Officer Chris Blevins (left) and yours truly after Blevins had finished
"protecting my constitutional rights"
The shooting of Walter Scott in North Charleston, South Carolina, has taught us--among many unfortunate lessons--that law enforcement officers can have only the slightest acquaintance with the truth.
Take, for example, Chris Blevins, the Shelby County, Alabama, deputy who entered my home on October 23, 2013, (without showing a warrant, stating he had a warrant, or stating his purpose for being there) and proceeded to knock me to a concrete floor three times and spray mace in my face. This was all over a purely civil matter--an alleged contempt of court involving a preliminary injunction that violated more than 200 years of First Amendment law.
There was not the slightest hint of a criminal allegation against me, but my encounter with Officer Blevins--inside my own home--left me with a swollen eye, a puffy face, and bruises, cuts and abrasions all over my arms, legs, and back. For good measure, Officer Jason Valenti threatened to break my arms while helping Blevins put handcuffs on me.
To summarize, Chris Blevins helped throw me in jail for five months, violating fundamental law that predates the end of the Revolutionary War. But guess who appears in a new video that promotes the Shelby County Sheriff's Office and its "Code of Ethics"? Yep, our guy Chris Blevins is front and center in a video that almost certainly was filmed in response to a string of police-misconduct cases that started last summer with the shooting of Michael Brown in Ferguson, Missouri.
Blevins is the third "performer" in the video (which can be seen at the link near the end of this post), and with a look of utmost seriousness on his face, he touts his commitment to protect:
. . . the weak against oppression or intimidation, and the peaceful against violence or disorder. And respect the constitutional rights of all to liberty, equality, and justice.
The words that come from Blevins' mouth in the video would be laughable if they weren't so absurd. In fact, I would even laugh at them if I had not been on on the receiving end of his efforts to "protect" me.
What's the truth? Blevins applied oppression and intimidation; he did not protect me from them. Blevins brought violence and disorder to my previously peaceful life. Blevins joined an effort to take away my liberty and deprive me of equality and justice.
Chris Blevins, it seems clear, is cut from the same cloth as Michael Slager. They both lie to such an extent that they probably can no longer even recognize the truth.
Want proof? I would invite you look at the side-by-side photos of Blevins and me at the top of this post. My photo is evidence of what can happen to you when someone like Chris Blevins tries to "protect your constitutional rights."
Lying Missouri cops, it turns out, don't have anything on their brethren in Alabama. Chris Blevins -- the Shelby County deputy, who entered our home without showing a warrant, stating he had a warrant, or even stating his reasons for being on our property -- serves as Exhibit A of corruption among Alabama LEOs. Blevins' actions raise several legal issues that merit examination:
How bad can some rogue officers be in the South, especially in the state I know best--Alabama? How deep is their disregard for the law? To help answer those questions, we can turn to my own arrest on October 23, 2013, which led to five months in jail. What was my crime? As with the Walter Scott case, there weren't even allegations of a crime; I was arrested for blogging--and I'm not making that up. How absurd did it get? Courtroom evidence suggests that Alabama deputies arrested me without a warrant, making the arrest "unauthorized and illegal" under the law. If that was the case, the deputies likely ran afoul of a landmark U.S. Supreme Court case that generally prohibits warrantless entry into a private home to make an arrest. Payton v. New York, 455 U.S 573 (1980) specifically forbids such entry in most cases involving felony arrest. My arrest was for civil contempt in a defamation lawsuit and did not involve a crime at all.
What about details of what happened that night in our garage? We don't have to guess about it because the events were caught on dash-cam tape -- much of the video and all of the audio:
Shelby County deputy Chris Blevins entered my home on October 23, 2013, walking into our basement garage to knock me down three times and Mace me before telling me that I was under arrest. It's all caught on a videotape that later was played in open court. At no point, in a video taken from his police cruiser, does Blevins show an arrest warrant. When the prosecution was told to turn over copies of any warrants at my resisting-arrest trial in January, prosecutor Tonya Willingham replied that she did not have any warrants.
All of that suggests there was no warrant for my arrest, and that raises the issue of Payton v. New York. Here is the key finding in that case:
"The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest."
I can be heard on the video telling Blevins to get out of my house, so his entry was nonconsensual.
As for the nature of the arrest, I had not even been charged with a crime, much less a felony. Entry into a home can't get much more illegal than that.
Evidence strongly suggests that my October 2013 arrest, by an Alabama deputy who neither showed a warrant nor said he had one, was unlawful. So how on earth was I charged with "resisting arrest," and convicted, resulting in a fine of $845? For that matter, how did I wind up incarcerated for five months on an arrest that was conducted outside the law?
None of that can happen in a place where the actual law means anything. But we are talking about Shelby County, Alabama, and District Judge Ron Jackson--who I knew from previous experience has a tendency to pull "law" from some dark place underneath his robe. We also are talking about powerful conservative legal/political figures, led by Rob Riley and lobbyist Liberty Duke (and God knows who else behind the curtains) who wanted me in jail to stop my reporting on this blog.
That raises this obvious question: Was my arrest lawful? And the answer is no, on at least three grounds:
(1) Officer Chris Blevins entered our home without showing a warrant or saying he had one. At my resisting-arrest trial, prosecutor Tonya Willingham was instructed to turn over any warrants as evidence, and she said, "Your Honor, we don't have any." At this point, it's a matter of public record that there was no warrant for my arrest. Either that, or Ms. Willingham withheld evidence, which could cost her law license. Entering a dwelling without a valid warrant violates a landmark U.S. Supreme Court case styled Payton v. New York, 445 U.S. 573 (1979).
Shelby County (AL) Jail
(2) Officer Mike DeHart "served" us with Rob Riley's lawsuit via an unconstitutional traffic stop. I contested service as improper and invalid, and that placed the burden on Riley and Duke to prove that service was conducted properly. No hearing ever was held on that subject once I filed a Motion to Quash Service. (I did not "ignore" the lawsuit, or a court order, as has been widely reported: I responded by challenging service, as any semi-competent attorney would have done under similar circumstances.) The plaintiffs never proved lawful service, so that means the court did not have jurisdiction over me. And that means both my arrest and incarceration were unlawful--ordered by a court and a judge (Claud Neilson) who had no authority over me. It's hard to imagine a more grotesque violation of constitutional rights than that.
(3) My arrest was based on alleged violation of a temporary restraining order (TRO) and preliminary injunction in the Riley/Duke defamation case. But more than 200 years of First Amendment law prohibits such actions as "prior restraints" on free speech. In other words, they prohibit speech before it has been found unlawful at trial--and there was no trial in the Riley/Duke case, meaning my reporting still has never been found false or defamatory in any legitimate proceeding. All of this is governed by a landmark U.S. Supreme Court case styled Near v. Minnesota, 283 U.S. 697 (1931). My arrest might represent the most flagrant violation of Near in American history.
What about Alabama case law on the subject of resisting an unlawful arrest? It could not be more clear, spelled out in a 2013 federal-court case styled Rigas v. Rogersville(some citations omitted):
Under Alabama law, a person commits the crime of resisting a lawful arrest by preventing or “attempting to prevent a peace officer from affecting [sic] a lawful arrest of himself or of another person.” Ala. Code § 13A-10-41. An arrest without a warrant, as here, may be effected “if a public offense has been committed or a breach of the peace threatened in the presence of the officer.” Ala. Code § 15-10- 46 3(1). There is no Alabama law or practice criminalizing resistance of an unlawful arrest, however. See Shinault v. City of Huntsville, 579 So. 2d 696, 698 (Ala. Crim. App. 1991) . . . Indeed, Alabama law has historically permitted use of reasonable force to resist an unlawful arrest. Ala. Code § 13A-3-28 Commentary (1975) . . .
(C) Even though I had a right to reasonably resist an unlawful arrest, Blevins' own words and actions show that I did not -- as we pointed out in this post:
Let's consider a few elements from my encounter with Shelby County officer Chris Blevins:
(1) In his incident report, Blevins states that he has two warrants for contempt of court in his vehicle. But the video shows that they stayed in his vehicle, and he never showed them to me or mentioned that he had them. . . . He reports walking inside our garage to tap on the trunk of our car--all without showing he had any legal authority to be there or verbally stating why he was there. Despite that, Blevins apparently was surprised when I got out of my vehicle and, in his words, "began yelling for me to get out of his house." Gee, can't imagine why I would do that. An armed stranger, who has shown he has no legal grounds to be there, is walking right into my house--even after being told to get out. Why would that concern me?
(2) Blevins admits he made the initial physical contact after I put my right hand in my right front pocket. Apparently, he thought I was reaching for an assault weapon. (News flash: I was putting my car keys in my pocket, where they always go when I get home.) Blevins also noted that I pushed a button to close the garage door behind us. I don't remember doing that, but I do remember thinking, "Don't close the door because you want this guy out of here." It's possible I reflexively pushed the button because I've been doing it that way when I've come home for 25 years.
(3) Blevins then writes, "I told Mr. Shuler that I had a warrant for his arrest," but this is a lie--and the video proves it. He never mentions an arrest, his apparent purpose for being there, until after I've been knocked to a concrete floor three times and maced in the face.
(4) On the video, Blevins can be heard repeatedly saying, "Don't fight me, don't fight me" as he is shoving me around. But according to Blevins' own words, I wasn't fighting him--it was the other way around. The only physical act that Blevins describes of me is putting my arms in front of me--an effort to try to protect my face and glasses from his flailing arms.
(5) Blevins admits throwing me through boxes, to the floor, three times. Never does he say I took any offensive action against him, other than raising my arms in front of my face. . . .
My entire arrest was captured on video, although it has some flaws. Blevins' vehicle was parked at about a 45-degree angle to our garage, so when we go inside the garage and the door closes, the dash cam loses sight of us and mostly shows our backyard. Audio, however picks up the whole thing--and that shows that Blevins entered our home without showing, or saying he had, a warrant. Blevins' own words, show that he initiated physical contact, and I never lashed out at him; I never cursed or threatened him, and I never tried to run away. Also, after Blevins and I exit the garage, Officer Jason Valenti can be heard threatening to break my arms.
"In the audio, you can hear Deputy Blevins assaulting me three times and spraying me with mace before he ever said that he was on the premises to conduct an arrest," Shuler said. "The evidence showed that I was defending myself with the only physical act that I did according to Blevins' own words was raising my arms in a defensive posture, and I was defending myself against a grotesque example of police brutality and excessive force. Evidence showed that Blevins likely had no warrant given that the prosecution could produce no warrant at the trial. The notion that a journalist or any other citizen could be arrested and beaten up in their own home without a warrant should be a cause of great concern for all citizens."
Assistant District Attorney Tonya Willingham prosecuted the case and when forced to turn over copies of any warrants she said she did not have one. How can a resisting arrest case be prosecuted when there are no warrants in evidence? That's one of many disturbing questions raised by Tuesday's trial.
Following are some other revelations from the case:
* Blevins admitted that this was a traffic stop and that Shuler had committed no traffic violations that warranted him being stopped;
* Blevins admitted that he made physical contact with Shuler before ever stating that he was on the premises to make an arrest;
* Blevins never instructed Shuler to get in any sort of arrest position and never told Shuler to put his hands behind his back until after the three assaults and macing;
Blevins admitted that he has had citizen complaints about use of excessive force and police brutality; Deputy Jason Valenti, who assisted in the arrest, can be heard on the video threatening to break Shuler's arms;
* The incident in the report has a box that says "Warrant Signed?" and Blevins has inserted the word "No" as an answer.
We are left with this question: Should a citizen ever believe anything a cop says? Based on experience, I would advise against it.
Do law-enforcement officers intentionally concoct bogus resisting-arrest cases against citizens? Are officers trained to make false statements during confrontations in hopes it might turn attention away from possible excessive force/police brutality? Are judges, prosecutors, and other members of the "justice infrastructure" inclined to side with officers--even when evidence indicates they were in the wrong?
Someone else must think so, too, because we found the above photo/graphic on the Web. It shows a training officer telling a group of police-academy trainees, "Remember class: Always say, 'Quit resisting,' and 'I feared for my life.'"
These issues particularly resonate now because of two important lessons from recent days:
(1) The case against Alabama officer Eric Parker, in the beating of Indian grandfather Sureshbhai Patel, has wrongly been classified as a misdemeanor (third-degree assault). Under Alabama law, it must be classified as a felony (second- or first-degree assault). This suggests that someone in the aforementioned "justice infrastructure" is trying to let Officer Parker off easy.
(2) No citizen can be charged with resisting an arrest that was unlawful in the first place. Alabama law says that citizens have no duty to submit to anything other than a lawful arrest--and, in fact, we have the right to use reasonable force to resist an unlawful arrest.
As for the questions at the beginning of our post, let's consider the words and actions of Shelby County Deputy Chris Blevins in my case. I saw video of the incident during my resisting-arrest trial in January 2014--and having lived through the incident and seen a replay of it--I can't help but almost double over with laughter at the photo/graphic above. It's as if Chris Blevins was one of the dudes sitting in that class.
On the video, Blevins enters our garage, even though he has not shown a warrant, has not said he has a warrant, and has not said why he is on my property. I clearly tell him to get out of my house, but he ignores that. As I get out of my car and try to get to some stairs to walk up to our kitchen, the dash camera in Blevins' vehicle loses sight of us. Blevins follows me, and the garage door closes behind us--I must have reflexively pushed a button that closed the door, although I don't remember doing it. In fact, I remember saying to myself, "Don't close the door because you want this guy out of here."
We lose video of what takes place inside the garage, but the audio picks up everything. We also have Blevins' own account of the event from his incident report. (See report at the end of this post.)
What do we learn? Here are a few things:
(1) Blevins repeatedly is heard saying "Don't fight me, don't fight me," even with all kinds of noise in the background--which is the sound of him pushing me up against a heavy dog pen, hard enough to move it several feet, and through two stacks of boxes. By Blevins' own words in his report, he initiated physical contact with me, not the other way around, and the only action I took was to raise my arms in front of my face, which I did mainly to keep my glasses and/or nose from being broken. Our photo/graphic above is supposed to be a joke, but it isn't; like most good humor, it's based in reality. Blevins used slightly different words--"Don't fight me," instead of "Quit resisting"--but otherwise, it's like he was sitting there taking notes from the training officer in our illustration.
(By the way, Blevins does state several times in his incident report that I 'resisted,' but he never says how. In fact, his own words show that I did nothing that amounts to resisting arrest. Also, Blevins admitted at my resisting-arrest trial that his actions amounted to a traffic stop, under the law--and that has profound consequences for what took place on the night of October 23, 2013, inside my garage. More on those two issues coming in a future post.)
(2) Is Blevins trying to create the tried and true "I feared for my life" scenario? It sure looks that way when you read his words in the incident report. First, he states that I put my "right hand in my right front pants pocket." This seems to hint that he feared I might have been reaching for a weapon in my pocket--perhaps an assault rifle was stored in there. What was the reality? I had just gotten out of my car so--surprise, surprise--I was putting my car keys in my pocket. (By the way, Blevins says he grabbed my arm as I put it in my pocket. And yet, he says I pushed a button to close the garage door. How did I manage to do that if he had grabbed my arm? Did he push the button to close the garage door? I don't know.)
Then, Blevins states that the garage was "darkened," with "only a dim bulb on the garage opener." Most garages, particularly those (like ours) that are partially underground, tend to be fairly dark. But ours has a large window on the side wall and six to eight small windows across the double garage doors. There was quite a bit of light coming in, and Blevins' vision should have been good enough to see that nothing in our garage posed a threat to him--and he never says I was trying to grab any object anyway.
I think Blevins and his colleagues intended to rough me up a good bit--Officer Jason Valenti can be heard on video threatening to break my arms while assisting in handcuffing me--and I think they also planned to set up a "resisting arrest" scenario, one that was contrary to facts and the law. A resisting-arrest charge, I'm guessing, takes the spotlight off their own misconduct and puts it on me.
As for the "justice infrastructure," prosecutor Tonya Willingham was instructed to turn over copies of any warrants, and she replied "Your Honor, we have no warrants." And Judge Ron Jackson, having just been told that this was not a lawful arrest, convicted me of resisting arrest anyway.
The trial was on January 14, 2014, and I had been in jail since October 23, 2013, with no opportunity to prepare a defense. Jackson denied my request for a continuance, so in essence, I was not allowed to actually prepare a defense on resisting arrest. Even so, I knew that resisting applied only to a lawful arrest, and I argued that this did not involve a lawful arrest--after all, it was a matter of court record that no warrant existed.
Jackson wasn't hearing any of it--his mind clearly was made up before the proceeding even began--so I was faced with an $845 fine, and I now have a criminal record. I also have had the pleasure of seeing my photo listed on "Shelby County's Most Wanted" for several months, long after the fine had been paid.
Last time I checked a couple of weeks ago, the "Most Wanted" photo finally had been removed--only after I alerted the sheriff's office that the fine had been paid for months.
I've written extensively about the emotional and physical trauma of being roughed up inside my own home and being incarcerated for five months. I'm still living with that, but the resisting-arrest case presents a more subtle form of damage that members of the "justice infrastructure" have inflicted on me--and I'm sure countless other citizens have had to deal with it.
It was bad enough that my picture was on the Shelby County Sheriff's Web site for the five months I was an inmate--on a contempt of court charge that is contrary to more than 200 years of First Amendment law. But imagine having your photo on a "most wanted" Web site for a "crime" you did not commit, even after the fine for said "crime" long has been paid.
What kind of smear job does that do to your reputation? Where does a law-abiding citizen go to get his reputation back?
The stupidity and dishonesty of Alabama police officers is on glaring display in the video that captures the body slamming of Sureshbhai Patel, a grandfather from India who was in the state to help his son and daughter-in-law take care of their newborn son. (See video above.)
Similar stupidity and dishonesty would be on display if a video of my arrest in Shelby County, Alabama, ever is made public. I saw the video during my bench trial for resisting arrest in January 2014. At the time, it was under the control of assistant district attorney Tonya Willingham (tonya.willingham@alabamada.gov or 205-669-3750), and as public property, it still should be in her possession.
Let's consider the Patel video first, and two mind-blowing elements of it jump out at me:
(1) Almost from the moment the officers confront Patel on a sidewalk in Madison, Alabama, it's clear the older gentleman does not speak English. The 10-minute video, from the first police cruiser, shows this. In the first 1:30 of the encounter, an officer says, "I can't understand you, sir," and Patel mentions India and appears to point toward his son's house, a seemingly clear sign that he is not from this country and does not speak English, but has legitimate reasons to be here. Despite that, officers keep badgering Patel and giving instructions in English--acting baffled when he doesn't respond well and tries to quietly walk away. The encounter should have ended there, with no sign of a crime on Patel's part, but that's not what happened.
(2) At about 2:10 on the longer video, Officer Eric Parker tells Patel: "Do not jerk away from me again, or I will put you on the ground. Do you understand?" About four seconds later, Patel does not appear to be moving and certainly is not jerking. But Parker grabs him by the back of the neck, trips him, and thrusts him forward to violently land on his head.
(3) After all of this, the cops still don't seem to get it. "He don't speak a lick of English," one cop says. "I don't know what the problem is," another says. (See 3:26 video at the top of this post.) After the officers have almost broken Patel's neck by jamming his head into the ground, they seem amazed that he can't walk. "Stand up, stand up," one of them says. "You can walk," says another.
Let's consider a few elements from my encounter with Shelby County officer Chris Blevins:
(1) In his incident report, Blevins states that he has two warrants for contempt of court in his vehicle. But the video shows that they stayed in his vehicle, and he never showed them to me or mentioned that he had them. (See incident report at the end of this post.) He reports walking inside our garage to tap on the trunk of our car--all without showing he had any legal authority to be there or verbally stating why he was there. Despite that, Blevins apparently was surprised when I got out of my vehicle and, in his words, "began yelling for me to get out of his house." Gee, can't imagine why I would do that. An armed stranger, who has shown he has no legal grounds to be there, is walking right into my house--even after being told to get out. Why would that concern me?
(2) Blevins admits he made the initial physical contact after I put my right hand in my right front pocket. Apparently, he thought I was reaching for an assault weapon. (News flash: I was putting my car keys in my pocket, where they always go when I get home.) Blevins also noted that I pushed a button to close the garage door behind us. I don't remember doing that, but I do remember thinking, "Don't close the door because you want this guy out of here." It's possible I reflexively pushed the button because I've been doing it that way when I've come home for 25 years.
(3) Blevins then writes, "I told Mr. Shuler that I had a warrant for his arrest," but this is a lie--and the video proves it. He never mentions an arrest, his apparent purpose for being there, until after I've been knocked to a concrete floor three times and maced in the face.
(4) On the video, Blevins can be heard repeatedly saying, "Don't fight me, don't fight me" as he is shoving me around. But according to Blevins own words, I wasn't fighting him--it was the other way around. The only physical act that Blevins describes of me is putting my arms in front of me--an effort to try to protect my face and glasses from his flailing arms.
(5) Blevins admits throwing me through boxes, to the floor, three times. Never does he say I took any offensive action against him, other than raising my arms in front of my face.
(6) At my resisting-arrest trial, before District Judge Ron Jackson, prosecutor Willingham was ordered to turn over copies of any warrants as evidence. Her reply? "Your Honor, we don't have any." And she didn't ask for a recess, so that she could go find the warrants in her office, which is in the same building. As of now, it's a matter of court record that no warrant existed for my arrest. And that raises a whole bunch of disturbing questions under a landmark U.S. Supreme Court that we will be discussing in upcoming posts.
My entire arrest was captured on video, although it has some flaws. Blevins' vehicle was parked at about a 45-degree angle to our garage, so when we go inside the garage and the door closes, the dash cam loses sight of us and mostly shows our backyard. Audio, however picks up the whole thing--and that shows that Blevins entered our home without showing, or saying he had, a warrant. Blevins' own words, show that he initiated physical contact, and I never lashed out at him; I never cursed or threatened him, and I never tried to run away. Also, after Blevins and I exit the garage, Officer Jason Valenti can be heard threatening to break my arms.
The video should be made public.
Meanwhile, how in the world did I get charged with resisting arrest from all of this? Even conservative legal analysts, such as Ken White at Popehat blog, have said the preliminary injunction against me was prohibited under the First Amendment, and that means my arrest for allegedly violating the injunction was unlawful. On top of that, I contested service in the lawsuit--I did not ignore the court's order, as has been widely reported--and I'm aware of no hearing at which proper service was established. Without that, the court did not even have jurisdiction over me.
Maybe that's why no warrant has turned up. Perhaps no one wanted to sign a warrant for a citizen over whom the court had no jurisdiction.
It's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.
Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. . . . Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.
Popehat raises a powerful question: Can you be charged with resisting an unlawful arrest?
We will address that question shortly.
(To be continued)
(Note: Below is Officer Chris Blevins' incident report on my arrest. I have not run this previously because I've seen an Alabama Attorney General's opinion that says only the front page of an incident report is public information; the back page, including the narrative, is considered officer work product and therefore is not public. However, as the subject of the arrest, I am entitled to have a copy of the report, so I believe that overrides any work-product privilege that Blevins might assert. Anyone who wants to challenge this is welcome to contact me, but under the circumstances, I believe the following document is public information, especially since it all took place inside my home.)
If Alabama federal judge Virginia Emerson Hopkins had her way, cops could break into your home (without a warrant), beat you up without stating their reason for being there, douse you with pepper spray, and haul you to jail without the whiff of a criminal allegation against you -- and it would all be lawful, as long as they were acting within the boundaries of their employment.
What I described above is a state-sanctioned kidnapping, and of course, it isn't lawful in the United States -- at least, not yet. It also describes exactly what deputies in Shelby County, Alabama, did to me, and it is the heart of our federal lawsuit (we call it the "Jail Case) that is pending before Hopkins in the Northern District of Alabama.
We already have shown that Hopkins unlawfully dismissed portions of the Jail Case on statute-of-limitations grounds. She wrongly dismissed other portions of it on state immunity grounds -- essentially saying the actions I described above are lawful, as long as cops are acting within the lines of their job -- and not, say, breaking into your house while on a drunken weekend bender.
Hopkins' finding is preposterously off target, and we have challenged it with a Motion to Alter or Amend Judgment under Rule 59 of the Federal Rules of Civil Procedure (FRCP). In fact, Hopkins ruling is so unlawful that we've had to file two amendments to our Rule 59 motion, just so that we could attempt to address most of the screw-ups. (Hopkins' judgment, and our Rule 59 motion -- plus our two amendments to the motion -- are embedded at the end of this post.)
If all that doesn't work, we will appeal to the U.S. Eleventh Circuit Court of Appeals. We also will consider filing a criminal complaint against Hopkins and others who apparently have been involved with cheating us on the Jail Case, including officials with the Alabama State Bar, who clearly have interfered in the matter. It all could wind up in a federal lawsuit under the Racketeer Influenced and Corrupt Organizations (RICO) Act -- against Hopkins, opposing lawyers and parties, State Bar officials, and perhaps others.
On page 25 of her memorandum opinion, under "Count Nine, Assault and Battery," Hopkins admits the statute of limitations under Alabama law is six years, so she can't screw us on that. But she comes up with something else -- the immunity sham. This is from her memorandum opinion on the issue:
Sheriffs generally enjoy sovereign immunity from suits for damages in their individual capacities for acts they performed in the course and scope of their employment. See Ex parte Davis, 930 So. 2d 497 (Ala., 2005).
Notice Hopkins use of the word "generally" in the passage above. That means sovereign immunity does not always protect deputies, and Hopkins ignores portions of the law that do not fit her agenda -- which is to let cops skate for gross violations of our constitutional rights. From our Rule 59 motion, at No. 23:
How wrong is Hopkins on her finding that the officers are protected by state-agent immunity? A case styled EX PARTE ALABAMA DEPT. OF YOUTH SERVICES, 880 So. 2d 393 (Ala: Supreme Court, 2003) holds: "Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity: (1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law." The Shulers allege that the officers, at the direction of Curry, acted in bad faith (with malice and fraud) and outside the boundaries of the U.S. Constitution. Therefore, the officers are not protected by state-agent immunity.
In other words, a deputy and a sheriff are not protected by immunity when they violate rights under the U.S. and Alabama constitutions -- or when they act willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.
Immunity is one of the most twisted, confusing, nonsensical areas of the law I have encountered. In Alabama, it's particularly mind-numbing because sheriff's are considered "constitutional officers," and deputies are considered the sheriff's "alter egos" -- and some case law hints that such status gives them absolute immunity to abuse citizens without fear of being held accountable.
Other case law, such as Ex parte Alabama Dept. of Youth Services (cited above) essentially holds that "constitutional officers" might be immune to charges of alleged negligence, but they lose that protection for intentional acts in "bad faith." We've seen signs that law related to state immunity for sheriffs and their deputies is inconsistently written and inconsistently applied in Alabama. But the most recent case we've found from the U.S. Eleventh Circuit Court of Appeals, built largely on findings of the Alabama Supreme Court, make clear that Hopkins butchered immunity law in the Jail Case. We will explain further in upcoming posts.
As for Chris Blevins and Jason Valenti, the two officers who beat me up in my own home (and Valenti threatened to break my arms) -- and Sheriff Chris Curry, who apparently directed their activities -- it's clear they acted way outside the constitution and with all of the ill motives noted above.
These concepts -- that state agents, employees, and officers are not immune when they act outside the law, outside their authority, with ill motive, etc. -- go well beyond the Alabama law that Hopkins cites. From our Rule 59 motion:
Hopkins essentially says cops enjoy sovereign immunity to break into someone’s home, beat them up, and unlawfully arrest them without a warrant (and no whiff of a criminal allegation). The officers assert various forms of immunity, including qualified immunity, and that defense fails. Per Jones v. Fransen, et al (11th Cir., 2017), “But the doctrine’s protections do not extend to one who “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff].”Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
Law from the state, Eleventh Circuit, and U.S. Supreme Court are clear -- cops are not protected by immunity when they unlawfully enter your home, beat you up, douse you with pepper spray, and arrest you without a warrant or any hint of a criminal allegation.
How can a federal judge possibly get this wrong? One answer might be that Virginia Emerson Hopkins and her husband essentially bought a judicial seat by making campaign donations to then Alabama U.S. Senators Richard Shelby and Jeff Sessions. Hopkins is nothing but a sleazy product of the Shelby/Sessions corruption pipeline, and we will spell that out as our series on this topic continues.
According to the words of Shelby County deputy Chris Blevins (see incident report at the end of this post), he threw me to the concrete floor of my garage on October 23, 2013. A more accurate description would be to say that Blevins shoved me as hard as he could--I weigh about 90 pounds more than Patel, but Blevins is significantly bigger than Officer Parker.
Patel was thrown down one time, and I went down three times. He went down on grass, and I went down on concrete. Like Patel, my hands were in a position (trying to protect my face) where I could not use them to break my fall. (Ironically, Patel has been described in several accounts as "elderly," but he's a year younger than I am.)
I did not escape injury--I had cuts, bruises and abrasions up and down my legs, back, and arms. In some cases, I still have the scars--and they probably will always be with me. I now have chronic shoulder pain, which probably started the night of my arrest and got worse from sleeping on metal/iron beds, with almost no cushioning, for five months in jail. (Deputies twisted my arms behind me to apply handcuffs, and Officer Jason Valenti can be heard threatening to break my arms on the video of my arrest. My shoulders are so sore and stiff right now that I struggle to put on a coat.)
How did I manage to not wind up in a hospital bed like Sureshbhai Patel? At the time, I was in fairly good shape for my age, and that probably helped. But mainly, I got lucky because several objects in our garage broke my falls.
First, was a heavy dog pen that belonged to our late miniature schnauzer, Murphy, for whom this blog is named. The pen is solid, to the point that you need to use your shoulder and grunt to move it. Blevins shoved me into it hard enough to move it about three feet. The force left a nasty welt on my back.
On two other occasions, Blevins shoved me into a stack of boxes, which I long had been planning to throw away. This was a case of procrastination paying off because the boxes probably kept my head from hitting the concrete with significant force. Just behind the boxes were a set of free weights, made of solid metal. Had my head hit those . . . well, I might not have survived long enough to make it to a hospital--or to jail.
The video from Huntsville shows that Officer Parker had utter disregard for the well-being of Patel, even though there was zero evidence that the grandfather from India had been involved in a crime. Officer Blevins showed the same disregard for me--and he knew for sure I hadn't committed a crime. Blevins supposedly was acting on a warrant for contempt of court in a civil case, but video of my arrest shows he never told me he had a warrant and never showed a warrant.
I'm sure Mr. Patel is able to see only a limited number of visitors right now, but I would love to meet him someday. First, I would like to apologize on behalf of my country. I would like to let him know that Alabama has long been a deeply troubled state, even though it has many positive qualities to recommend it. But mostly, I would like to let him know that he isn't alone, that something similar happened to me--and if he and I have the will to stand up against law-enforcement abuse, maybe it will cease someday in the USA.
Sureshbhai Patel was in Madison, Alabama (a Huntsville suburb), to help his engineer son and daughter-in-law with their newborn baby. Officer Eric Parker responded to a "suspicious activity" call, confronted the non-English speaking Patel, and wound up slamming him to the ground headfirst--all for the apparent "crime" of "walking on the sidewalk while having dark skin and wearing a toboggan."
Patel weighs about 130 pounds, and at last report he remains in a Huntsville hospital--it's unknown if he will regain full use of his limbs, although his condition seems to be improving. The assault has become an international story, with many news outlets in India running it on the front page of their Web sites.
A video of the violent encounter, which can be seen at the beginning of this post, probably has gone viral. I've watched it perhaps a dozen times, and I get a sense of dread each time before clicking "play".
Why the visceral reaction from me? To a considerable extent, I've been in Patel's shoes. I know firsthand the lack of regard Alabama "law enforcement" officers can show toward a citizen who has committed no crime--and for whom they have no lawful grounds to detain.
The assault against me also was captured on video, but it has not been made public. I've seen it, and it should be available via Tonya Willingham, of the Shelby County, Alabama, district attorney's office at tonya.willingham@alabamada.gov or (205) 669-3750.
On October 23, 2013, about 6 p.m., Shelby County, Alabama, officer Chris Blevins almost hit my vehicle with his cruiser as I tried to pull into our garage. Blevins was unable to block my path, so I pulled into the garage, exited the vehicle, and prepared to push a button to close the garage door. Blevins showed no warrant, said he had no warrant, and did not state why he was there--but he began entering my garage anyway. He asked me to step outside, and I told him to get out of my house. In a matter of seconds, he was on me--shoving me to a concrete floor three times, spraying me with mace, and calling for another officer to help drag me some 25 feet to the driveway outside.
Ironically, Sureshbhai Patel and I are almost the same age. I was one month from my 57th birthday when Chris Blevins attacked me. I'm 58 now, so Mr. Patel actually is a little younger than me.
I was lying face down on my driveway when Officer Jason Valenti threatened to break my arms because I couldn't get my hands in the proper position to be handcuffed. That was largely because I had never been arrested in my life and had no idea what I was supposed to be doing--plus, I was disoriented and almost immobilized from the mace, which was dripping all over me.
Someone placed me in the back of a sheriff's vehicle, where I could hear officers talking about also trying to arrest my wife, Carol. Thankfully, she was taking a nap in an upstairs bedroom and did not hear what was going on. She awoke later that evening, well after dark, and had no idea where I was. Her first clue came when she went downstairs to our basement and saw boxes and other items strewn everywhere--clear signs of violence. Her first thought was that I had been murdered, probably because of something I had reported on this blog.
She contacted a friend who has a legal background, and he was able to discover that I had been booked into the Shelby County Jail. I had been arrested and would stay in jail for more than five months, becoming the only journalist to be arrested in the western hemisphere in 2013, and the only one this century to be arrested on a purely civil matter.
In the week after my arrest, officers came to our house several more times, in apparent efforts to arrest Carol. They failed, and she was able to get out word about what had happened to me--and like the Patel case, it made international news.
(A video at the end of this post shows the scene in our garage after I was attacked. Carol describes for a reporter what I had told her about the nature of my arrest. Thanks to Matt Osborne for this video and his coverage.)
What prompted law enforcement to swarm our property, both before and after my arrest? No one had made remotely criminal allegations against me or Carol. Rather, a powerful Republican political figure named Rob Riley (son of former governor Bob Riley) had filed a defamation lawsuit against me--and he named Carol in the suit, claiming she served as "administrator" of the blog, even though she was not involved with it in any capacity.
I'm not aware of a hearing ever being held on my motion to quash, and I'm not aware that Riley provided any evidence that service was lawful, as was required of him under Alabama law. If a plaintiff has not proven proper service--and I never was notified of any hearing on the subject--the court has no jurisdiction over defendants.
That was the status of the case at the moment Chris Blevins set foot in my garage.
Service had been contested as improper and invalid, the court had no jurisdiction over me until proper service was proven, and there had been no hearing or ruling on that issue. With the relevant law as a backdrop, perhaps you can understand why I was insistent that Chris Blevins get the hell out of my garage.
I knew Blevins had no lawful grounds to be in my house, just as Officer Parker had no lawful grounds for body slamming Sureshbhai Patel.
The point here is not to compare the two incidents; both are horrifying examples of police abuse. An argument could be made that, due to the nature of Mr. Patel's physical injuries, his case was worse than mine. An argument could be made that, due to the fact I unlawfully spent five months in jail, my case was worse than his.
What's important, in my view, is that no one has been held accountable for what happened to me--and that could have contributed to what happened to Mr. Patel. My case remains fresh, well within any applicable statute of limitations, but there has been no civil-rights lawsuit, no FBI investigation, no criminal investigation of any sort. All of those things have happened, or are happening, in the Patel case--as they should.
If serious action had been taken against the bad actors in my case, would the Patel case have never happened? Did my case represent the kind of harsh lesson that needed to be driven home to Alabama law enforcement, in order to protect people like Mr. Patel, to protect all of us?
At the very least, the assault against me indicates you are not safe from law-enforcement thugs even if you have white skin, speak English, are standing inside your own home, and have lived in Alabama for 35 years, as I have. Mr. Patel's sin seemingly was having dark skin and an inability to understand English; mine was being a practicing journalist, willing to write tough stories about the state's legal and political elites.
(By the way, none of my reporting has been proven at trial to be false or defamatory. In the Riley case, there was no trial because Riley didn't ask for one. Judge Claud Neilson acted as a one-man censor of this blog, in gross violation of Near v. Minnesota and its progeny.)
With no accountability so far in my case, did that help set the stage for the abuse of Sureshbhai Patel--did it almost make his case inevitable, given Alabama's toxic history on race and justice? I would argue that the answer is yes.
It has been just more than a year since my five-month incarceration for blogging ended in Shelby County, Alabama. We already have shown that the arrest was unlawful on at least three grounds, but the list of abnormalities in the case seems to keep growing.
That's because the actions of Deputy Chris Blevins in "effectuating" my arrest so clearly fall outside the boundaries of the law. Blevins' unlawful actions fall into at least four categories: (1) His failure to state his purpose for being at our home; (2) His failure to state his mission before entering our home; (3) His use of excessive force, as defined by law; (4) His use of pepper spray in a situation where the law does not support it.
Let's examine each of these issues closely:
(1) Failure to state his purpose--Under Alabama law, an officer making an arrest must give notice of his authority. From Code of Alabama 15-10-2: "An officer may execute a warrant of arrest on any day and at any time; but in doing so, he must inform the defendant of his authority and, if required, must show the warrant."
In other words, an officer must tell you why he is in your presence, he must describe his purpose for being there. We've already established that Blevins did not show a warrant, but perhaps more importantly for our purposes now, he never stated that he was at our home to arrest me--until after he had already knocked me to a concrete floor three times and directed pepper spray into my face.
That makes the arrest unlawful, especially when you consider that it took place inside our home. That takes us to item No. 2.
(2) Failure to state his mission before entering our home--Both statutory law and case law in Alabama show that an officer has important responsibilities before entering a home. To quote further from Code of Alabama 15-10-2: "If [an officer] is refused admittance, after notice of his authority and purpose, he may break an outer or inner door or window of a dwelling house, in order to make the arrest."
Blevins was refused admittance to our home--I told him to get out of our garage--but he had given no "notice of his authority and purpose" for being there. A videotape of the arrest shows Blevins walking into our home without stating why he is there. Under Alabama statute, this is unlawful.
Importantly, in most circumstances, a person must make known his purpose and demand admittance before breaking into and entering the house of another to make an arrest. 5 Am.Jur.2d Arrest § 93. Mr. Justice Bouldin, in Gray v. Williams, 230 927*927 Ala. 14, 18, 160 So. 715, 718, spoke to this point when he stated:
"In entering the dwelling of a third person, especially at night, the officer is under duty to apprise the head of the family of his mission and authority. No particular words are necessary, but, coming in the name of the law, he should make known such fact."
The arrest videotape shows that Blevins failed to fulfill his duty before entering our home, and that is one more ground for making my arrest unlawful.
(3) Use of excessive force, as defined by law--When an arrest is unlawful--as this one was on almost a half dozen grounds--a law-enforcement officer is not authorized to use force. As stated in Jackson v. Sauls, 206 F. 3d 1156 (11th Circ., 2000):
" . . . if a stop or arrest is illegal, then there is no basis for any threat or any use of force, and an excessive force claim would always arise but only collaterally from the illegal stop or arrest claim."
As we've shown, Blevins' actions were illegal from the moment he stepped into our garage without stating his purpose for being there. Under Jackson, all of the force that Blevins subsequently used was unlawful.
As this Court also recently explained in Lee, "Graham dictates unambiguously that the force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight. . . ."
Courts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.
In my case, there was no crime at all, severe or otherwise. I was being arrested for alleged contempt of court in a civil matter--one where I could not lawfully be subjected to a contempt finding. By Blevins' own words in his incident report, he was the one acting violently, throwing me through boxes (twice) and up against a sturdy, metal dog pen. By Blevins' own account, all I did was put my arms in front of my face to protect myself from his blows. When finally informed that I was under arrest, I was lying on the floor of my own garage--with the doors closed--so it seems clear I was not a flight risk. (See incident report at the end of this post.)
Reporting on my story has focused largely on clear violations of the First Amendment. In my view, however, the story goes way beyond that. Discussions of the First Amendment tend to be nuanced and theoretical. But there was nothing nuanced about Chris Blevins' actions in our garage--or about the five months I spent in jail.
Police abuse has been one of the leading stories in the United States over the past eight to 10 months; my story is just one more example of it. I managed to live through it, but the closer you look at the details, the uglier it gets.
