Wednesday, March 18, 2015

Unconstitutional traffic stops became Alabama cops' No. 1 tool in the days leading to my arrest for blogging

My arrest and incarceration in 2013-14 has been widely reported as unlawful under the First Amendment--and that is correct. But it also violates the Fourth Amendment right to be free from unreasonable searches and seizures--and it does it on multiple levels.

Police misconduct might be the biggest news story of the past six months or so. Disturbing incidents in Ferguson, Missouri; New York City, and Madison, Alabama, have made international news and caused even some conservative, "pro police" citizens to ask, "What's going on with our cops?" I've certainly had cause to ask that question after watching Shelby County, Alabama, officers repeatedly abuse their right to "show authority"--a process that ended with me being assaulted in my own garage and hauled off to jail, with mace dripping all over me.

Perhaps I'm best known as the only U.S. journalist to be arrested in 2013, and I suspect most citizens quickly understand that involves matters of a free press under the First Amendment. The Fourth Amendment violations might be harder to grasp, but in many ways, they are even more disturbing--maybe because they bring you face to face with officers who are violating the law they are entrusted to uphold.

Why is that so unsettling? Not everyone is a journalist or a blogger, but almost all of us drive or ride in automobiles at some point. Law enforcement has frightening power to abuse citizens in what is supposed to be the relative security of their vehicles. Such abuse is present all over my case--both while my wife and I were driving to a nearby library and while I was trying to drive down our driveway and into our garage about three weeks later.

In both instances, we were subjected to traffic stops that violate the Fourth Amendment--and that means the stops and all actions flowing from them, including my arrest and incarceration, were unconstitutional.

What is the applicable law? It starts with a U.S. Supreme Court case styled Terry v. Ohio, 392 U.S. 1 (1968), which set the framework for traffic-stop law at the federal and state level. From that grew a case styled Whren v. United States, 517 U.S. 806 (1996), which held that a traffic stop is a "seizure" under the Fourth Amendment--and that puts a significant burden on any law-enforcement officer who is thinking about stopping a vehicle. From the Whren opinion:

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures." Temporary detention of individuals during the stop of an automobile detained by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. [Citations omitted].

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.

That brings us to the first of two unlawful traffic stops to which the Shelby County Sheriff's Office subjected my wife and me. It came on September 29, 2013, and we already have presented powerful evidence that Officer Mike DeHart concocted a bogus violation (rolling through a stop sign) in order to serve me with court papers in a lawsuit brought by Republican political figures Rob Riley and Liberty Duke. Even if the traffic stop had been legitimate at the outset, and it almost certainly was not, DeHart violated the Fourth Amendment by extending the stop for an improper purpose, violating long-established law that is outlined in a case styled United States v. Simms, 385 F. 3d 1347 (11th Cir., 2004).

As for the second unlawful traffic stop, it came on the evening of October 23, 2013. Thankfully, it directly involved only me, not my wife; she was taking a nap in an upstairs bedroom, unaware her husband essentially was being kidnapped in the garage two stories below.

I had spent most of the afternoon at a library and was on my way home after grabbing a quick bite for dinner. Unbeknownst to me, Deputy Chris Blevins was waiting for me. He was sitting in a marked police vehicle, parked on a street (MacIan Lane) that runs perpendicular to ours (Logan Drive)--about 100 yards from our house.

As I turned left onto our street and prepared to pull into the driveway at 5204 Logan Drive, Blevins started to follow me. I was waiting for the door to fully rise before pulling into our garage, when Blevins drove down our driveway and activated a siren/horn and his emergency lights.

I was in my vehicle and had just come off the roadway; he was in a vehicle and had just come off the roadway. This was a traffic stop, a seizure under the Fourth Amendment, as outlined in a case styled United States v. Purcell, 236 F. 3d 1274 (11th Cir., 2001).

How else do we know this was a traffic stop? Well, a simple check of the "traffic stop" entry at Wikipedia tells us. It states, in part:

A traffic stop, commonly called being pulled over, is a temporary detention of a driver of a vehicle by police to investigate a possible crime or minor violation of law. . . .

A stop is usually accomplished through a process known as "pulling over" the suspect's vehicle. Police vehicles (except those used by undercover personnel) traditionally have sirens, loudspeakers, and light bars that rotate and/or flash. These devices are used by the officer to get the attention of the suspect and to signal that they are expected to move over to the shoulder and stop.

We also can check an article, titled "The Law of Traffic Stops (Keyed to Alabama Law)," by Montgomery attorney Patrick Mahaney. Writes Mahaney:

The regulation of movement of vehicles on the highway by law enforcement is continually scrutinized under Fourth Amendment standards. The police use of emergency lights, police siren, or other indicia of authority to direct a motorist to pull over and come to a stop, which may include simply pointing to a motorist and giving direction by hand signal for the motorist to stop, reviewing courts have consistently held such police actions squarely falling within the concept of "show of force." . . .

Consistent with prior opinions of the Supreme Court, any show of force by a law enforcement officer, to include the use of police equipment to indicate to a motorist to stop, even a law enforcement officer's hand gesture to a motorist to pull over, places the burden of Constitutional reasonableness on the government. Such actions are customarily termed a "seizure" under the Fourth Amendment.

Blevins used his lights and siren as a "show of force" that caused me to stop and be detained. This, by legal definition, was a traffic stop. For good measure, Blevins admitted at my resisting-arrest trial that his actions constituted a traffic stop.

Did Blevins meet his burden of "Constitutional reasonableness" when he stopped my vehicle? In other words, did he "have probable cause to believe that a traffic violation had occurred"?

The answer to both questions is no. And that has profound meaning for my arrest and the five months I spent in jail--all of which was unconstitutional under the First Amendment AND the Fourth Amendment.

(To be continued)


Anonymous said...

I wonder how many times good-looking women get stopped just so a cop can scope them out.

legalschnauzer said...

I think that happens all the time. In fact, I've been told by more than one source that the I-65 corridor in Shelby County, leading into Birmingham, is prime territory for attractive young women to get stopped if they are traveling alone.

Chuckles said...

Is that called "driving while babelicious"?

Anonymous said...

These comments remind me of Christie Brinkley driving the red sports car in "Vacation." She would have gotten stopped by state troopers every 30 feet.

Anonymous said...

So this cop was staking out your house?

legalschnauzer said...

Yes. One can be seen staking out our house in the video of my arrest. But 2-3 other vehicles appeared within minutes, so they must have been nearby also. These are your tax dollars at work, all over a preliminary injunction that was unlawful to begin with.

Bev said...

This is educational, LS. I must admit I've never given much thought to traffic-stop law because, I guess I've assumed I never would be stopped unlawfully. Maybe I shouldn't make that assumption.

Anonymous said...

I know a little bit about law enforcement, and I'm astonished that a cop was staking out your house to serve a warrant in a civil matter. This is the kind of thing police might do for a suspected dealer in a high-profile drug investigation. That they did this, tells me they were determined you were going to be arrested THAT NIGHT. They weren't going to let it drag on for several days.

legalschnauzer said...

You make a very interesting point, @5:07. I would love to know how long Officer Blevins was staked out at his position near our house. Was it 30 minutes, one hour, three hours? I don't know.

This makes me think someone powerful was behind all of this. Rob Riley is fairly powerful, but I'm talking about someone quite a bit higher up the food chain than him. I think Rob Riley was taking directions from someone else because the record shows he never had any intention of taking his defamation claim to a jury trial, as normally is the case.

This was all about intimidation; had nothing to do with defamation, in my mind.

Anonymous said...

You mention police misconduct in Ferguson, Missouri, but the officer was cleared by the DOJ. That means he acted appropriately and there was no misconduct.

To your question "did he "have probable cause to believe that a traffic violation had occurred"? He wouldn't need a traffic violation because he had a warrant.

legalschnauzer said...

You're mistaken on several fronts, @5:35.

* The Ferguson case is far from over, and it goes way beyond Officer Wilson. The DOJ declined to bring charges against Wilson, but it also outlined numerous examples of misconduct among police and city officials against the black community. The Brown family has brought a wrongful death lawsuit, and we will see what information that brings forward. Plus, the DOJ report issued this month found that police officers in Ferguson routinely violated residents' constitutional rights, so your claim about lack of misconduct is wildly off base.

* As for your statement regarding a warrant in my case, there never has been any proof that Officer Blevins had a warrant. Videotape of my arrest proves he never showed a warrant or said he had a warrant. When a judge told prosecutors to produce the supposed warrant, they couldn't--said, "We don't have a warrant, Your Honor."

* Finally, you don't seem to be familiar with actual Fourth Amendment law--as I notice you don't cite any. Even if Blevins had a warrant, my research of the law shows that you cannot conduct a traffic stop to execute it if there has been no traffic violation involved, and it's not a criminal matter. More on this in a followup post tomorrow.

Summary: If you can find state or federal law that supports Blevins' actions, please let me know. I think you are going to have a hard time doing that. Otherwise, you are mistaken across the board.

Anonymous said...

You have quoted Mrs. Willingham repeatedly and if you look back through your posts the quote changes, so technically it isn't a quote. Your presuming that there was no warrant because Mrs. Willingham did not have a copy. My bet is the judge entered a bench warrant (right or wrong, we're not talking about that right now) and it was sent to the Sheriff's Office for service. Just because the D.A. didn't have a copy doesn't mean it did not exist. The fact that you were taken before a Judge on Nov 14 and the Judge told you he would leave you in jail until you had the posts removed, suggests he had you arrested.

As to needing a traffic violation to stop a vehicle, do you honestly believe that a warrant doesn't five you the right to stop a vehicle? A warrant allows the seizing of a person. If Deputy Blevins saw the person listed on a warrant, he has every right to seize them. A warrant would have also given him the authority to enter your home to make the arrest. Sorry, but that's not unreasonable and therefore not a violation of the Fourth Amendment.

legalschnauzer said...

Two points:

* Ms. Willingham's statement was that she didn't have a warrant, and a judge told her to produce one--and apparently she would have been given time to go find one. I certainly would not have objected if she had requested a recess to go get the warrant.

I haven't made any assumptions; I've said that it's a matter of public record, based on info we have now, that there was no warrant--either that, or Ms. Willingham knowingly withheld evidence. It's not a matter of what you bet or what you think Judge Neilson's actions suggest.

There should be a transcript of my resisting arrest trial, and you are welcome to go check it yourself to see Ms. Willingham's statement. While you're there, ask for a copy of the arrest video, and I would be happy to run it on this blog.

A judge told the ADA to produce a warrant, and she said she didn't have one. That's what I've reported, and it's been accurate all along. I can't think of an excuse for an ADA, seeking to prosecute someone for resisting arrest, not being able to produce the relevant warrant, if it exists. My trial, with a real judge, should have ended with an acquittal right there.

* You cite no law to support your claims in the second paragraph. You seem to be making assumptions that you can't back up--at least not yet. If you find the law to support your claim, let me know. Meanwhile, I will cite the law in my followup post tomorrow.