on January 15, 2014, at photographyisnotacrime,com (PINAC), a Web site that Miami multimedia journalist Carlos Miller started in 1997. PINAC opposes efforts to limit the public's ability to chronicle police activities.

Reporter Andrew Meyer notes that my case raises troubling issues about the First Amendment (right to a free press), Fourth Amendment (right to be free from unreasonable search/seizure), Fifth Amendment (right not to be deprived of liberty without due process of law), Sixth Amendment (right to a trial by jury), and Fourteenth Amendment (right to due process and equal protection).

Concludes PINAC's Meyer:

Shuler’s story might set the record for amount of constitutional rights casually broken in one case.

Perhaps more than any other journalist I'm aware of, Meyer understands that my case goes way beyond the First Amendment violations--as important as those are. These are violations that should trouble every American, even those who have no interest in ever practicing journalism or writing a blog.

Have you ever driven, or ridden in, a vehicle? If so, these issues should matter to you.


Anonymous said...

Sounds to me like there is enough murkiness in the law that cops just stop cars whenever they feel like it--with the idea that they will get away with whatever they do 99 percent of the time.

Anonymous said...

I'm going to start feeling vulnerable when I drive in my SUV. Used to worry about "undesirables." Think maybe I need to start worrying more about cops.

Bucko said...

Somebody wanted you arrested so badly that they cops just said the hell with the law and the rules.

Anonymous said...

Still don't understand why the deputy didn't show you the warrant, assuming he had one. That seems like such an easy thing to do.

legalschnauzer said...

Agreed, @4:57. And I still don't understand why an asst. DA, prosecuting a resisting-arrest case, wouldn't have a copy of the warrant to enter as evidence. It seems so easy to do. And once entered, it goes to whether the arrest was lawful or not.

Anonymous said...

You cite United States v. Hensley, 469 U.S. 221 (1985) as proof the traffic stop was illegal, but it has a different set of facts than your case. United States v. Hensley is referencing a Terry Stop. A Terry Stop, also known as a stop and frisk, is a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest. If a warrant existed, there is already probable cause to make an arrest and a Terry Stop wouldn't even be an issue.
Not having the warrants and them never existing are two totally different things. Did you ask Judge Neilson if he issued any warrants? He seemed to know you were in jail and approved of it, because he ordered you to stay until the posts were removed.
Would you agree that a warrant can be issued for someones arrest on contempt of court?

legalschnauzer said...

I disagree with your analysis. Hensley does reference a Terry stop, but it also references a detention in general. I think you and I would agree that I was detained. Hensley says such a detention, in absence of a traffic violation, is only proper with reasonable suspicion of involvement in a felony. As I state in the post, some circuits have extended Hensley to include misdemeanors. But I was not alleged to have been involved in a crime at all, so under the Hensley test I should not have been stopped.

You've given me your opinion, but you've cited no law to support it. That's because, I think, you can't find any.

I don't say that to knock you. As noted in my posts, this seems to be a murky area of law. The facts surrounding my situation might present a "case of first impression," I'm not sure.

I've seen a line of state-law cases, which reference federal cases, and more or less say: "A person should be free from interference in his automobile, except when a crime is involved, and it should be a fairly significant crime--either a felony or a misdemeanor where public safety is an issue. Otherwise, a person wanted on a warrant should be picked up at his home and not stopped in the traffic environment. To make such a stop violates the Fourth Amendment and is not reasonable." I'm paraphrasing, but that seems to be the general idea.

As for the warrants, I can only repeat what I've already said: It's a matter of public record that the prosecutor was instructed by a judge to produce them and she said she didn't have any. I was standing right next to her. For purposes of that court case, the warrants didn't exist. She was told to put them into evidence, and she didn't. How can they not exist in that case and exist in another. I'm not sure.

As for Neilson, I've only laid eyes on him once, and I was shackled and chained from head to toe. I wasn't in a good position to ask him much of anything, especially since the hearing in question didn't really involve warrants etc. Yes, he knew I was in jail and approved of it, but that doesn't mean he signed any warrants. I guess I'm using the argument on you that you used on me.

My main question at the hearing was, "Why isn't this case being handled according to Near v. Minnesota, which clearly is the guiding First Amendment case--and under which, there could not be a preliminary injunction and an arrest warrant for me."

Neilson said he had heard of "Near," but did not say why he was ignoring its findings.

Yes, I agree that someone can be arrested for contempt of court, and it most commonly is used in cases where child support has not been paid--where it has a proper coercive effect. Here, I couldn't be coerced into curing the alleged contempt, because I was in jail with no computer/Web access, which is another reason the whole thing was unlawful.

My issue isn't that someone can't be arrested for contempt of court. My issue is that I believe the traffic stop used in the case was unconstitutional--and more importantly, under "Near," I never should have been subject to arrest at all, meaning the arrest itself was unlawful from the outset.

Anonymous said...

Whether the warrants issued by Judge Neilson were legal,or not, isn't Deputy Blevins concern. A law enforcement officer must take a warrant at face value. Whether or not the Judge has a right to issue them is irrelevant as long as it appears to be a legitimate warrant the officer has the duty to arrest. I don't agree you were detained, you were arrested.

legalschnauzer said...

Yes, I was eventually arrested, but I was originally detained by the traffic stop, my freedom of movement restricted. The arrest was unlawful under long-held First Amendment law, and I gather even you agree with that.

You state that the legality of the (supposed) warrants is not Officer Blevins concern, but again, you offer no citations to law supporting that.

Did Blevins know that the (supposed) warrants were somehow defective, and he went ahead with the arrest anyway? Did he know that no warrant existed at all, as the public record currently suggests, and he conducted the arrest anyway?

Depending on the answers to those and other questions, they very much could be Officer Blevins' concern.

That doesn't even address Officer Mike DeHart and his clever way of violating the Fourth Amendment by concocting a bogus traffic stop, and then unlawfully extending it, to serve us with court papers.

Because of that, Neilson never had lawful jurisdiction to issue a warrant--and Blevins had no lawful grounds to be on our property, much less inside our house.

Robby Scott Hill said...

In the old days, they could break your printing press or copier &/or your fingers & you were effectively out of business. The proliferation of Internet connected devices & voice recognition is a real problem for them. They can't break your fingers & cut out your tongue & still be considered honorable men. That doesn't work for them. They must fabricate numerous Mickey Mouse charges that will cause the average joe to think "Well, if he's done all that, he must be a bad person." This was planned by partners at a long established law firm with people on staff who used to work in an intelligence agency & still talk to their former co-workers. That's how they set this up & got away with it. The Fusion Center in Montgomery allegedly exists to protect everyone from terrorists, but its real mission is to facilitate operations to achieve political ends, like what happened to you. Fusion Centers may be one of the greatest threats to our liberties since "Yankee Troops occupied Huntsville in 1862." as the conservative, state's rights nut jobs who jailed you like to say.

legalschnauzer said...

Interesting comment, Rob. If I had to guess at the law firm you have in mind, my top two candidates would be Capell & Howard (Montgomery) and Bradley Arant (Bham). My big question is: Why did they do this? What story had I written, or they thought I was about to write, that would make them do something this extreme?

I have some definite thoughts about that, considering the timing, etc.

Also, is the Alabama State Bar providing cover for them, instructing its members to make sure the facts about this never come out and no one is held accountable?