Is there anybody in the water right now? >> I thought he was sleep at first. >> Brandon. >> Hey, Brandon. You all right, bud? >> Right before we hit a tree, we hit about 75 car. >> He was the truck truck driver. >> Was he driving? >> Only one in the truck. How's the other car? >> Welcome back to the Lackluster channel. I post updates to the cases I cover as often as I can. But today's case is a prime example of why sometimes it feels as though each video posted is forgotten. The story begins all the way back in January of 2020 when Brandon Williams pulled into a park to make a phone call. While speaking to his wife, an officer pulls in behind him. At the moment the clock struck midnight, which happens to be the posted closing hours of the park, Officer Mlanahan activated his emergency lights and approached Brandon's vehicle. >> How are you? >> How are you? >> Good. I have the lights on. >> Cuz you're trespassing. That's why >> you're not trespassing. >> Say public parking lot. >> No, city parking lot. >> You got your license on you? >> I think we'll wait for the license. It's one you're trespassing. >> Can I I don't want to squish on that cool. >> Yeah, I I'll wait to go while we >> Oh, hey, grab your log, man. I'm asking for your ID. >> Approximately 50 seconds after closing, officer Mlanahan requested backup. Immediately after calling for assistance, Mlanahan slowly backed away from Brandon's vehicle, opting to wait until backup officers arrived before proceeding further. >> Yeah, dude's just giving me a hard time. >> His body cam is now muted for roughly 5 minutes before being turned off. It is reactivated about 10 minutes later. bound in my >> Oh, you good, man? >> Good. >> All right. >> So, so you know I was here for 2 minutes before you pulled up, right? >> That's fine, man. >> Okay. >> All right. >> So, I got a ticket for that, right? >> Yeah. You're trespassing. >> Okay. Or 2 minutes, right? >> I had no idea if you'd been here for 2 minutes or 5 minutes or 20 minutes. >> I was on the phone with my wife and then you >> The body cam footage ends there and the stop concludes peacefully with Brandon receiving a misdemeanor trespassing charge. In February 2020, Brandon contested the charge during which officer Mlanahan perjured himself, falsely testifying about the incident. When Brandon attempted to give his account, the judge interrupted him, deferring instead to Mlanahan, who labeled Brandon one of the rudest, most combative suspects he'd ever encountered. The judge refused to view Brandon's video evidence and convicted him. Brandon appealed and in September 2020, prosecutors offered to drop the charges if he apologized to the officer, but he refused. After a short trial, another judge dismissed the case, prompting Brandon to file a complaint against Mlanahan. But just 2 weeks later, he found himself entangled with the Norfolk Police Department again. This time, a US Navy pilot in full uniform plowed into Brandon's vehicle while crossing a bridge. The impact tore the engine from Brandon's Mercedes-Benz and sent the pilot's truck through a guardrail, plunging nearly 30 feet onto the riverside rocks below. >> Hey, I'm going to go uh >> hold on. Let's get eyes on it first. We already got people down there. >> Jesus Christ. >> All right, I got my camera on. >> Me, too. >> Got one right down here. People out over there. >> Is there anybody in the water right now? >> Nobody's in here. Good. Okay, good. >> He was the truck. >> Was a driver. >> Only one in the truck. >> How's the other car? >> Are they injured? [Music] >> Hey. Hey. We got one guy down here, Martin. I'm going to check on him. [Music] >> How you doing? You having anything going on? You're completely fine. Okay. >> Well, we got We're I'm going to have a medic come down here in just a second. Okay. >> Were you the only one in the truck? >> Yes. >> Okay. >> Who was involved? Anybody involved up here? >> Yes. Yes, ma'am. >> Are you okay? >> Are you all right? >> Brandon. >> Hey, Brandon. You all right, bud? Before moving on, it should be noted that when the department released the body cam footage to Brandon, it had nearly 15 redactions and only after being pressured by the court was the unedited video released. After comparing the audio files for the two versions of the video, it was found that every redaction made was when the officers mentioned Brandon's name. >> Did you see it? I saw a >> Okay, just stand right there. I'm going to get all your information. >> There was a scooter up there, too. I don't know. I saw the other driver. I stopped and checked him, but I don't know if he was on the scooter. >> Like a lime scooter or like a actual scooter. >> Like a lime scooter was in the middle of the road. >> What are you driving? >> That white car >> right here. >> He got hit. >> Yeah. There's only one driver in the truck that was overturned and he is uh down here with me. >> Look, take your time. We got medics coming to you right now. We're going to get you checked out. All right. What's your last name? >> Williams. Are you the uh Are you the owner of the vehicle? >> What the? >> There's no one in the Just this guy. >> He's the only one in the truck. >> 53. I'm with the driver of the Mercedes that was involved. >> I probably wouldn't be standing here if there was someone in the in the truck. >> What's your date of birth? >> 1984. I'm really like >> What's your >> sir? Do you happen to have your tag memorized on your vehicle? No. Okay. Is it registered to you? >> Yeah. >> Okay. >> My dad is Chief Ferguson, Hampton Police Department. >> Okay. >> You're going to go with it with medics to the hospital, I assume. >> I'm fine. >> No, you please. I'm an ER doctor. I am begging you to go to the hospital. I think you are a little concussed. I'm not I'm not trying to be funny here. He has >> I know. I can't force him. It's ultimately going to be his >> Yeah, sure. Absolutely. Absolutely. Hey, we got one that needs to be checked out. The driver of the uh Mercedes is right here. >> Um sir, real quick before they get down here and check you out in case you do go, okay, I'm going to try to knock some of this stuff out for the investigators that are handling it. >> Are you the only one that was in the vehicle? >> My wife's pregnant. >> Okay, we got medics right now responding. Let me get you checked out. All right. >> He's a driver. >> He's a driver. Yes, sir. >> Driver. Only person in the car. >> Only person in the car. Yeah. >> You ever heard that, partner? Were you hurting at >> nowhere? >> I don't even know where I was. >> It's okay. >> Yeah. If I could get one more uh officer down here just for a second. >> He's the driver of the Mercedes. >> Okay. Do you remember what happened? >> I got >> I saw a red truck coming. >> Take your time. All right. Take your time. Not only was I fast enough to break through guard guard rail truck flip hit rocks. That's a lot. That's a lot. >> You should go, man. >> You actually saw the accident. >> Let me get uh Let me get your information real quick. What is your last name? >> He was the only driver of this and surprisingly >> decently. Okay. >> Did the >> Are they alive? >> Yeah, they're alive. He's conscious everything. >> Do you remember what happened? >> Yeah. >> What happened? >> Uh I skid and I went way left across the bridge and went over the water. >> Which direction were you heading? You were heading west or east? >> Uh >> and you just cut completely all the way over and just went through. So, what did you see? >> I was coming out of urgent care. >> Now, you are you were >> No, I'm okay. >> Go down to urgent care and look in the med. You see his skin? He was crossing the med. >> Okay. >> So, it looked like he was in a class cuz I thought he was sleep at first. crossing, >> sliding over back into the chicken right before he hit a tree. >> Okay. >> He came all the way through and he came straight to the white. Right. He got up here. He turned this way. >> Okay. >> And he hit him. >> Okay. >> And he hit him like that. >> How fast do you think he was going? >> About 75. >> Okay. >> And if you go down here, you can walk with me. >> Uhhuh. >> I can show you all of the skid marks. I thought he At first, I thought he was sleep. >> Okay. Despite indications suggesting the airman was driving while under the influence, officer Steven Stone disregards the idea. While he, an ER nurse, and a doctor try to convince the airmen to go with paramedics. >> Look, man, stuff happens and you will think you're fine. And I'm not a doctor or a nurse, but it looks like you got both of those standing right here. And they can tell you more than I can. Stuff happens in your body and you think you're good and the next thing you know it's terrible. You should really go get checked out. >> Come with me. Follow me. We're gonna go to that medic over there. >> What's your name? >> Brandon. >> Brandon. Brandon. Come on, boss. Let's get >> Come on with me. Let's come around. >> Were you one of the first ones here? >> Yeah. >> You see him get out or were they already? >> No, he was already out and then my my partner responded down below and he was conscious as well. >> What the hell happened to you, sir? >> So, basically, I'm getting from the witness right here is truck was coming about 75 mph this way. crossed over, hit a tree, crossed over here, hit him, and then smacked over the railing. He just come this way. >> Meanwhile, Brandon shows signs of a head injury, having trouble remembering the accident. Now, most people don't know my pedigree, but aside from being a combat medic with First Infantry, I was also a dual function firefighter paramedic for LA City Fire. And the level of care these two patients received is astounding. Most people don't know that there are multiple types of hospitals. Some ERs specialize in cardiac care, some with strokes, and others with trauma. And assessing the scene and what might have caused the injuries is just as important as the injuries themselves. Now, granted, it's been about 15 years since I've worked in a box, but the mechanism of injury alone would have had me bringing both of these guys to a trauma center. The mechanism of injury clearly meets the criteria for advanced life support as well as trauma center transport under virtually any EMS or trauma triage protocol. You have a high-speed impact which should have been their first clue to put on some sea collallers, put them on backboards, and get them to the hospital immediately. Number two, you have passenger space intrusion in both vehicles. Not to mention the motor was ripped out of the Mercedes-Benz, which indicates big time energy transfer. and third for the airmen. He was ejected off a bridge, fell 30 ft, and landed on the roof. Now, the numbers could change in various jurisdictions, but in Los Angeles, a 15- ft fall was an immediate transport to a trauma center. I've personally worked incidents that were way more severe than this accident with patients that present 100% normal, and they've just dropped dead. And I get it. As both a medic in combat and on the streets of Los Angeles, I had to understand that this is not my emergency. Otherwise, you get way too wrapped up in it and you're not able to focus. But this this is ridiculous. Eventually, they get both of the patients into an ambulance. >> And he was already on land when you got here. >> Yeah. But I he was definitely >> Oh, yeah. I mean, I believe he is now. >> Yeah, he's okay. He's just getting looked at right now. He's probably going to be transported to the hospital. Um, what's that? >> Um, probably North General. I'm standing by right now. They're checking him out. Medic 13's checking them out right here at Northick Fire. And, uh, I'll update you if we like get any information. I I think it's a good call to go get checked out, man. I really do. If you're fine, you're fine, but it better be safe than sorry, right? I'd hate for you to go to sleep later and, you know, something happened. All right. >> It's the right thing. >> Well, I just gave him an order. He has to. I talked to his command. I'm his senior. He's going to go. >> Oh, okay. Okay. Good. So, the dude go down there with it. >> Yeah. >> And he was good. >> Yeah. >> Well, I think he's got a head in. >> So, you just completely lost the wheel just slipped out on you. >> Yeah. >> Hey. Uh, so basically, I got a witness up here saying that the guy was coming uh eastbound 75 miles an hour. Does he look like he's got some kind of medical emergency going on? you smell alcohol, anything like that? >> He said he lost control of the vehicle and came over. He did say he was going eastbound. Um said that he spun out and he went straight left just right over the bridge. I didn't smell any alcohol on him. He's in his Navy uniform. A fire department checked the truck and they said they didn't see anything. So, >> all right, that's fine. I got I got reports from a witness saying he was flying about 75, lost control, hit a tree, and then hit struck this other vehicle before he went over the railing. So, are they willing to come to court over it? We hit him a reckless. >> I mean, I'm I'm sure. Who's handling this, though? >> I I don't know. It's sounding like it's going to be us. >> All right. Well, I guess whatever. We'll handle it. Whatever we need to do. >> I have his information. I don't have the truck information cuz I can't get in there yet. >> All right. I got the victims and the car information added to the message. >> We can hit him with reckless if >> I'm going to have the witness I'm going to have the witness come down and talk to you. >> Well, if if she already told you, I don't need her to talk to her. >> Well, it's a guy, but we'll keep him. All right. All right. [Music] Hey, can I ask you a question real quick, Mr. Aan? >> Yep. >> Where are you stationed at? >> N O. >> N O. Okay. And how fast do you think you were going? >> How fast? 45. >> You weren't flying. >> No, >> you got >> And you just lost You just like How did you lose control? >> Okay. went to love the power. >> Uh, what's that? >> I was stopped at the light. >> Okay. All right. Fair enough. >> Hadn't any hadn't had anything to drink or any any alcohol or anything like that? >> No, sir. >> Okay. All right. Cool. Thanks. You guys have a good one. >> Though he was not assigned to the crash, Mlanahan diverted from traffic patrol to come to the scene. He allegedly taunted Williams at the ambulance door, all while never activating his bodywn camera. >> Hey, I spoke to your dad, man. let them know you were good. >> Thank you. >> Um and you're going to the hospital, so we'll probably meet you there in a little while for uh some >> give you some paperwork. All right. >> Okay. >> All right, man. >> He'll be downtown. Okay. >> Okay. >> He already talked to the whole boy across the street. He said he saw the entire thing. >> No, I No, if you get his information. >> This is where the two stories meet. Officer Mlanahan, seen here, is the officer that charged Brandon for trespassing earlier that year. >> I did. letting you know. >> Okay. >> The medium down there. This the beginning of it. Okay. >> And then he came up here and that's when he tossed over and hit that car head on the side. So he's not drunk. >> No. No. He's in his military uniform. >> He says he was only doing about 45 50 mph. He said his his suspension started wobbling and it just pulled hard left. He said he cut all the way across and just went right over the [ __ ] bridge. is all >> straight up. >> What kind of injuries does he have? Seat belt. He wearing a seat belt. >> He's fine. He Yeah, he he literally had a cut on his head. >> Cut. He barely he didn't want to go to the hospital. His command ordered him to go to the hospital. We got better to maintain control. Maybe reckless depending on what his witnesses told him. And I would light him up. >> Towards the end of the incident, Sergeant Van Fausian realizes who Brandon is. >> He's his his father in Hampton. This is the guy that gave a clan. [ __ ] >> I don't know. >> The officers never thought to test the other driver for drugs or alcohol. Even worse, the accident report was falsified. Officers claimed the airman was sober, that he was driving at the speed limit and crashed due to a steering defect. But fortunately, the airman's command required a blood alcohol test, which showed his blood alcohol content was 0.3, nearly four times the legal limit. >> Okay. So, he's not drunk. >> No. >> Brandon was told there were no body cam videos from the scene. For over a year and a half, officials claimed the footage didn't exist. But when Brandon filed a records request to locate a witness, the city accidentally sent over the heavily redacted video files mentioned earlier. That footage confirmed what he'd been saying all along. They also appeared to show the airman's wife taking property from the crash scene while both drivers were still hospitalized, violating basic evidence protocol. >> This is the guy that gave a client. >> Williams filed a federal lawsuit in 2022. As usual, the district court dismissed it, saying he hadn't alleged a constitutional violation, but he appealed in 2024 and the fourth circuit heard oral arguments for the case. >> Good morning. May it please the court. My name is Andrew Hendrickk. I'm the attorney for the appellant Brandon Williams. Question in this case is whether Mr. Williams has stated a claim for retaliation and violation of his first and sixth amendment rights when police officers responded to an accident where he was involved in with a false accident report and caused him severe emotional and other injuries. Because the officer's actions would likely deter a person of ordinary firmness from an exercise of their constitutional rights, the trial court aired in dismissing this case. Elements of constitutional retaliation are first that Mr. Williams engaged in protected first or sixth amendment activity. Second, that the officers took some action that adversely affected his rights. And last, that there was a causal relationship between his exercise of rights and the officer's conduct. The first element that he Mr. Williams exercised constitutional rights is not disputed in this case. The question is on the second element, whether Mr. Williams suffered an adverse action. uh to be adverse, the officer's conduct must be likely to deter a person of ordinary firmness from the exercise of their constitutional rights. It must result in more than a dimminimous inconvenience, but it does not need to rise to the level of an independent violation of his rights. It needs only to chill his exercise of the rights and not freeze them completely. It's a factintensive question and depends on the circumstances and the parties involved in their relationships. Uh the factual context is what's important here. This is not uh an accident report drafted in the abstract or in a in a room. This is the scene of a horrific automobile accident where the officers appear. Uh Mr. Williams is severely injured. The officers rather than looking out for him as the victim are instead standing off together in a group pointing at him uh talking about him and then make up a completely false accident report with the intent to uh try and deprive him of an opportunity to uh be compensated for his injuries in that accident. As a result of his Mr. Williams being in this vulnerable position, he suffered severe emotional injuries and physical injuries. as a result of the officer's actions. The actions were >> I'm sorry. Did you just say he suffered um severe emotional and physical injuries? >> Physical physical symptoms uh stemming from the emotional injuries. The officer's actions were so serious that the trial court uh in considering a state law intentional infliction of emotional distress count dismissed it without dismissed that count without prejudice because the trial court believed we had stated at least a possible cause of action under state law. Uh under these circumstances, a person of ordinary firmness and Mr. Williams situation would likely have been deterred from future exercise of the rights. Just so I can fully understand um kind of the what what you are pointing to as the retaliatory action that had materially adverse effect. It's the false statement in the accident report. That is the materially adverse action. The false accident report. It is uh the false accident report but also the actions of the officers on the scene standing and talking about him and pointing at him and making uh I think making clear to Mr. Williams that we know who you are. >> Does that alleged as I read the complaint and I think as the district court read the complaint the allegation in the retaliation section was that um the false accident court that was the thing that was intended to interfere with Mr. Williams rights to recover and had the materially adverse effect on him and the the pointing at the scene of the accident was over any intentional infliction. >> That's correct. That that's in the complaint, but it is in the under the heading of the emotional distress count. >> And so the disport when it comes to the accident report at least says those false statements are not materially at first because the um can't be introduced in court. Are are you dis you contest that part of the analysis on? >> I do not contest whether or not the whether or not the accident report was admissible. I don't dispute that. >> Do you dispute that it follows from that that a false report was not mater? >> I do dispute that. >> Why is the false accident report materially adverse if it can't be? uh two reasons and one is Mr. Williams or an ordinary person lay person probably isn't going to know whether that accident report is admissible or not. Uh and we are seeking here not harm as a result of not being able to prosecute the civil action but harm as a result of the emotional injuries suffered by Mr. Williams in this incident based on the officer's false accident report. So he doesn't know uh and an ordinary person would not know whether or not this accident report is going to be uh uh admissible or not. Uh and second um by the time uh it becomes irre by by the time that accident court report becomes irrelevant and the civil action is prosecuted and settled it's several years later and by that time you know the harm the emotional harm has already been done to Mr. Williams. It's been two or three years from the time of this incident before this civil case was resolved. So, uh, the emotional injury, uh, has happened at that point. Um, if if we were claiming that this prevented him from filing the civil action, uh, that might be more relevant. Our claim is for the emotional harm that this caused him. >> And the emotional harm is what has the chilling effect or are those two separate questions? Uh I think it's it's I think it's it is the emotional harm that is a chilling effect and that's why I think the context the context here is important is he is you know just been terribly injured in this accident and you know officers are you know filing this false police report uh and he is scared because of that he's upset and and he's harmed um and a reasonable person in that situation is I think going to think twice. Do I want to endure that again before, you know, just to challenge a simple misdemeanor trespassing charge? >> I I I found that I think our law is not sort of entirely clear on what is required here. And one line of cases um says that false statements, even false accusations by government officials by themselves are not materially inverse. um even if they would likely have a chilling effect and it's like our Suarez case and a couple of cases in that line. I I really I hate to put you on the spot because I think you've said a lot of different things and it's not always clear what the standard is here and whether the chilling effect by itself is enough. But so your your argument is basically look if this would cause a reasonable person to think very hard before they exercise their rights again that's sufficient. >> That's right. And I I think it's at least a jury question and the courts will let this this go to a jury. Um >> don't you have more than falsity in the fact of this case? Don't you have animus? >> Uh we do. I wonder why you're not it's intentional. >> Why you're not arguing because more than just falsity? Yeah. Because you know officer might scribble anything wrong. >> They make they make statements about that's the guy who Right. >> That's exactly right. This wasn't just a mistaken accident report. This was intentional because they said this is the guy uh in court two years ago who must who gave you a ration of [ __ ] mlanahan uh and that's why they did this. So it's the animous uh reflected in the false accident report that is causing this reaction from from Mr. Williams and his emotional harm. can't seem to me these facts here you be af I mean I mean hypothetically I'm going to say you may be afraid to even call the police because it come to an accident where you're hurt and one of these facts that you would put the wrong thing there I could be afraid to call a 911 number >> I think that's exactly right I think I think this puts Mr. Williams in in fear of of any interaction with the police going forward. Uh particularly uh these particular officers >> and these weren't even officers directly he was involved. It was >> uh one of them was officer Mlanahan was the officer at the he challenged at the trial of the misdemeanor charge and officer Mlanahan was one of the officers who responded to this accident. There was uh two other two other officers I believe we've got in the case. There's a third one who's who has been dismissed from the state law case and would likely be dismissed from this case also if it's remanded. >> And this was a motion to dismiss, right? >> This was on a motion to dismiss. >> One summary judgement. So >> no summary judgement. There's not even a hearing on the motion to dismiss. Um so it's all on the pleadings. >> Did you ask for a hearing? >> We did, I believe. >> No was given. Uh, there was no no oral argument or hearing. I I I believe we asked for one. It's routine that I I can't specifically do, but I always ask for one, so I'm sure I did, but I can't recall at the moment. >> Was it disputed that these comments were made by the police officers? >> Um, >> you didn't get that far, didn't I? Yes. >> Uh, we never got that far. We do have it on body cam tapes. We've got it on video. >> Um, I'd like to speak briefly on the element of causation uh between the protected act and the officer's conduct. Um, of course, the two elements that support our causation argument are first the uh statement on the scene by the officers that that's the guy who you were just up against, Mlanahan. And second, the the complete divergence between what's in the accident report and the facts on the ground of the accident, the driver's going 75 miles an hour, he has a.3 blood alcohol level. uh there's a debris field everywhere and the accident report does not come close to reflecting what actually happened. Um uh we also have two other issues. Uh the district court also dismissed a conspiracy count because it held after holding there was no constitutional violation, there was no uh violation to support the conspiracy count and it also dismissed the state law emotional distress claim without prejudice. Uh so we would ask that this court reverse the decision on retaliation and remand uh for further proceedings from the retaliation. And if the court does that, we would also ask uh that the court remand the conspiracy and state law counts for further consideration in light of there being that that time of constitutional violation. >> What's the status of the claims? Your colleagues said they have filed state. >> It has been filed in the circuit court of Virginia Beach. Uh it's still at the pleading stage. There is a demur hearing coming up in about 3 weeks on that case. >> Uh well, we're asking for that now. Certainly we did when we when we filed this appeal. Uh by the time there's a decision on this case, that may have progressed far enough that it wouldn't make sense at that point, but at least for now, we're still asking for that. Thank you. I reserve the rest of my time. >> Thank you, Mr. In Casey. >> Thank you. Uh, good morning, your honors. Brian Casey. I represent Officer John D. Mlanahan. Mr. Kales represents the other defendants in the case. He's going to address the conspiracy and emotional distress uh uh claims, and I'm going to address the retaliation claim. He may also address the retaliation claim, but we're going to split our argument up in that manner. Um, the plaintiff, Mr. Williams, as you know, exercised his first amendment rights in an encounter with officer Mlanahan uh in which uh he recorded that encounter where officer Mlanahan charged him with trespassing. He then later exercised his sixth amendment rights when he defended that charge first in the general district court and then on appeal in the circuit court where that charge was dismissed. He contends in this case that the officers, the defendant officers, retaliated against him for his exercise of those rights, as I've just described, by in paragraph 33 of the Second Amendment complaint, misrepresenting facts on a police crash report for an accident that occurred some eight months after he had he had exercised his First Amendment rights in recording the encounter with Officer Mlanahan. And 15 days after the trespassing charge was dismissed, that's when the accident happened. And he alleges or claims that the officers, the defendant officers, um all misrepresented facts on one police crash report and that was the retaliatory act. The court, the district court found that was insufficient to state a claim for retaliatory uh retaliatory claim under section 1983. And the in order to state such a claim, in order to uh pursue such a claim under section 1983, the claimant must establish that there was a retaliatory adverse act. And that act must be material. And as council said, it can't be dimminimous. It can't just be an inconvenience to the claimant. Um it must be material. And what is material? the act must likely deter the person or a person from exercising their constitutional rights in the future. So the question here is whether misrepresenting facts on a police crash report would likely deter one from defending themselves in a future criminal action unrelated. That's the Sixth Amendment claim. and whether misrepresenting facts on a police crash report would likely deter someone from in the future not exercising their first amendment rights, for example, in this case by uh recording the encounter recording a future encounter with a future police officer. The district court correctly said that it would not deter or chill such exercise. And central to the district court's ruling is the fact that in Virginia, a police crash report or police accident report is pretty useless. It can't be used in a criminal proceeding, it can't be used in a civil proceeding. >> Well, you know what? Here's something I don't get at all. Um, even if you think about the retaliatory impact just as really narrowly defined to just this allegedly false accident report, I don't see why that wouldn't be quite material because officers can testify and the report tells you how they're going to testify. And in fact, I found Virginia cases saying they can also use the report to refresh the officer's testimony at their accident trial. So, how does this not tell Mr. Williams if you try to sue this other driver, these police officers are going to testify to wants him to report and if they forget to, they can use the report to refresh their memory. >> All of what you said is absolutely correct. The officers can can use a report >> to refresh their recollection, but the report itself is inadmissible. >> Okay. But I mean, the question is, will this deter him and might act to deprive him from bringing the right to bring this case or his property interest in this case. We know the police officers by hypothesis none of this has been tested are going to get up and lie on the stand in a way that will prevent you from recovering. That seems quite tangible. >> Well, that's an argument that the that a false police crash report would deter somebody from bringing a personal injury claim in civil court. >> It's okay, >> which is distinct. It said knowing that the that if you exercise your rights, the result will be you're declined of your property interest in your potential recovery from an accident that is a very tangible material impact. We usually think being deprived of a property interest would be enough to deter someone from exercising their rights. But but the the issue is whether or not there's a uh whether or not there is a chilling effect on the exercise of first and sixth amendment constitutional rights, not whether or not there's a chilling effect on the exercise of a right to bring a personal injury action. >> Assume hypothetically it will cost Mr. Williams $50,000 that he exercised his sixth and first amendment rights which resulted in a false accident report which he now knows will deprive them of what would have been a $50,000 recovery. If it costs you $50,000 to exercise your First Amendment rights, I think that has a deterrent effect. Next time you're thinking of exercising your First Amendment rights. Tell me where I got that change. >> Okay. So, let me make sure I understand the hypothetical. Um, >> it's not a hypothetical. It's basically until >> Well, he he pursued his personal injury claim here. So, he didn't he was not deterred um in in that respect. >> Question isn't was he deterred from bringing You say that's not the question, >> right? >> If this false accident report will cost Mr. Williams a recovery he otherwise would have gotten, that will deter the exercise of first place. >> It may, but it but it can't because it's a it's inadmissible in evidence. It can't be used in the civil proceeding that he brings for personal injury. It couldn't be used in a criminal proceeding. there was no criminal proceeding, but hypothetically if there was for uh a DUI or something like that, it can't be used there. Uh and it can't be you but but the point that the district court made is that it can't be used in a in a civil proceeding and therefore uh a document whether it's true or false, whether it contains accurate information or inaccurate information is irrelevant because it can't be used in a proceeding. And if it can't be used in a >> impeach, can it? It cannot be used to impeach. >> You mean to tell me that if the it's the police off this and this is a counter factor. It's not a hypothetical but a counter factor here, >> right? >> The police officer made the report that was made here with the falsities in it that kind of if he went to trial and said, you know, uh it didn't happen that way. It happened this way that the defendant really did, you know, was driving fast and all those kind of things of that. you being telling they couldn't bring that up and say, "Wait a minute." Impeach him and said, "Here is the accident report that was written that day and impeached that recanting, if you will, testimony trial." >> It could be. >> In other words, if the police officer testified inconsistently with >> Absolutely. If he changed and told the truth and said, "No, it wasn't like that." The defense is going to say, "Wait, excuse me. Is this not the report you fill out that day? Didn't say anything about I was speeding. I was It was alcohol." Sure, it does. It can come in as impeachment, >> right? If if the police officer test who prepared the report testifies contrary to testifies the facts contrary to what he wrote on the report. >> So it can be used >> but this but the but the report by statute itself the by statute the report is for the use of the department of >> you can't use it offensively as an offense as a source. Correct. That kind of thing. You can't say well >> I know you're you're you're liable civily because police officer's report supports that. That's when you can't use it, but it can be used for impeachment >> in the context of retaliatory u uh adverse material adverse actions. I mean the the obvious one is arrest. You arrest somebody for for you know pretextual for exercising >> happened the first time >> their constitutional rights >> with Mr. Williams. I mean that's >> but that's not what's alleged. But when you look at the context here, right, your position is, and I'm just taking the allegations as true, fully understanding this has not been tested yet, but so first, Mr. Officer Mlanahan who lies about a trespass um arrests Mr. Williams um lies about it in court, gets Mr. Williams falsely convicted, and Mr. Williams shows his video and he gets the case dismissed. And then a few days later, Officer Mlanahan files a false accident report in his case to retaliate against him. And your position is all of that happens. But a reasonable person in Mr. Williams's position would not feel chilled in exercising his first amendment rights next time he runs across. >> But the second amendment complaint only alleges that the only retaliatory action taken was the misrepresentation. saying when I think about whether that misrepresentation you have told me the standard is would a reasonable would this action be likely to deter a reasonable person >> reasonable person in Mr. Williams's position this officer lied about me once it got me arrested he lied about me after I got that one dismissed he lied about me again in a false accident report he's not supposed to worry that this police officer will be back for his third term if he tries to his first amendment rights against him again because I don't see how a reasonable person would not come to that conclusion. >> The only allegation in the Second Amendment complaint is that the is for a retaliatory act is the preparation of a police crash report that is inadmissible in any proceeding. And the district court correctly found that that an inadmissible police report uh whether it's false or true or not is not sufficient to deter a reasonable person. And I see my time has expired so I'm going to let Mr. Kale's uh get up here so that he can uh further elaborate on this. Thank you. I appreciate it. Good afternoon. My name is Jim Kales. I'm here on behalf of the other defendants other than Mr. Mlanahan. I join Mr. Hedrickk in explaining that the And to point to the court, I don't think my clock's ticking. I I want to get all the fared. I I don't want to get more time than anybody else should. So, um, Sergeant Mitchell will be likely dismissed. She has been dismissed in the state court proceedings that are pending in the circuit court for the city of Virginia Beach, Court of Plenary Jurisdiction of the Commonwealth. And one thing I will add in response to Judge Harris's questions to opposing council. Um, there is a little bit of a slight nuance in terms of the procedural history where we are in that case. There is in about 3 weeks time a motion a demur hearing which is a state practice of a motion to dismiss. Um however that will be the second demur hearing. Um, in June, early June, uh, or no, I'm sorry, late June of this year, uh, the circuit court for the city of Virginia Beach conducted a hearing on the initial complaint that was filed there on the intentional infliction of emotional distress and the demur filed by the defendants and sustained the demur. The court granted leave to amend. So we are in a position in the state court with respect to the supplemental jurisdiction issue of a court of the commonwealth already having made a substantive ruling and we are well along the path of that claim proceeding in the circuit court for the city of Virginia Beach. Um I believe >> and your point is what is the authority here in the federal court? that the district court's decision to decline in supplemental jurisdiction in the state law count of intentional infliction of emotional distress was correct. and that the plaintiff appellant here by agreeing to proceed forward in the circuit court case without seeking a stay pending this appeal or anything of that nature has essentially weighed the argument that they are entitled to this matter being remanded back with an intentional infliction of emotional distress claim a fixed to it. Um, it it would create a quagmire between issues of comedy and federalism to allow alternate determinations, particularly once the substantive ruling has already been made. It is not a final ruling. I'm not representing that to this court in any way, but it is still nonetheless a ruling that the pleading from which the district court here declined exal jurisdiction is based. Um, so I would sub submit to the court that the dismissal of the supplemental jurisdiction count was without prejudice by the district court. The plaintiff has proceeded properly and um, promptly to file. I think it was a day or two after the district court decision they filed in the circuit court of the city of Virginia Beach in order to have the intentional infliction case preserved. Um, I would also submit that the request specifically with respect to both the retaliation, I'm sorry, both the conspiracy and the intentional infliction count is somewhat strange. They are asking for the court to send it back for reconsideration. Um the relief requested in both the opening appellants brief and the reply brief with respect to the conspiracy count and with respect to the intentional infliction of emotional distress count is not to seek reversal. It's simply to direct the court to reconsider them. Um I would submit that the court had considered them. There's no basis for >> but that's what we always do. I thought that was exactly right. The district court relied to dismiss the conspiracy claim on the fact that the court had found there was no retaliation claim. And so in the absence of a constitutional violation, there can be a conspiracy to defide someone constitutional rights. But if we disagree on a retaliation point, then we would send back the conspiracy question so that the district court can consider it now understanding that there was a constitutional violation. With respect to conspiracy, I understand your honor's point and I don't disagree with respect to intentional infliction of emotional distress. Nothing in the elements of the intentional infliction of emotional distress said because there is no federal properly before me. I'm not going to exercise supplemental jurisdiction over state law claims. If there is a constitutional properly in front of the district court, assuming hypothetically we disagree on retaliation normally. And I I take your point about the the existence of the state proceedings, but normally we would also just say now you should reconsider whether you want to exercise supplemental jurisdiction knowing that you do have a constitutional claim that will go forward. >> Under ordinary circumstances, I would agree with your honor's representation and and the procedure forward. In this case, it is different for the reasons I've already explained. Turning to the conspiracy count, it's meaningful to point out that counts one, count three, and count four of the second amended complaint have all essentially been abandoned on appeal. There's not really any due process issue before the court, nor is there an equal protection issue before the court. It does not appear that that is the basis upon which they are claiming their conspiracy. Um, so unless the court wishes me to entertain those issues, I'm not going to address them here because I do not believe there is an adequate basis set forth in the briefing to explain that they are seeking relief because of a conspiracy to violate equal protection or a conspiracy to violate due process. Um, with that in mind, however, everything which Mr. Casey has explained with respect to the retaliation count. I believe explains and I think clearly explains why there is not a retaliation and without the retaliation there cannot be a conspiracy. Um I I represent officer Van Van Sergeant Van Fawson who is the one who is on video making the inmperate statement. Um, and we do disagree with the district court in footnote 9 where Judge Davis carefully lays out the act requirements um that would potentially support part of the conspiracy claim. We don't quibble with those. We just disagree with them. They're not before your honors today. Um, and they're not here on appeal. We do believe that it is necessary for there to be a constitutional violation. There can't just be an agreement to do the constitutional violation. I think the Richie versus Jackson holding and the Hinkle versus City of Clarksburg cases make clear that there has to be an underlying deprivation. There can't be simply an agreement among officers. In point of fact, these crash reports um and Mr. Casey and I have worked together for years. These crash reports are quick reads of what happens and they are filed promptly after the accident. They're filed without a huge amount of investigation unless there are circumstances from a particular accident that would require them say a death investigation or something along those lines. Those tend to get filed later because these crash reports are not evidence there. The Supreme Court of Virginia has not allowed them to be admitted for any reason. While there may be a record upon which a police officer may be cross-examined at trial if they test if he or she testifies inconsistently with that statement, it is nevertheless not admitted itself into evidence. And even a reference to it as being a crash report is problematic under Virginia juristprudence because the statute plainly as interpreted by the Supreme Court of Virginia in the ACUR case or ACUR case makes clear that they do not come into evidence. And in practice, even a reference to a crash report is a very good way to have a circuit court judge in the Commonwealth of Virginia very irritated with you. um and potentially even give an admonition um and a curative instruction to the jury that they are not to regard. >> But the officer can testify, correct? >> The officers can testify. Absolutely. >> But don't you think officer's testimony will somewhat mirror what the the u report says? In in the ordinary case, I believe it would because again, not conceding for a moment the allegations that these statements were intentionally falsely presented or anything of that nature, but as alleged. >> So you you right, you're not conceding, >> but yet this was dismissed for a motion dismissed. It it was dismissed on a motion to dismiss because the district court found >> as a matter of law a person couldn't be intimidated by the police officers saying these things and say that's the guy who did this as a matter of law that was a ruling right as a matter of law as I understand Judge Davis's ruling a fine district judge >> um who carefully weighed the evidence um we did not have a hearing in this um as council explained >> there was no evidence I'm sorry. Fair enough. >> I stand corrected, your honor. He weighed the allegations. >> No hearing. >> No hearing, your honor. >> So what? Did he weigh facts? >> He weighed the allegations contained in the Second Amendment complaint. >> Did he weigh facts? >> He did not find facts, but he >> What did he What did he What did he What did he weigh? >> He weighed the allegations contained in the Second Amended complaint against the applicable law. >> So based solely on the pleading. >> Yes, your honor. as a matter as a matter of law. So no factual questions. What about the fact you stipulate that that this was based on animous? >> No, your honor. >> Well, then how do you resolve that without a hearing? >> That that's a summary of judgment issue, your honor. And I I'm about to I'm out of time. I if >> I know we didn't get that far motion dismiss, was it? >> It it was a motion to dismiss. However, your honor, if the allegations contained in the Second Amended complaint in and of themselves are insufficient to create an issue of constitutional moment, then the district judge is obligated and should dismiss the case. That's what we believe Judge Davis did in this case. But did they plead? Did the plea the plea was that that they pled that was animous deliberately done because what the pri counter encounter was with the police officer >> that was pleaded your honor. However, the necessary element to the retaliation count is not necessarily that there is animous. There has to be the the effect of chilling a reasonably minded person. >> Yeah. And animus makes it real clear. not not reckless. It's not not stake is animous. >> It it is there was an allegation of animus. Honored, the district judge weighed that allegation in light of the applicable law and we submit correctly found that there was no constitutional violation because under the circumstances of this case, particularly as it related to the sole allegation supporting the retaliation being the creation of an allegedly false police crash report that could not be used in any court of the Commonwealth for any material purpose that would cause that document to be admitted into evidence. >> So I I sort of expected this case to be about something else. But as I understand it, your position is the standard is would would this action the allegedly false accident the circumstances in which was created? Would that um likely deter a reasonable person from exercising his rights? That's the question. >> Yes, sure. Okay. Um what if um instead of filing a false report officer on the plane and he shows up at the accident and says to Mr. Williams like you again, if you ever fail me again, you'll be sorry. Would that likely chill somebody in exercising his first amendment rights to fill an officer >> under those circumstances and without doing violence to Mr. Casey's representation of officer Mlanahan. That is a much closer question than what we have here. That that is a close question. >> Yes, your honor. >> Argue either way. >> Yes, your honor. But in the circumstances, >> I know people who are of much sort of firmer uh much firmer mind and body than the people I know because most of the people I know of a police officer saying you will be sorry, they will be deterred. I if that were the facts of this case, your honor, I understand and I agree it would be >> I guess I don't understand why filing a false accident report isn't that like to the tenth power because it's not just a threat that I'm out to get you. It's a performative act and I will do it by lying about you. But that seems really um uh like that might strike a reasonable prison quite frightening. I I understand, your honor, but if I may counter hypothesize um for lack of a better word, um if this were a circumstance where an officer were to have for some reason charged the plaintiff in this action, Mr. Williams, with a traffic infraction, with you know, something that were found in the wreckage of the vehicle, something that would in that context be a false accusation, that is a much different animal. That is the kind of deterrent conduct that would chill um and be a retaliation, an affirmative loss and injury. In this case, Mr. Williams did not have any of that. A police crash report is not a summon. A police crash report is not picked up by any credit reporting agency. It's not something that creates a detrimental effect to Mr. Williams in this case. He in the state law case was and and when I refer to the state law case, I'm referring to the action against Mr. Aean, the tort viser in the underlying tort case, the person with whom Mr. Williams had the crash, which has since been resolved. Um, so in terms of there being any loss, there's no allegation in the Second Amended complaint that the resolution of that case, which admittedly occurred after the filing of the Second Amended complaint, but there's nothing on brief and there's no supplement to the record or the allegations contained in this case that indicates that the failure of the alleged failure to file a completely accurate police crash report caused any detriment to Mr. Williams in the underlying tor case. But it is it is a detriment. We talked about the anxiety and a lot of things that you told me he's not pleading that I lost money in the civil case. But you think about this council, I know you represent your client, but can you imagine in a in an ordered society, one of the things I think all of us depend on and rightfully so that police officers are given the respect and authority to have arrest authority where weapons and those things because if you're in harm's way, you depend on them to respond to you. They don't make perfect decisions. But you I don't think you depend I mean say you know what I'm investigating this app as a player here that I'm going to write down on this report something that's totally inconsistent with the facts. That's what's right. >> That is what's a chilling effect too. I mean, and and you know, I'm a lawyer and a judge, but if I throw the police officer around and said, you know, like whenever I see you, you know, and this is not the first encounter, that would be quite disturbing. I I don't know what per universe you're in, but the universe I'm in, that's dangerous. That's the thing that unfortunately, not until this case, lead to people dying with encountering police officers. And those are people that are strangers. >> Not to mention somebody who's already targeted and say, "Oh, that's the person who gave you shit." That's what he said, right? >> It is in essence. Yes. >> I don't know why the council was so, you know, sipper with that. Yeah. He said, "That's the one, isn't it?" >> And then all this proceeds that is that is disturbing. I find it to be quite disturbing in an ordered society and democracy in a country constitution. We depend on police officers. They're not perfect, but we don't depend on them to say, "I'm going to change the scenario because I still remember you." And they remember you. You don't find that disturbing with respect to you. You don't find that disturbing >> in the context of this case. I do not find it disturbing. And and let me explain why, if I may. Again, I'm I'm far over my time. because I'd like to hear why you don't find it. >> Um, I don't find it disturbing because this is a circumstance where there is a standoff between Mr. Williams and the officers who were discussing his prior interaction with officer Mlanahan. I I may be wrong about this and the com the second amendment complaint isn't very clear, but in the context of this, I believe Sergeant Van Fawson was talking to other officers nearby essentially saying, you know, that's the guy that gave MLAN a ration of [ __ ] Okay, that is not a great thing to say, but it's not something that from a distance where Mr. Williams is far away, isn't privy to the conversation. It's not a proximal issue where Sergeant Van Fawson was standing directly over Mr. Williams with the other officers saying that's the guy. That's a different issue. But in the context of this case, your honor, I don't find that disturbing because police officers, while they are not perfect, they are also human. And there has to be a little bit of grace for them to be able to communicate with each other in phrases and and language that isn't maybe what you would say in this courtroom other than discussing particular language. >> But he went beyond the verbal, didn't he? And it's alleged the report. >> It they alleged forget about whether it's admissible or not. the report >> the the report yes your honor >> just following through with the verbal color >> I I believe there were different authors um but >> Van Fson I don't believe made the report I believe that was or officer stone um >> the allegation is that they sort of did it together >> that is absolutely the allegation >> so I take your point about people's safeties I mean people safety should have a little bit of grace but Not what that's not the allegation. There's no indication this case will be filed because of what was said at the accident site. It's the false report. >> Yes, your honor. The the false report again which grace for that too. I again allegedly false police reports. I don't think that is something. Well, it it it takes us back to an issue that was addressed in the district court and argued on brief by Mr. Casey on back from Mr. Mlan and something that actually came up in the state court proceedings. But the Brisco versus Lew holding um which imposes absolute immunity for officer testimony under it. Um there statements by police that are not accurate should not be made but do they raise an issue of constitutional moment and in a context where >> well not when the issue is inaccuracy >> I'm I'm sorry >> not when the question is inaccuracy they don't and they shouldn't they're inaccurate that's not that's not what they pled this case is not pleading inaccuracy >> it it is not pleading it >> no it's not a case about is alleged in the pleading this is not a case of inaccurate. Oh, he misjudged. She say it should have been 200 feet, but they put 250 ft. They said it went to the left, no, they went to the right. This is not a case. It's pled inaccuracy. This is a case of animous in retaliation. That's was pled and it was not without even a hearing. It was dismissed not as summary judgment, but dismissed without even a hearing. >> Yes, your honor. >> Yeah. with with respect to inaccuracies every that there's inaccuracies of an innocent nature where as your honor is giving examples where innocent distance mistakes are made. The distance I have between myself and judge Flanigan for instance I may say is 20 ft. >> Um every client I've ever represented who I've ever asked to give a >> reason this is that this is not that case >> that this is not that case but there is a second type of inaccuracy and that's the one in this case. And what's that second one? >> An intentional inaccuracy. They are alleging an intentional inaccuracy. But under Brisco versus Leu, >> absolute immunity applies to police officers who are intentionally inaccurate in giving false testimony >> absolute immunity. >> Absolute immunity. >> Pretty good. Qualified immunity. Absolute. My my reading of Brisco versus Lei Hugh is that officers who testify >> who deliberately >> point somebody out as having prior situation and animals they have absolute liability >> immunity. >> I mean I mean immunity. >> Yeah. Yeah. That that is my understanding of the holding Brisco versus Lu LA. >> Uh I believe it's Supreme Court of the United States. >> Supreme Court. >> Um >> this is like >> No, go ahead. And so and that would extend to sort of false >> it would >> because I don't really >> the context is slightly different that is it it immunizes testimony that is given in open court and >> your whole point is they have nothing to do >> correct so with respect to the false statement never getting into the court um we're not even to Bristo versus Lew I I'm not saying it very well because this is kind of evolving in my own mind as I'm standing here. >> Um so forgive me for that and forgive me for also having admitted that. Um but with respect to I if if a purposeful and intentional act can be rendered immune that is a police officer who lies in an inculpatory way. An interesting flip of the Brisco versus Lee holding is that the opposite isn't true. If there is false testimony by a law enforcement officer that exculpates someone, then that actually can be the basis of liability. As I read Bristo versus Leu, owing back to the roots of 1983 that relate to um law enforcement officials giving false testimony, clearing people who had done violence against minorities in the reconstruction south. That that's kind of my understanding of it. Um but again not here. If an intentional and culpatory statement can that comes into court and is weighed by a jury in a criminal proceeding can be immunized and it does not raise an issue of moment with respect to the rights of a criminal defendant, then I submit that a filing of a crash report that will never be admitted into evidence in the ordinary course of legal proceedings in the Commonwealth of Virginia does not rise is any higher than the intentional act of someone testifying in court? >> It doesn't really matter. I guess probably doesn't matter. It seems a little bit apples and oranges to me. Um I think we have a lot of rules around testimony and courting actions judges, prosecutors, and jury witnesses. And I'm not sure that extends beyond that particular context, but I suppose if we hypothetically were to This goes back to the disport. You could raise your immunity arguments or immunity adjacent arguments there >> and I understand your honor's observation with respect to apples and oranges. I would maybe say apples and pears. Um but thank you. On behalf of the defendants, I would ask that the matter be affirmed. Thank you. I'm far past my time and I appreciate the court's place. >> Thank you. Mr. Hendrick, you have a few moments reserved. Mr. Heather, does the outline of the procedural posture that was just given to us in state court um suggests to you any changes in your recommendation to us? >> Uh at at this moment, uh no, because uh there's still been no final action on the state court. Uh there's no final ruling in this case or in the state court case on the emotional distress claim. Uh I certainly recognize that you know in three weeks that case could be moot. Uh we are not asking for a second bite of the apple if we lose in Virginia Beach and we get another chance in the federal district court in Norfol. Uh so it it may certainly be moot at some point. Um, I'll certainly, you know, notify the court if something happens in the meantime before this court has issued a ruling. Uh, but I mean, I have no idea what will happen in 3 weeks in Virginia Beach. It could be delayed, continued, and never get past the pleading stage and in which case we might uh uh ask that the federal court take it at that point if this case is remanded. Uh I certainly recognize that that could change based on uh what happens in that case in the near future. >> That's a state claim. >> That's the state law emotional distrust claim, >> right? Is that not the federal >> correct? >> Uh on the conspiracy claim, let me I can agree with Mr. Kale that if there's no con no constitutional violation, we don't have a conspiracy claim. Our case is that we do have a constitutional violation for retaliation. Uh and if we do, then the district court ought to reconsider the conspiracy claim. Uh on the retaliation claim, um uh Mr. Kale's made a lot of arguments. A lot of them come come down to I think, you know, we don't think the police officers, you know, acted that way on purpose or maybe they were just talking. And I think that's certainly a defense they could raise, but it ought to be on the facts and it ought to be a trial. And that's what we're asking for here is for a remand in this case to let us put on the evidence and let a jury decide whether this would chill an ordinary person and exercise of their rights. >> Thank you. >> Case in case uh we'll ask the court to adjourn the court until tomorrow morning at 9:30. We'll come down. In November of 2024, the United States Court of Appeals for the Fourth Circuit issued a 3 to 0 published opinion in his favor. The court ruled, "The police intentionally falsified the accident report in retaliation for Brandon's exercising his First and Sixth Amendment rights." The opinion added, "These circumstances would deter a person of ordinary firmness from recording police activity or defending themselves at trial in the future." The ruling vacated the dismissal of Brandon's claims of conspiracy and intentional infliction of emotional distress and sent the case back to trial. >> This is the guy that gave a claim. >> I don't know. >> Brandon now stands at the center of a civil rights case with far-reaching implications. Officers allegedly punished him for exposing police misconduct and then tried to bury the evidence under falsified reports and deleted footage. But because he persisted, he's helped to establish new federal president. His federal trial begins on September 16th, 2025. And when there are updates, I will be sure to let you know. In the meantime, let me know what you think of this encounter. 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