West Virginia Excessive Force Litigation Update: Sawyer Case
We are currently litigating the defendants’ motion for summary judgment in Sawyer v. Asbury, et al. Our response contains a fairly thorough walkthrough of excessive force law for most types of excessive force claims. Of course this is tailored to the 4th Circuit as much as possible. But the law is similar throughout all of the circuits.
Two of the exhibits:
Victory in another West Virginia civil jury trial
We just completed another civil jury trial on Wednesday, and won. This was in Greenbrier County. We got everything we were asking for short of about a thousand dollars. I truly do respect the fact that we have a system where we take everyday citizens from across the board and put them in the role of the ultimate decider of factual issues – to the point where they go through your numbers and decide what’s fair and what’s not. Truly remarkable when you think about it.
Speak of the devil: Parkersburg Mayor Calls the FBI
It wasn’t a week ago that I mentioned the newspaper article regarding the indictment of a Parkersburg Police officer. Obviously I have some experience with Parkersburg. I settled a case against the Parkersburg Police Department about a month ago, and I also have one other case pending there in federal court against the county. In my last post I inquired as to when we would hear from the Parkersburg Mayor Bob Newell. Well we did hear from him. According to the latest news reports, he has now called the FBI on his own police department.
As the old saying goes, be careful what you wish for.
Parkersburg Police Officer Charged with Battery
I’m not sure what the deal with Parkersburg is, but it is in the news again. Parkersburg Police Officer Josh Densel is charged with battery for hitting one Jerry Seabolt while being booked at the holding center. When I saw this headline, I said to myself, obviously it was videotaped. According to the News and Sentinel article it was indeed caught on video.
I wonder when we are going to hear from the Parkersburg mayor. I guess he isn’t grandstanding in the media this time because there are no lawyers involved as of yet who can be blamed. The allegation has been made that the Parkersburg Mayor encourages his officers to beat individuals. This may be a good case to further develop that allegation.
Parkersburg must be an odd place. I once talked to a man who was from that area about police beatings in Parkersburg. He was an older gentleman, very conservative, very successful in life. You would think that he would place a high priority on liberty. However, it was his opinion that the police should be free to beat anyone up whom they deem as a criminal. This just blows my mind. It may be something in the water up there.
Federal Lawsuit Against Parkersburg Police Settled
The Tim Mazza lawsuit, which was pending in the U.S. District Court in the Southern District of West Virginia, is now settled. In police lawsuit cases, the settlements are not necessarily confidential. This case was settled for $100,000.00. Another case involving two of the same officers was settled a couple months prior for $70,000.00.
Link to a news story on the Mazza settlement.
Link to a news story on the Ratliff settlement.
The funny thing in this case is that from day one, in the newspapers, the mayor and police chief blamed us lawyers and tort reform in general. They publicly announced that they would not be settling this case and that they would handle the matter in court. Of course this had to be addressed once the decision to settle was made. In the News and Sentinel article announcing the settlement, they blamed the decision to settle on their insurer.
If I could get an insurer to settle a frivolous case for 100 grand just to avoid the time and expense of litigation, I wouldn’t be so picky about which cases to accept.
Federal Lawsuit Filed Against Morgan County Sheriff’s Department and Deputy
We just filed this case in federal court against the Morgan County Commission (i.e., Morgan County Sheriff’s Department) and Deputy Seth Place for the 2010 shooting of my client, Ulysses Everett. He was shot twice through the front door of his home while unarmed. There is a video.
ETA: News article from The Journal newspaper.
News coverage of high-profile criminal cases continues to disappoint
I have posted before about the danger that ignorant media coverage poses to criminal cases – especially TV news coverage. The reporting is just awful. One particular local channel brags that they are helping law enforcement clean up the criminals out of our community. In reality, they are just posting mugshots and reading law enforcement press releases.
I was in court yesterday for a pretrial hearing in a high profile southern WV case. Up to that point, the media had not appeared at the prior court hearings – most likely because they didn’t know about them. Somebody had apparently tipped them off about the hearing taking place. Some prosecutors, when they realize that their plea offer is not going to be accepted and that they are going to have to try the case, will get the media involved which effectively poisons the jury pool.
The TV news crew filmed the hearing, obviously taking careful notes about what was being said (I say that sarcastically). Instead of broadcasting the audio from the hearing, they substituted their reporter’s voice, which was completely misstating the substance of the hearing. Then, as my client and I were leaving the courtroom, they ambushed us putting cameras and microphones in our faces. The reporter asked, “what do you want to tell the victim’s family?”
The funny thing about this is that 30 minutes earlier we were all quietly sitting in the courtroom, along with other attorneys and defendants, waiting for the judge to appear. They had every opportunity to film my client at that time. They had every opportunity to request an interview or a statement, or whatever. They had every opportunity to ask questions about where the case was heading. I’m not saying they would have gotten any information from us, but they made no attempt. They are obviously not interested in the facts, just sensationalism.
Two more thoughts of the day: 1) Without video proof, police misconduct didn’t occur; 2) Sex offender registration mania is out of control
It blows my mind that this is on video, but it is. A scumball cop in Ohio abused his authority and violated the civil rights of an innocent citizen. He basically threatened to execute the guy, etc. Of course the poor guy is then prosecuted for “failure to notify” that he had a concealed weapon permit and was carrying. I heard through the grapevine that in the criminal prosecution which ensued (of the victim of course – not the cop) the prosecutor offered to dismiss the charges if the victim/defendant signed a release of liability foreclosing any possibility of a lawsuit over civil rights violations. If this is true (and I have no proof that it is), the prosecutor should be prosecuted for attempting to cover up a crime. I just found this statement from the police chief in that jurisdiction:
I want to assure our citizens that the behavior, as demonstrated in this video, is wholly unacceptable and in complete contradiction to the professional standards we demand of our officers. As such, appropriate steps were placed in motion as dictated by our standards, policies and contractual obligations. Those steps included: The officer immediately being relieved of all duty. The incident has been referred to the Internal Affairs Bureau for what will be a complete and thorough investigation. As bad as the video indicates our officer’s actions were, there is a due process procedure to follow. That process is designed in the best interest of both our employees and the citizens at large. That process will be followed in this case as in all others. Anyone shown to be in violation of our rules and regulations will be help appropriately responsible as dictated by all the facts. ~Chief Dean McKimm
The 800 pound gorilla in the room is this: if the video did not exist, nobody would believe the victim. And it blows my mind that the video was recovered. By the way, if you watch the video, take note of the illegal search of the backseat of the car which happens almost immediately after the stop. This sort of garbage happens all the time. After the fact the cops will claim to have received consent to search the vehicle. There was no consent, and there was no probable cause to search.
Secondly, there is a story out today about 14 year old boys being required to register as sex offenders due to a high school prank. It’s time to tell the whining hippy women and the “new-castrati” that enough is enough with this sex offender garbage. Of course it has its place with real sex offenders. But this has gotten out of control. I’m tired of seeing this ruin the lives of good young people. The sex offender laws are too broad. Then once we label good people as “sex offenders”, it ruins their lives. Not only this, but it waters down the real purpose of having registered sex offenders. So what’s the point?
If you were wondering what the law is in West Virginia, it is basically this: if there is any conviction of an individual and the presiding judge makes a finding that the offense was “sexually motivated” in any way, that person then becomes a registered sex offender. It doesn’t have to be an actual sex offense charge.
Thoughts from the news: Casey Anthony and NC Troopers
Yes, once again it has been sometime since I have posted. I just don’t have the time that I used to to comment on various things. That being said, there are a few different things which have popped up in the news that I just can’t resist.
1. Casey Anthony. Good for her attorney calling out all of the talking head lawyers who gave their b.s. opinions on the case throughout the last several years, and especially during the last few days of the trial. He also gave the media “the bird”. I was really getting aggravated with all of the “former prosecutor”[s] running their mouth on every cable channel about how she was going to be convicted of first degree murder and about how good the prosecutors were. They are pretty much all the same. They are mostly blonde (sometimes brunette) females. Almost none of them could be considered unattractive or overweight. They have loud, big, mouths and holier-than-thou attitudes – especially if other females/children are somehow involved in the subject on which they are running their mouths. Fox News / CNN have determined that they are qualified to bestow their opinions onto us due to their looks, and due to the fact that they used to be a “prosecutor.” Then there is Nancy Grace. She is the queen of the former prosecutors. She actually does have experience. She is a defendant’s worst nightmare: a bitter loud-mouthed prosecutor who is willing to do unethical things in order to win.
It was courageous for these 12 jurors to acquit Casey Anthony despite the all-knowing public and media having already deemed her guilty. How dare politicians/pundits condemn the jurors for their decision. I have said it before and I will say it again: it is the “law and order” people in our midst who will be our ruination. They are obsessed with their own personal safety. The same people who claim to stand for smaller government and more individual freedom are often the first ones to condemn jurors for upholding our constitution. The reason is because they are cowards: they are afraid for their own safety and so they worship law enforcement. They are also playing politics and know that the majority of voters / people who watch the news are older citizens, who are also obsessed with their own safety. We need less laws, not more.
I could care less about Casey Anthony. I believe she was involved in her daughter’s death. However, it was very satisfying to see the prosecutor, Linda Drane Burdick, who was so pompous, arrogant and self righteous in her demeanor be brought so low by the loss of the century.
2. The North Carolina troopers who arrested the trial lawyer’s wife. Being a Tarheel, I have been watching what has been going on with the NC troopers and the trial lawyer’s wife. Again, it is sickening that politicians and supposed proponents of freedom and smaller government support police-state behavior. Even though NC, like VA, is a conservative state politically and socially, it is a police-state when it comes to law enforcement. For some crazy reason, conservative voters support massive government when it comes to Criminal Law – including its creation, enforcement and prosecution. Again, I believe they are either older people obsessed with their safety, or they are cowards (they place fear of personal safety over our country’s liberty), or they are obsessed with being politically correct (it is generally politically popular, especially where there are senior citizen voters, to be “tough on crime”.
Anyways, this trooper pulls over a relatively attractive woman driving a Lexus SUV. Big surprise. I have discussed before the intense security threat posed by attractive women driving expensive SUVs. The trooper, who of course sports the obligatory military-esque hairdo, asks the woman if she was drinking. She had a sip of wine at some banquet she was driving home from. The trooper then makes her get out of the car and asks her to blow in the portable BAC device. She refuses and instead opts to be taken to the real breathalyzer machine (they used to use “intoxalyzer 5000′s” in NC). In NC, you are entitled to call a witness for the test and the witness has 30 minutes to get there. Naturally she calls her lawyer husband. The husband shows up and she blows two 0.00′s. Obviously she is not intoxicated. There was no other evidence of intoxication.
North Carolina is a DWI state (or at least it used to be when I prosecuted DWI’s there), meaning that you couldn’t convict somebody of DWI based on the BAC alone. The officer would have to testify to erratic driving and/or the person failing field sobriety tests. You are legally allowed to be above the BAC of 0.08 if it was not proven that you were in fact intoxicated. At this point, since the lawyer husband is present and is angry at the kidnapping of his wife, the trooper refuses to release the woman, and instead is arrests her and keeps her in handcuffs.
So in essence, a private American citizen was taken in handcuffs out of her car and incarcerated/kidnapped. But that’s okay right? According to a local magistrate, and according to the cops, that is just standard procedure. He was just following procedure. These people ought to be run off of the taxpayer payrolls. How dare they tell the citizens that it is their procedure to arrest somebody with no probable cause and hold them against their will. Impeachment is also a procedure. Maybe the magistrate, and the storm trooper, should be prosecuted for kidnapping and battery. We can follow procedure to the letter.
The storm trooper then allows the woman’s husband to follow him to the magistrate’s office so that she could be arraigned and post bond, etc. While following the storm trooper the husband gets pulled over by another storm trooper – for speeding (despite the fact that he was following another trooper). The troopers report stated that he did not have any communication with the other trooper and that there was no set-up involved. First of all, anyone who would believe that is a complete fool. And anyone who would deny that it was a set-up is a complete liar. Since then, text messages have been released from between the officers which show that there was communication. Not only that, but the officers were discussing the lawyer and his wife and saying things like “f**k him” and “f**k her”. The second trooper, who pulled over the husband, sent the following text message to his trooper buddy, who was transporting the wife:
Trooper Smith then wrote at 12:31 a.m.: “TELL HIM IF HE WANTS TO COP AN ATTITUDE TO FEEL FREE AND COME BACK AND ILL S—– HIM THAT SPEED.”
How dare these troopers use their sacred position of trust to violate the liberties of law-abiding citizens of this country. Nevertheless, ignorant kool-aid drinker NC state senator Thom Goolsby decided to run his mouth in the media and support the troopers. These are the dangerous ones. The politicians who are so worried about keeping their political jobs that they are willing to throw innocent citizens under the bus. This guy is willing to allow troopers to kidnap citizens under color of law just to spite a trial lawyer and his wife. He needs to be run out of office.
Not only should these delta-force wannabes be fired, they should be criminally prosecuted for kidnapping and battery. If they are allowed to keep their jobs, it is telling every other crooked cop out there that it is okay to abuse their position of trust in order to spite somebody.
You never know what will happen in a civil jury trial.
It has obviously been a long while since I have posted. It seems that this time of year is the busiest, since everything rebounds from winter hibernation. I recently tried two separate tough civil jury trials. We won the first one, receiving a “plaintiff’s verdict”. It was a case involving breach of a contract to convey corporate stock. The case was close, but the jury ruled in our favor. The second case was an extremely tough car accident injury case. My client was hit by a power truck while attempting to make a U turn on an interstate. The defendant was found negligent by the jury, but my client was also found guilty of comparative negligence. In West Virginia, if the plaintiff is 50% or more comparatively negligent in the eyes of the jury, there can be no recovery. We were close. It was a tough loss. This was a Mercer County case. I thoroughly enjoyed the new “elmo” trial presentation system which was recently installed by the WV Supreme Court.
I felt more confident at the conclusion of the trial in the second case than I did for the first. Yet we won the first and lost the second. It just goes to show that you never know what will happen in a trial – especially in a civil trial.
West Virginia police oversight bill
There is currently a police oversight bill heading through the West Virginia State Senate, set for its second reading in the senate on Monday. The Charleston Gazette published an article confirming that both the West Virginia Troopers’ Association and the West Virginia Sheriffs’ Association are backing the bill. It essentially provides that:
The revised bill requires officers who move from one department to another to sign a waiver allowing the subcommittee to review their personnel file with that previous department before reauthorizing their police officer certification. It also requires the subcommittee to keep the database of all certified officers, which would be available to all departments.
Both versions of the bill give the Law Enforcement Professional Standards Subcommittee — formerly known as the Law Enforcement Training Subcommittee — subpoena powers to investigate problem officers that come to their attention.
See Charleston Gazette article. I think this would be a great tool to help weed out the bad officers. We all know who the municipalities are who attract bad officers. These municipalities complaint that it costs too much to send a new officer for the proper training and certification. Its easier to just hire an officer who was fired elsewhere and who is willing to work for minimal pay. ’Tis better to have no officers at all than to have untrustworthy ones. Period.
Anti Texting and Driving Ban Legislation
A form of the proposed anti texting and driving ban passed the West Virginia House of Delegates. A few days ago I posted about the West Virginia texting and driving laws on the West Virginia Car Accident Law Blog, noting that this legislation was coming up for a vote. It still has to pass the senate. It only allows for officers to cite motorists for texting and driving as a “secondary” offense rather than a “primary” offense. This means that cops cannot pull someone over just because they see someone texting and driving. There has to be some primary infraction or other reason to make the stop. Only then can the person be ticketed for texting and driving.
Honestly, even if it was a primary offense under the statute, it wouldn’t stop anybody. Who is going to be texting with a police cruiser right next to them? Most idiots who do this aren’t that stupid. The best enforcement for the texting and driving problem is civil trial attorneys who sue persons who injure others due to texting and driving. We can easily find out if someone had been texting at the time of, or immediately before, the collision.
See Charleston Gazette article today on the legislation.
As law enforcement unionization increases, so do your taxes
Growing up in Florida, I can attest to the sheer number of law enforcement officers (as well as full-time firemen), many of whom make unbelievable salaries and benefits. Of course these benefits are not supported by the market, they are the product of unionization. This applies to both liberal/decaying areas such as new england, as well as conservative/wealthy areas such as the coasts of Florida. Liberal areas are pro-big-government and pro-unions, which results in large pools of government employees, including in law enforcement. Wealthy/conservative areas generally have a large population of older citizens, who obsess about how many police officers are patrolling the streets. The results, based upon my observances, is a bunch of over-paid government employees who have nothing better to do than to obsess over catching you speeding. And if you are a decent-looking woman, there has to be enough back-up available to at least have three cruisers on the scene.
West Virginia has its problems, but this generally is not one of them. State troopers do get decent pay. However, most county or municipal cops get paid very, very little. I think all of our firefighters are volunteers. We should keep it this way. We should let the market dictate pay. There obviously is no shortage of qualified persons wanting to be in law enforcement. Why raise our taxes for no reason? Or maybe we should pay the better cops more, and fire the bad ones.
There was an article in the San Francisco Examiner to the effect that over 1,000 cops in one New York county are being paid over $150,000.00 per year:
According to this report from Newsday, a state oversight board is seizing control of Nassau County’s finances “in large part because County Executive Edward Mangano was unable to get millions of dollars in labor givebacks to balance his $2.6-billion budget.”
Of the county’s 2,400 police officers, 1,103 were paid in excess of $150,000 a year. Clearly, that’s not sustainable. And just last week Gov. Chris Christie, R-N.J., highlighted the case of Parsippany, N.J. where the town had to take out a bond to pay for the retirements of four police officers. Union rules allow police to be paid for any unused sick leave on retirement, and the four cops had accumulated $900,000 worth.
For years, public safety employee unions have extracted major salary and benefit concessions through implicit threat — striking police leave communities vulnerable. But now we’ve reached a point where communities around the country are quite literally out of money. Either the unions start making concessions, or start losing jobs.
Beware, it can easily happen here in West Virginia. It would be nice to have everything that everybody wants, but sometimes you just can’t afford to have everything that you think you need. We have been getting along just fine. Of course we have our problems, but at least we don’t have the problems that these governments in New York and California do.
Two Requirements for Concealed Carry in West Virginia
For concealed weapon carry permit holders in West Virginia, there are two very important items of documentation that you must have on you at all times:
(1) your West Virginia concealed pistol/revolver license, which of course is legally required to be on your person any time you are carrying a concealed weapon; and
(2) your attorney’s business card, in case you get arrested by a law enforcement officer regarding your firearm, or in case, God forbid, you are forced to use your firearm in self defense.
Step one is legally carrying the weapon. Its a whole separate ordeal explaining the situation of having to use deadly force to defend yourself or others to law enforcement and later, the prosecuting attorney. You should leave it to a professional. Have your attorney’s card laminated and keep it in your wallet along with your CCW permit card.
Of course, my business cards already come pre-laminated in a glossy finish and will stand the test of time in your wallet. If you want an attorney who knows guns and the many facets of self defense and gun laws in West Virginia, and who also has a proven track record of successfully defending gun charges, both through obtaining dismissals from judges and prosecutors and from obtaining acquittals from juries, call me and I will send you several of my cards free and with no questions or obligations.
Remember: saying “with all due respect sir, I would like to have my attorney here before I answer questions – I will call him right now” cannot be used against you. Even if they arrest you, your innocence can be sorted out after the fact. Make sure that your attorney gives you some way of contacting him or her after hours if an emergency arises. You have to use your brain.
You may want to say (especially if there is no attorney handy) something to officers, depending on the circumstances, so that they understand that it is a self defense situation. ”Officer, this was self defense, I was in fear for my life, I have a concealed carry permit. That is his gun over there lying next to his body. This man over there was a witness”. If an officer is going to support you, he will not push you to answer questions beyond that. If he is not going to support you, then there is no point in talking with him anyways.
Mayors of decaying cities are liberal, know-it-all, hypocrites
There was an article in the Charleston Gazette, a few days ago, “Lawsuit challenges W.Va. city gun laws” which explained that “a pro-gun lobbying group” filed a lawsuit (or lawsuits rather?) to overturn gun control laws in four West Virginia “cities”: Charleston, South Charleston, Dunbar and Martinsburg. The lawsuit was filed by the West Virginia Citizens Defense League and challenges Charleston’s limits on the number of handguns a person can buy in a month, as well as the city’s prohibition on possessing firearms on city property, such as in city parking garages.
Charleston, WV Mayor, Danny Jones, was quoted in the story:
Charleston Mayor Danny Jones promised to fight the lawsuit.
. . .
Jones noted the lawsuit was filed in the Charleston federal courthouse where firearms are prohibited.
“All we want is what they have. We want to be able to control our own property,” Jones said. “I don’t know how far these people want to go.”
Jones is one of these know-it-all hypocrite slum lords, who has a police force to protect him, and who denies his subjects, or anyone else venturing into his slum-dom, who are actually law abiding citizens, from possessing legally owned and carried concealed weapons. So if you go into a city-owned parking garage in Charleston, WV, by law you are not allowed to have the ability to protect yourself. Of course in a decaying city full of drug addicts, who would need a gun to protect themselves in a darkly-lit parking garage? Jones doesn’t trust us law abiding citizens to abide by the law.
Interestingly, there was an article in the Charleston Gazette today, that Mayor Danny Jones’ son was arrested for possession of heroin within the slum-dom. This was the statement from Jones’ “mayoral assistant”:
Mayor Jones had no comment about his son’s arrest. Rob Blackstone, mayoral assistant, said, “It is what it is. He’s 21 years old.”
There you have it. Law abiding gun owners just need to stay out of Charleston. Because we all know there is nothing stopping the criminals and drug addicts from obtaining and possessing guns on “city property”. Probably the first place they go to rob somebody will be the city parking garages.
I don’t think these mayors are stupid. They don’t actually believe that their gun control laws will protect people. They have a liberal and/or ignorant majority of voters, who have an ideological hatred towards guns and law-abiding gun owners, whom they see as right-wing fanatics. This fits their agenda. Moreover, the more freedom they take away from their subjects, the more power they gain. Their subjects are made to depend on their protection.
Maybe Danny Jones should worry about the crime/slum/drug problem in his city, instead of wasting taxpayer money promising to fight lawsuits and trying to “control [taxpayer] property”. He obviously has no control, including over his own son.
United Bank VP we sued to plead guilty in federal court
The State Journal ran a story today entitled “Guilty Pleas Expected in Development Scam” announcing that a former United Bank Vice President and loan officer who we sued as a part of our Walnut Springs Mountain Reserve civil fraud case, “R. Leon Cooper” has agreed to plead guilty to federal crimes as part of a plea deal.
The conduct supporting the plea has to do with fraud which occurred in the development of the “Lamplighter” subdivision in Lewisburg, WV. The story also noted that:
As part of the guilty pleas, both Carter and Cooper agreed to cooperate with the U.S. Attorney’s office on further investigations. Both Carter and Cooper also will forfeit nearly $2 million in valued property.
Carter is scheduled to enter his guilty plea Jan. 6 in Beckley. Cooper’s plea has been scheduled for Jan. 13 in Beckley.
Cooper was the former Fayette Planning Commission president involved in the failed River Ridge development in Fayetteville.
That development crumbled when sewer plans for the development were prematurely approved so loans Cooper facilitated through United Bank could be approved for property purchasers, according to lawsuits filed concerning that development.
Cooper also has been named in a civil lawsuit filed in the failed Walnut Springs development in Monroe County.
The Monroe County lawsuit is pending.
There also was a story in the Charleston Gazette yesterday that United Bank paid $15,000,000.00 in fraud settlements in 2009 alone. And we wonder why the economy collapsed…. The Gazette also ran a story on Friday on the Cooper fraud. The banks have been running absolutely wild. We are still sorting out how many innocent U.S. citizens were harmed due to bank fraud in the mid to late 2000′s. It is a big deal for these two West Virginia publications to start reporting on United Bank’s dirty laundry. For those of you who don’t know, United Bank basically runs the state of West Virginia. It is the “state’s largest bank” and many, many people and institutions in West Virginia are afraid of it. But once the cat’s out of the bag, it’s out. I suspect we will read more soon.
Ok, here’s more: A Virginia businessman, Osama M. El-Atari, 31, pled guilty to bank fraud totaling $53,000,000 in fraudulent loans. Guess who else was involved? That’s right, United Bank. A United Bank Vice President and loan officer (same general position as Cooper), Sissaye Gezachew, 32, was arrested and pled guilty to bank fraud for his involvement with El-Atari. See Washington Post article and FBI press release. Banks do not exactly advertise these incidents, or even explain them, to their customers or shareholders. In fact, they don’t even let their mortgagees who have been victims of fraud know about the fraud. Rather, they pretend it never happened and demand their money. Then they foreclose and threaten to garnish wages. Of course you would still be safer with United Bank than dealing with United Bank of Africa.
The Federal Officer Removal Statute 28 U.S.C. 1442(a)(1)
Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
Media coverage of criminal cases in WV and mercy for good people
Several years ago, and again recently, I discussed my frustration at the lack of impartial coverage of high profile criminal cases in West Virginia by TV news media. If you watch our local news around here you will notice two things: lots of mugshots and lots of interviews of police officers. That’s just about all you will see. Of course there are two sides to every story, but you will never, never hear them. You will only hear the law enforcement side.
Recently I became involved in just such a case. The media got involved and started broadcasting stories that just did not portray the situation accurately. They were causing a big stink and provoking people to call the prosecutor and law enforcement to demand that the book be thrown at my client.
The client is a good person; well-liked by just about everybody who knows him. He has never been in trouble before. He was studying to become a police officer. In fact, he was days away from getting a job as a police officer when the news station decided to ruin his life. He was volunteering at a local school with the marching band. He has a concealed weapon permit and had a pistol in his truck. His truck broke down on school property and he had to hitch a ride home with a friend. So he made the mistake of taking the pistol out of his truck and taking it with him. He made the further mistake of showing his friend the pistol as he was taking it out.
Subsequently, the principal was apparently reviewing surveillance footage of the school grounds, and observed the gun. Band director gets fired for having an unauthorized volunteer. The media picks up on it, and eventually people think we have just narrowly-avoided a Columbine incident. A crazy man wielding a gun at a local school. Somebody has to pay.
I encountered the TV reporter in the courthouse. She informed me that she had uncovered the identity of the gun-wielding volunteer and was going to run a story on it that evening. I then offered to give an interview to try and set the record straight. So I did, and I explained the accurate circumstances, on video. Of course when the story was run that night there was a lengthy interview of a sheriff’s deputy explaining that my client had committed a felony and they were going to charge him for it. They also broadcasted his name, age, and the location of his residence. And that was it. Nothing else. No explanation from me. They chose not to include any of my interview. Of course I wasn’t surprised. That is how it usually goes. When your client is charged they show his mugshot and broadcast his name and other information. When he is acquitted it goes unmentioned.
The reason is this: if viewers were to hear my explanation, they would say, “Oh, what’s the big deal about that? They are going to charge this kid with a felony and ruin his life over that?” The story would lose its sensationalism.
Certainly the argument could be made that law enforcement and the prosecutor have no choice. The guy was caught on video possessing a firearm (unloaded) on school property. There is a statute in West Virginia that makes it a felony, with a 2 to 10 prison sentence and no opportunity at probation or parole for possessing a gun on school property, whether or not unloaded, or on any property upon which a school function is occurring. To contrast that with other crimes, that is the same penalty for wanton endangerment with a firearm, which is like shooting a gun at somebody and missing. Brandishing a firearm, which is like pointing a gun at somebody but not firing, is only a misdemeanor with a maximum sentence of one year. So to a certain extent we can blame the legislature for creating an overbroad and unfair law. And I do blame them. Most of them are too cowardly to stand up for common sense and freedom. Attach a school or domestic violence to any vice or allegation of misconduct, and you end up with a capital crime. But I think there is also a place for mercy.
The police do not have to charge, and the prosecutor does not have to prosecute. They have that discretion notwithstanding the legislature. Not every crime has to be punished – nor should it be. Many people would disagree with that. But let those persons throw the first stones who have not themselves committed a crime without being caught or without punishment. In the end it is up to people like me to be the voice of reason to a jury. We are the last and best hope and saving the lives of good people like this young man. It is a heavy burden. You will see things differently when it is your son or daughter, who is a good person, but who has made some sort of mistake and ends up on the receiving end of the criminal justice system. It’s not hard to do. There are so many criminal laws that I do not know them all. Do you think this kid thought that he may have been committing a felony when he took the gun out of his truck? Of course not, yet we are ruining his life as a result. There is a place for mercy and compassion in the court system. But no legislator, prosecutor, sheriff, or judge gets elected by promising mercy and compassion.
Charleston Gazette v. WVSP
The Charleston Gazette filed a FOIA lawsuit against the West Virginia State Police yesterday in Kanawha County Circuit Court, seeking disciplinary information and records. They also published a story detailing the lawsuit, which contained a shocking paragraph (at least to me):
According to the six-page public report produced by the professional standards section in 2009, 13 troopers were dismissed that year based on sustained allegations, up from 3 the previous year. An additional 19 resigned prior to discipline. There were a total of 112 incidents where action was taken in 2009, according to the report.
Wow. 32 troopers kicked to the curb in one year? That is bad. And 19 resigned prior to discipline. That means that they are now working at a municipal or county law enforcement agency, and that the unwitting citizens of that jurisdiction have no idea of what misconduct their new officer had previously been constructively terminated for. It’s not easy to get fired as a law enforcement officer. For instance, look at the Travis Barker case, which was cited in the Gazette article today. We sued him for allegedly arresting the guy who he thought was having an affair with his wife, for a charge that was not illegal, and then beating him while handcuffed to the floor with no other troopers or witnesses present. And this is not the first accusation against him. Yet he still has the authority, as far as I know, to pull people over and shoot them if necessary.
So these 32 individuals must have really misbehaved.
Reporter Gary Harki provided more information on the Gazette’s blog, Sustained Outrage, about the lawsuit and about allegations against the WVSP. It also includes a copy of the lawsuit filed yesterday. Harki also provides links to some recent stories detailing the WVSP’s recent issues with disclosure:
These three stories from July do a good job of telling the other recent accusations:
W.Va. State Police stay mum on inquiries
And if this is the WVSP, imagine the statistics on county and municipal departments.
Federal lawsuit against Wood County Sheriff’s Department in the news
In the Charleston Gazette this morning is an article on a federal lawsuit I filed yesterday on behalf of Brian Sawyer, replete with a video of his beating at the hands of a Wood County, WV deputy. This is an excessive force case which is currently the subject of an FBI investigation, as the article confirms.
This incident would have coasted under the radar if it were not for Sgt. Dave Westfall of the Wood County Sheriff’s Department, who blew the whistle on what happened, and saved the surveillance video of the beating, providing it to the FBI after his superior allegedly told him to not throw his fellow deputy “under the bus.” Westfall is a veteran of the U.S. Special Forces, with a distinguished career as a law enforcement officer. He is also a certified self defense instructor and use of force instructor. It goes to show that real men do not need to use their badge to beat people up. Real men use restraint and act with a clear head. Real men do what is right and would never cover up a civil rights violation just because he can.
Unfortunately, now Sgt. Westfall is defending himself against the Wood County Sheriff’s Department. He alleges that he was caught by his superiors showing this video to two FBI agents secretly at a Cracker Barrel restaurant, and now they are seeking to discipline him for unrelated allegations. And we wonder why other officers do not come forward to report misconduct . . . . Their choice is to have a long, quiet career with no bumps in the road by staying quiet, or to do what is right and face persecution.
Now we all need to stand behind Sgt. Westfall and keep him from getting thrown under the bus for having integrity.
This is a good lesson on what the proper role of the federal government is. I was watching the Maynard / Rahall debate last night, and there was a lot of discussion on the proper role of the federal government. There are a couple of things that we do need the federal government for: raising, maintaining, and operating a military; and stepping in to local situations where there is questionable accountability and integrity within state or local government. Thank God we live in a country where we can go to the FBI if we believe that there has been a coverup or conspiracy among law enforcement at the state or local level. Otherwise, what could we do?
UPDATE: (10/28/10)
Other Media Links for this case:
WTAP video (Note: during the video the anchor says something about Sawyer pleading guilty to assault on an officer, and at the exact time she says that you see Sawyer in the background being choked and held up off his feet. Obviously a vicious assault against that officer. Of course when he took the plea offer, he would have had no idea about the video, and without a video it’s like talking to a brick wall when you tell people you were beaten up. That’s the usual way things work. You get beaten up, and they charge you with assault. Then they give you a good deal on the jail sentence if you just plead to assaulting an officer.)
Statement released by Sheriff Jeff Sandy:
“On October 26th, 2010, a federal law suit was filed concerning alleged “excessive force” violations being committed by a former employee of the Wood County Sheriff’s Office. I assure the public that the Wood County Sheriff’s Office will continue to cooperate fully. As Sheriff of Wood County, I am responsible for all events that have occurred at the Wood County Sheriff’s Office since taking office. Under my watch the Sheriff’s office has not and will not tolerate illegal and unethical behavior by any employee that has taken the oath of office. The Wood County Sheriff’s Office has some great public servants, and this alleged incident should not reflect upon the entire organization. In ending, as Sheriff, I welcome any and all investigations by federal and state investigators, because after their investigation is completed it will show an unbiased detail of the events.”
Note: probably not coincidentally, I also have another case currently pending in federal court for a police beating which occurred in Parkersburg – Tim Mazza. At least this time officials have not been blaming me or tort reform….
New Rules for West Virginia Appeals and Sex Offense Convictions
As explained by the Charleston Gazette this morning, new rules have been adopted for West Virginia appeals to the WV Supreme Court of Appeals, which will become effective in December of this year. This is a significant change for criminal defense in West Virginia. The Court will still be able to deny a criminal defendant’s appeal. However, from that point forward, the Court will have to give a reason for that denial.
Since 2004, it has been a concern of mine that persons convicted of sex crimes in West Virginia essentially will have no possibility of appeal. The problem is that the justices must campaign for election or reelection. In 2004 a justice lost his bid for reelection, mostly due to negative campaign advertising alleging that he freed a convicted sex offender (despite the fact that it was the correct decision legally – and despite the fact that there was obviously a majority consensus in that particular case since no justice can act alone). After that, what justice is going to want to reverse a conviction for any sex offense, regardless of what the correct legal decision is?
I’m not trying to protect child molesters. The fact is that “sex crimes” have turned into Salem witch hunts. The average person would be stunned at how many “sex crimes” there are. The small minority involve conduct which the average person would deem to be child molestation. The end result is that we have watered down the sex offender registry with individuals about whom people are generally not concerned. So when you actually have a child molester, it basically goes under the radar.
The average person would also be staggered at the volume of legislation and bureaucracy dealing with sex offender registration. It has taken over West Virginia’s criminal code, and is beginning to take over parole in West Virginia. Now, sex offenders will almost always qualify for “extended supervision” by WV parole officers. So if you are convicted of a sex offense, at the behest of the prosecutor, even after you serve your time you can be supervised (basically be on probation) for decades – in addition to already being required to register as a sex offender for life (the rules and intricacies of which would take about a week to explain). You can be forced to take polygraphs and wear an ankle bracelet.
We should be provided an accounting of how much taxpayer money is spent on the sex offender system. I bet it would be staggering. I would also like to know how many children it has saved from harm. Probably very few. Its like making schools “gun free” zones. It does nothing to accomplish its alleged purpose, and actually ends up doing more harm than good. Teachers or adult students cannot be armed to defend themselves and others. Likewise, parents will have no idea a real sex offender is in their neighborhood – because there are so damn many “sex offenders” that the truly dangerous ones get lost in the crowd.
Good people, who pose no threat to the public, can and have gotten caught up in this witch hunt. Politicians, nor judges, are willing to take a step back. This is a mob mentality. The “sex offender” brand rules – just like a witch. If you step into the way of one of these prosecutions, you are in support of child molesters – you are a witch, and you lose your seat, or lose your bench.
Of course, we don’t need career politicians anyways. Maybe judges, but not politicians. At least now there is a right to be told why a criminal appeal is being denied. Next, we need reform. Just like taxes should be cut, laws should be cut. Let’s stick to the basics. When we make everything a crime, we give corrupt or power hungry prosecutors the power to charge anyone for anything at anytime. Never a good idea. Some are just bad apples. The scary thing is, that bad prosecutors have a common trait: their will to win and avoid embarrassment is greater than their respect for justice. They will convict an innocent person to save face, or even to achieve personal retribution or revenge. And the ignorant electorate has no idea. They hear a radio ad touting how “tough on crime” the prosecutor is, and they vote for him. Elections are not won by promising to ease up on criminal prosecutions, or by promising leniency or mercy. Again, it’s a mob mentality. The WV Supreme Court should be completely insulated from the mob. Hopefully that will be a future reform.
A WV Criminal Defense Attorney’s advice on how not to handle a traffic stop
Sometimes I give out free advice, such as my lecture on keeping one’s mouth shut. Here is another. At some point in your life you are going to be pulled over by a cop who treats you like crap. He will either be really young, or will be older and act like a Marine drill sergeant. He will talk down to you. He will talk really loudly. He may ask you personal questions. You may feel provoked to run your mouth, or to insert a snide comment.
Although he may deserve it, do not say what you want to say. Do not ask for his badge number (you can find that out after the fact if necessary – his identity will almost never be a mystery). Do not ask for a supervisor. Just say, “yes sir” and be polite and cooperative – even if he is not. And then drive off as soon as he lets you.
Chances are, if he is being a jerk to you, he is capable of arresting you illegally. They can arrest you for obstruction and/or resisting arrest merely by claiming that you refused to obey his lawful orders. Then it is up to you after-the-fact to try and fight your way out of it. Worse yet, maybe he says you took a swing at him. Then you get charged with assault or battery on an officer. It’s your word versus his, and his dash cam was conveniently inoperable. At the very best you end up having to pay a criminal defense attorney to get you out of the mess, and a year later, get it expunged. At worse, you end up at trial, and potentially get convicted. Then maybe you appeal, etc. It all could have been avoided.
Of course, if you have already done this and now have to pay huge sums of money to a West Virginia criminal defense attorney, it might as well be me (1-888-54-JBLAW – available statewide [shameless plug]).
Second Amended Complaint Filed in United Bank Case – 33 Plaintiffs
The Second Amended Complaint has now been filed in the United Bank / Walnut Springs case, on behalf of 33 plaintiffs. The Complaint is 70 pages long and details as sophisticated scheme of bank and appraisal fraud, which now has been exposed in very specific detail.
Change of Venue in criminal cases – good luck
There was an article by the Associated Press published in the Charleston Gazette yesterday titled, “Venue change sought in state trooper injury case,” declaring that a change of venue is being sought for a man accused of hitting a West Virginia state trooper with his vehicle. The defendant is also asking for the county prosecutor to be disqualified from the case. Good luck. The world of criminal defense is comprised of making motions, then losing them, and then trying the case and convincing at least one out of twelve jurors to hang the case. Many people do not realize that it takes a unanimous twelve jurors to find a defendant not guilty.
In criminal defense, you always ask the judge for things, and you never get it. You never do. All you can do is make a record for appeal in case you lose the jury. These motions for change of venue are always losers. I have never received one. I have made this motion in a small town murder trial. I have tried this motion when representing the alleged infamous Hinton arsonist – which garnered even national media. I can’t think of a more fitting case for a change of venue than that situation, where members of the community were demanding blood. I can’t think of any possible situation where a fair jury would be more improbable. But I didn’t even get it in that case. I can’t even think of a case where they would grant one of these – unless of course you had a police officer, prosecutor or judge on trial. That might get one.
Possibly the largest and most complex lawsuit against a West Virginia bank – ever.
One of the primary reasons I have posted so sparsely lately is due to my responsibilities on what is possibly the largest lawsuit against a West Virginia bank ever. We have filed suit against the State’s largest bank – United Bank. There are now several dozen plaintiffs who have joined the suit. I agreed to hold off posting any details on the matter due to one major newspaper’s efforts at publishing an expose’ on the case.
After following the case for over a month, the reporter submitted a large article, which was to be published on the front page. In true West Virginia fashion, United Bank was apparently able to pull the plug on the story, an order which apparently came from the corporate owner of the newspaper. I have since learned that United Bank is the financial institution for that corporation. Did they threaten to call in a loan? Who knows. It’s a great wake-up call when you learn these type of things – that the news you read in a newspaper is not necessarily all the news that is fit to print, but rather all the news fit to print which also fits the political agenda of the corporate owners.
Anyways, here is the latest Amended Complaint, which shows that sometimes truth is stranger than fiction. A new Amended Complaint is set to be filed within the next two weeks containing the numerous additional plaintiffs, which I will post after it is filed.
Tyrannical prosecutors protecting tyrannical cops
When you cross a police officer, in many West Virginia counties, you also cross one or more “badge bunny” prosecutors. I have found that the difference between a good prosector and a bad one is their backbone and their integrity. Confident, knowledgeable, experienced and honest prosecutors are independent. They do what is right. They know what is right – and what is wrong. Others lack confidence, as well as the backbone to be independent from law enforcement.
As you venture between various counties in West Virginia, you will encounter prosecutors of both types. I have encountered the badge bunny prosecutor derangement syndrome in one particular West Virginia county several times now. In these badge bunny jurisdictions, even the magistrates are not immune from infection. In fact, some are former police officers themselves. Unfortunately, almost none are former lawyers. Hell, who needs legal training when deciding bothersome legal issues, such as one’s freedom? Magistrates are almost always infected where there is an outbreak among prosecutors. If a prosecutor or a cop says the sky is purple, then the sky is purple. Defendants and defense attorneys are scum – even if they are not scum. They are worthless bastards.
If you want to experience injustice, piss off a cop in one of these counties. For instance, you could have an affair with his wife. He may be of the sort to arrest you illegally and beat you down when no one is looking, and while you are handcuffed. A badge bunny prosecutor would proceed to prosecute you. You could show him evidence that you were illegally arrested, and that you were illegally beaten. The evidence could be indisputable. But your barking up the wrong tree. Unlike the good prosecutors, justice is not his concern, getting convictions is. Protecting “his” or “her” law enforcement officers is priority numero uno.
So you then could file some civil lawsuits. Then you have really made it personal to the prosecutor. Justice gets thrown to the wayside altogether, and you now have crosshairs on your back. Your only way out is through a trial.
Now compare this to the often-seen scenario when a police officer violates the law. He gets a sweetheart deal and fades from the spotlight conviction-free. If it doesn’t piss you off now that this injustice and tyranny exists in West Virginia, then just wait until it happens to you. Good people get wrongfully arrested in West Virginia. Then you will need a lawyer who has the guts to stand up to these scoundrels and fight them on their home field. Choose carefully.
West Virginia State Police lawsuit in the news
There was an article this morning the Charleston Gazette on the lawsuit against the West Virginia State Police on behalf of Travis Barker, entitled, “FBI investigating trooper accused in beating“.
As usual, there were some comments by the WVSP included as their response to the reporter’s inquiries. However, I was surprised to see that for once there were no potshots taken at me or any other lawyer. They did not call for tort reform this time. I wonder why this is? Could it be that this time there is an independent agency conducting an investigation (the FBI)? After all, they would look pretty bad if they discounted the lawsuit’s allegations and the FBI ends up finding merit in them.
To be fair, the main incident I am referring to is the comments from the Mayor and Police Chief in Parkersburg from the Mazza case, which of course does not involve the state police. And usually the WVSP are more professional than that. But, it was only a week ago that they publicly decried attorney Mike Clifford for releasing information to the media in the Snavely case, all-the-while ignoring the fact that the WVSP had apparently been caught in a cover-up.
I still don’t see how it helps the WVSP to engage in secrecy and suppression of trooper misconduct. You would think that public confidence would be instilled through the purging of troopers who can’t follow the rules. Maybe this is something that we can change if we yell loudly enough. After all, we are citizens and taxpayers, and the state police is our state agency. It represents us, and at least theoretically, is funded by us. Let’s resolve to engage not in tort reform, but reform of the WVSP. We need public disclosure and accountability.
Again, I will say, that I support the military; I support law and order; I support law enforcement. I understand that 95% of law enforcement out there are good people who place public trust and integrity foremost in their actions as officers, and who would willingly sacrifice themselves to save another. I am okay with “cowboyism” where necessary, i.e., in Compton, CA, or some like place. I understand that it is necessary in places which are akin to war zones. But for the most part, in West Virginia, which is the primary area I am concerned about, and the only area in which I have any power to seek justice, I don’t want it to happen – especially against someone who did not commit a crime. And if it does happen, the WVSP knows, and counties and municipalities know, that myself, and other lawyers, who also take an oath to uphold the U.S. and West Virginia Constitutions, will be watching.
- John H. Bryan.
Prosecuted in retaliation for videotaping police misconduct
ABC News ran a story on the growing number of prosecutions for private citizens videotaping police misconduct. The main story highlighted in the article was a guy who had a helmet mounted video camera, which taped a plain-clothes police officer swerving in front of the motorcyclist, slamming on his brakes, and jumping out with his gun in hand.
Was the officer disciplined for this act of cowboyism? I don’t think so. Instead the motorcyclist is being prosecuted for videotaping the officer without his consent. The state police in Maryland actually busted into the guy’s house, searched it, and confiscated his computer and hard drive, and then indicted him for a felony violation of Maryland’s wiretapping laws.
Okay, arrest the guy for reckless driving. I don’t have any problem with that. But give me a break. This is a bunch of garbage. Our only means of protecting ourselves from cowboy cops is the video camera. Almost every police prosecution that you see was forced due to the cop’s actions being caught on tape. The cops know this, and they try their best to keep citizens from filming them. The newspapers are full of people being arrested for “obstruction” or whatever, for filming cops.
The motorcyclist had a camera on his helmet. He didn’t know that this cowboy was going to jump out at him waving his gun. I am assuming cops in Maryland have dash mounted video cameras (although I am sure they are not on when it suits them not to be on). Does that mean that every cop in Maryland with a dash cam is guilty of felony violations of Maryland wiretapping laws? Don’t hold your breath for those prosecutions.
Obviously there is a double standard out there. And people are getting tired of it. I had a client who videotaped police shooting tear gas through his windows and them busting in with gas masks, AR-15,s and taser guns, then tasing him, and probably ended with them dragging him out of the picture. What happened to the video? It was confiscated by the police and never returned. When I was finally able to see it, it conveniently “ended” before the gas grenades were shot into the house.
Gestapo tactics. The ironic thing is, you see this sort of stuff from cops in suburbia, or other areas where there is very little real crime. Just ask a real cop who has worked in the trenches – NYPD, LAPD, Charlotte PD, Atlanta PD, who deal with all sorts of crap and scumbags – they rarely engage in cowboyism, they have enough to worry about.
WVSP feeling the heat, and deservedly so.
The latest of Charleston Gazette reporter Gary Harki’s article critical of the WVSP is, to me anyways, an absolute bombshell – though not surprising in the least. Usually in the media you find brown-nosed reporting with regards to law enforcement, usually which talks about all the criminals who were arrested and/or charged. Harki has had the gusto to take on the West Virginia State Police in a big way.
The article deals with former-Trooper-now-Hinton-Police-Chief-Snavely, who I have discussed before. I wasn’t surprised when I found out that prosecutors were not charging Snavely with a crime. But I was surprised to see Harki’s article titled, “prosecutor not told ex-trooper falsified log“. Apparently the WVSP “investigation” into Snavely uncovered the fact that Snavely falsified his duty log for the evening when he was accused of his wrongdoing. However, they apparently chose to leave that tidbit out of the investigation report which went to the prosecutor. So Harki finds out about this from attorney Mike Clifford. Harki then goes to the prosecutor who made the call. And he is apparently pissed, and rightfully so – since it was published as being his decision not to prosecute Snavely. And of course, as usual, the WVSP is angry at the attorney – at Clifford! It was his fault – he shouldn’t have told Harki.
We have a culture of secrecy in the WVSP. Even though for the most part they are good and law abiding officers, the top brass have have made some decisions which undermine the public’s trust and confidence in their integrity. If you have a public official who has done something wrong, the public needs to know about it, and the public wants to know about it. If covered up, the public gets pissed. And the coverup is always worse than the crime. If they would just throw the bad officers under the bus where they belong, from the very beginning, the WVSP would come out smelling like a rose. It would reinforce our confidence in law enforcement.
Instead we have the awful situation where an innocent citizen can have his civil rights violated by some cowboy cop, and there’s nothing the person can do about it. What can they do? Call the police? Yeah right. Call the West Virginia State Police? Yeah right. Call the Governor? You just get a form letter in return. Call your congressman? You just get a form letter. Call the FBI? Do you have any idea how many complaints they probably get? Without something more to lend legitimacy to your complaint, there is about a 99% chance they will do nothing about it. The only thing you can do is get a civil lawyer on your side. Someone who has the guts to sue the WVSP, and to put up with the WVSP verbally accosting them in every newspaper article rather than commenting on their troopers’ misconduct.
West Virginia State Police Lawsuit
Here is a copy of a lawsuit which was filed friday against the West Virginia State Police, this time on behalf of a law enforcement officer. Of course everything is my fault as the attorney. Damn scumbug lawyers…. There was an interesting article in the Charleston Gazette this past Sunday on all the problems they are having at the WVSP. Out of one mouth they are saying that they pretty much only settle cases for “financial” reasons. Then out of the other side of their mouth they are bragging that they haven’t had to pay out anything to the plaintiffs who sued them in Logan County, even though they have spent almost one hundred grand in legal fees fighting them. If you are settling for financial reasons, then why didn’t you settle the Logan County cases before spending six figures defending them? We are reaching a crisis point in West Virginia with respect to our law enforcement. We have rampant allegations of misconduct, and the leadership actively suppresses it and stays “mum” towards the public. In the rare situation where they agree there has been misconduct, they allow the officer to resign and go elsewhere to some other unsuspecting community. We taxpayers and citizens are told nothing. They should proudly weed out the bad apples among their ranks. The fact that they don’t makes us mistrust them. Lawyers don’t want bad lawyers around. Doctors don’t want bad doctors around. Airline pilots don’t want bad airline pilots around. You only find this phenomonen of absolute non-accountability and “professional courtesy” in the realm of government employees – most notably in law enforcement. Then they blame the lawyers. If there were no lawyers with the courage to take on law enforcement, then people would really be helpless. I bet they would like to get rid of us. Tort reform? Their officers already have dozens of different kinds of immunity, which you can only get past with legitimate allegations and convincing proof. What else do they want? Maybe they should admit they have a problem, then they could take the next step of solving it.
Parkersburg Police Lawsuit
As I mentioned in the previous post, we filed a lawsuit against the city of Parkersburg, West Virginia, for the alleged sexual orientation hate crime beating of our client, Timothy Mazza. There is a good article in the Charleston Gazette – actually the Sunday Gazette Mail, as it is called on Sundays – top of the fold on the front page. It features a color picture of Mr. Mazza displaying the large black and blue side of his abdomen where his rib was fractured. The reason I say it is a good article is because the reporter, Gary Harki, conducted his own investigation into the case. He interviewed witnesses and examined evidence. Other reporters would have just regurgitated the lawsuit.
An interesting thing about the article is that the mayor and the police chief of the town are quoted several times in reference to the case:
Parkersburg Mayor Bob Newell and Police Chief Joe Martin dispute Mazza’s claims. Newell said that if what Mazza claims is true, he should have talked to police – not to a lawyer and the news media. . . .
The mayor blames the lawsuit on what he says is West Virginia’s need for tort reform.
“It is very aggravating that it is being handled this way,” Newell said. “I’ve dealt with attorneys a lot, and they are trying to get cases settled through public pressure.” . . .
Martin and Newell said they will ask their insurance carriers to allow the case to go to court, rather than settle.
Martin, who became chief after the incident, said they never received a formal complaint or even a phone call about the incident before being served with the lawsuit.
“We will let it work itself out through the legal process,” he said. “He can say whatever he wants to say. We’re not as free to speak as they would be.”
So let me get this straight. If the police trespass on your property, beat you up, fracture your rib, refuse to take you to the hospital, keep you in jail overnight, and call you gay slurs while doing so, you should go to them for help? Let me tell you something. I have people who call my office or email me everyday with similar experiences, and there is absolutely no one willing to help them. Making a formal complaint is laughable. The only complaint they take seriously is one filed in a courthouse. Why would you go to them for help while they are trying to prosecute you. They never voluntarily dropped the charges against Mazza. It took a criminal defense attorney going to the court to cross examine the officers in order to point out the civil rights violations which occurred. It was the court that dismissed the charges. The prosecutors/cops were all-the-while trying to get Mazza to agree to a plea involving 30 days in jail. It is outrageous to claim that instead of going to lawyers he should have gone to the police.
In reality, Mazza comes from a long line of law enforcement officers. His father was a police chief. He has great respect for law enforcement. After this happened, phone calls were made, and they were ignored. The police chief would not return a phone call from, or communicate with, Tim’s police chief father about what happened to Tim – nor would they even provide Tim or his father with the officers’ names. It took lawyers to take action. And American citizens have every right to go to the media, as we are guaranteed the ability to do under the First Amendment of the US Constitution (regardless of whether the Parkersburg mayor and police chief agree with that document).
Busy with high-profile civil cases…. (and a new daughter)
It’s been a while since I last posted. There is a good reason for that. The reason is that unfortunately, my primary profession is the practice of law rather than writing. I have been busier than ever before in the last month or so. For one I had a healthy baby daughter two weeks ago, and she surprisingly loves to sleep through the night, so she is so far no trouble at all (I know, knock on wood). Additionally, I have been working on a number of high profile cases, some of which you may be reading about in the media in upcoming days.
One of my cases is already in the news, and unfortunately for my ego I suppose, the only way you would know that I was involved in it would be to read the Complaint, or to read this, since the media has thusfar deprived me of any credit whatsoever. Anyways, myself and attorney Michael Clifford of Charleston (see Leavitt case), filed a lawsuit against the Parkersburg Police Department, as well as the individual officers involved, last week in federal court. This is a 1983 action for wrongful arrest, excessive force, etc.
There will be a better and more detailed article coming out on this case, after which I will post a link to it here. The facts are egregious, and involve the new classification of homophobic crimes as hate crimes. For now, here is the original story from the Parkersburg News and Sentinel, which interestingly multiplied automatically when it was picked up by the AP.
If anyone else knows someone, or has themselves been arrested,harassed or discriminated against by the Parkersburg Police Department due to their sexual orientation, please let me know, preferably as soon as possible.
As I said, this is not the only high profile case I have been working on. There is going to be another police liability case filed here in the next week or so, this time in Southern West Virginia, and there is an additional case involving white collar fraud I have been spending most of my available time on which is extremely interesting and which I will detail when the time is right. So don’t hold it against me if I cannot find time to post as often as I used to.
- John H. Bryan, West Virginia Attorney.
And you wonder why I do what I do….
You would want my job too if you grew up in Melbourne, Florida. Take a look at this photo I took in my hometown of Melbourne, Florida. I have said before: you West Virginians don’t know how good you have it as far as law enforcement goes. Since most taxpayer money goes to the school system, law enforcement is forced to live within it’s means.
That is not the case in Florida. There are more cops that you can shake a stick at. And I’m not talking about high-crime areas. They are literally all over the place. Many of them shave their heads and act like they are some elite military unit. They pull over some poor lady for speeding on a four lane highway, in a spot where the speed limit is intentionally lowered to an ungodly speed by whatever corrupt municipality the highway runs through, because it makes them money. And politicians like money. Because they get to give it out, which gives them power – and probably some sort of kickback somewhere along the line. Go down US 1 in Florida (where this photo was taken), and you will see this scene repeated over and over again. The last time I was in Florida, I saw a black Escalade with a blonde lady sitting in the driver’s seat, pulled over on the side of the road. There were 6 cop cars parked behind her with their lights on.
Anyways, this photo shows three cop cars with some poor lady pulled over. The “cruisers” are all brand new. Again, no attempt whatsoever to live within their means. There are so many cops that they have nothing better to do than to gang up on citizens accused of speeding. It takes three of them (and there may even be more than one cop to each car) to respond to this lady pulled over on the side of the road, as if she is on the FBI’s ten most wanted list. Give me a break. What a waste of money. And of course each cop is making at least 50k plus benefits, as compared to the mere pittance paid in West Virginia. Why is this so? Unions. Most government employees are unionized. The taxpayers are the one’s who get shafted when unions get their way. And in Florida, as soon as one of these cops gets some sort of a cough or chronic sneeze, the taxpayers have to pay for them for the rest of their lives. It’s this way with the firefighters too. In Florida, they are all full-time. It’s a career. It’s an enormous burden on the taxpayers. This is why property taxes are so high there. And the two groups look out for one another. That’s why you’ll see those little fire department stickers on back windows of cars. Cops will terrorize the public, but they won’t pull over their firefighter buddies for anything.
The funny thing is, this is in Brevard County, Florida – one of the most conservative, Republican counties in the country (mostly because of the retired military in the area). Do conservative values equal rampant unionization? No, of course not. But people, conservatives included, are afraid to ever even think about denying the police unions what they are asking for, because then they are labeled “soft on crime.” This is extortion. Just like the way the police unions extort you into donating money to them in exchange for the “please don’t give me a ticket, I donated money to your union stickers” that you can put on the back window of your car. More people should have the guts to say so. But then again, I don’t have to worry about them pulling me over. I am a little bit outside their jurisdiction.
If you grow up in a place like this, you grow up believing that the police are not there to help you. They are there to terrorize and harass you. All it takes is one or two times of getting pulled over and being talked down-to by some punk with an AA in criminal justice, a burr haircut, and an authoritative attitude, to make you want to make a career out of criminal defense and/or pursuing civil rights claims on behalf on wronged individuals. People should be treated with respect, not like criminals. I never was treated with respect. Maybe, for that reason, I have an unhealthy grudge. But unhealthy or not, it gets me all ‘riled up every time I hear a new story of injustice, and provides the passion I need to do a good job of representing people.
On the other hand, our law enforcement in West Virginia are generally hard-working and under-paid. I suppose that this is why I like living here.
- John H. Bryan, West Virginia Attorney.
Law enforcement is [apparently] not a profession – Part 2
In the news today – college kid in federal court on trial for hacking into Sarah Palin’s email account – facing 50 years in the federal penitentiary. Meanwhile, in West Virginia….
(can you see where this is going?)
Police officer, while on duty and using official resources, hacks into his ex-wife’s personal email account in the same exact way, downloads the emails and attempts to use them as evidence in a child custody proceeding, and then admits to doing so. Federal indictment? Facing 50 years in federal prison? Fired? Nope, none of the above.
Could a lawyer do that? No, he would get in big trouble. But it’s pretty darn hard to get in trouble if you are a county or city police officer in West Virginia, especially the Ohio County Sheriff’s Department (Wheeling, West Virginia).
Here myself and another lawyer, Thomas E. White, from Moundsville, West Virginia, have teamed up to help give justice to a former law enforcement spouse who alleges that she suffered, and continues to suffer, due to her ex-husband’s position as a police officer, and to attempt to do the county’s job (for them) of providing discipline and accountability to the Sheriff’s Department there.
Are you entitled to a dismissal in West Virginia if the cop doesn’t show up?
There is a common misconception out there that, in a misdemeanor case, or in a traffic case, that if the arresting officer or the citation issuing officer does not show up, that you are entitled to a dismissal of your case. Sometimes that can be the case, but many times it is not.
This can differ between counties in West Virginia. Usually, in a misdemeanor case, the first court date will be a “pretrial” hearing. The purpose of this hearing is for the defense attorney and the prosecutor to attempt to resolve the matter through a plea or some other resolution, or else to set the case for trial. Usually there is no need for witnesses at this hearing. However, some counties will subpoena witnesses to this hearing date regardless – including law enforcement witnesses. But the purpose is generally not to testify, but rather to be available for the prosecutor to speak to in an attempt to gain their consent, or other information, which would be helpful to resolving the case by plea agreement. Some counties do not subpoena witnesses to this hearing and do not expect them to show up. Other counties do not subpoena witnesses to this hearing, but send them a letter advising them of their right to show up – or of their preference that they show up.
Many counties used to always subpoena law enforcement officers to these hearings. Many still do. Many used to dismiss the charges if the officer who was subpoenaed failed to show up. Some still do – and usually only if the prosecutor wants to teach the officer a lesson. But in the majority of cases, a defendant will not be entitled to a dismissal on these grounds. Now the actual trial date is a different story. If you are set for trial and the officer doesn’t show up, you may get a dismissal from the magistrate, or the State may request a continuance, depending on the reason the officer did not show up. Or, the State may attempt to proceed to trial without the officer’s testimony (if there is other admissible evidence).
In short, there are less ways than you would think, to get out of a misdemeanor criminal charge on a legal loophole or technicality. Sometimes you can, but most often it is through the hard work and persuasiveness of a good West Virginia criminal defense lawyer.
- John H. Bryan, West Virginia Attorney.
New West Virginia Search and Seizure Statute
New legislation has been passed in West Virginia dealing with search and seizure. It was pushed by the ACLU, who of course were only concerned for minorities having their rights disregarded. But the fact is that everyone, across the board, has had their rights trampled when it comes to traffic searches and seizures.
It essentially provides that no longer can law enforcement merely testify after-the-fact that the vehicle owner consented to a search of his or her vehicle. This, by the way, is pretty much the foundation for 80% of criminal prosecutions. Either people are too dumb/ignorant/naive to realize that they can say “no” to the officer who is asking to search their vehicle, or the cop just “testi-lies” after-the-fact that consent was given, when in fact it was not. Who do you think the judge is going to believe, the law enforcement officer, or the guy who had marijuana/concealed weapon, etc. in his car?
Pursuant to this new statute, consent must now be recorded, either in writing through an approved form, or through an audio/video recording. It must be communicated to the suspect that he or she has the right to refuse the search. It also provides that he or she can revoke their consent at any time. Though this may be dicey, because the revocation would not be recorded unless there was a dash cam, or other recorder, recording the audio. The one exception for the recordation of consent is if there is an issue of officer safety. Basically, if the cop can articulate some justification for believing there may be some weapon that could potentially harm him or her, then the statute flies out the window.
Remember, states are generally free to provide greater protection of civil liberties than is provided for in the U.S. Constitution (i.e., the US Supreme Court), which West Virginia has done here. However, states are not free to provide less protection. Hence, West Virginia could not pass a statute (that would be constitutional) which would allow officers to search vehicles without probable cause or consent.
The statute will take effect January 11, 2011.
Here is the statute:
A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all relating to searches of motor vehicles by law- enforcement officers; establishing criteria; and requiring rules.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all to read as follows:
ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-10. Motor vehicle searches.
(a) A law-enforcement officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the law-enforcement officer:
(1) Has probable cause or another legal basis for the search;
(2) Conducts a search for weapons based on an articulation of a reasonable fear for the officer’s safety or the safety of others;
(3) Obtains the written consent of the operator of the vehicle on a form that complies with subsection (b), section eleven of this article; or
(4) Obtains the oral consent of the operator of the vehicle and ensures that the oral consent is evidenced by an audio and video recording that complies with subsection (c), section eleven of this article.
(b) This section takes effect on January 1, 2011.
§62-1A-11. Rules for certain evidence of consent to vehicle search.
(a) To facilitate the implementation of section ten of this article the Director of the Governor’s Committee on Crime, Delinquency and Corrections, in consultation with the Division of Motor Vehicles, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code to establish the requirements for:
(1) A form used to obtain the written consent of the operator of a motor vehicle under section ten of this article; and
(2) An audio and video recording used as evidence of the oral consent of the operator of a motor vehicle under section ten of this article.
(b) At a minimum, the rules adopted under subsection (a) of this section must require the form to contain:
(1) A statement that the operator of the motor vehicle fully understands that the operator may refuse to give the law- enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is freely and voluntarily giving the law-enforcement officer consent to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) A description of the motor vehicle to be searched; and
(6) The name of each law-enforcement officer conducting the stop or search.
(c) At a minimum, the rules adopted under subdivision (2), subsection (a) of this section must require the audio and video recording to reflect an affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the operator may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving the law-enforcement officer consent to search the motor vehicle; and
(3) The operator of the motor vehicle was informed that the operator may withdraw the consent at any time during the search.
(d) The Director of the Governor’s Committee on Crime, Delinquency and Corrections shall adopt the rules required by this section no later than December 31, 2010.
NOTE: The purpose of this bill is to provide procedures to protect motor vehicle operators with regard to searches of their motor vehicles by law-enforcement officers.
§§62-1A-10 and 62-1A-11 are new; therefore, strike-throughs and underscoring have been omitted.
You are entitled to a “speedy trial” in West Virginia
There seems to be a lot of confusion about the right to a speedy trial in West Virginia. Let me help clear it up. Whether you are charged with a misdemeanor or a felony, you are entitled to a speedy trial. Actually, to an extent, you have a constitutional right to a speedy trial. Generally, the constitution kicks in, with exceptions, at the one year mark. Though, by statute in West Virginia, you are supposed to get a trial within 120 days unless you waive that right.
Essentially, your trial may be postponed, even without your waiver, beyond the 120 mark for “good cause,” which most times are merely the Courts’ scheduling difficulties. This is generally known as the “one term rule,” since one “term of court” is generally 120 days. A “term of court” is generally, as it applies to felonies pending in Circuit Court, a sitting of the grand jury and the subsequent period of hearings, motions, etc., which take place prior to the next sitting of the grand jury. Generally the Circuit Courts have three “terms of court.” Other types of “good cause” could arise. Indeed, it would probably be a rare day that you get a dismissal based on speedy trial at the 120 day/ one term mark.
The “one term rule” is a creature primarily of legislative enactment. It is easily circumvented, though it is a good target for courts to shoot for in providing a speedy trial to a defendant. On the other hand, the “three term rule”/ one year rule, says that under pretty much no circumstances should a defendant, who has not waived this right, not be brought to trial within one year, or three terms of court. This rule derives its’ authority from the West Virginia Constitution – or rather the West Virginia Supreme Court’s interpretation of the speedy trial guarantees of the West Virginia Constitution.
There are a few exceptions: insanity of the defendant, some behavior on behalf of the defendant that keeps witnesses away or the trial from logistically taking place, situations where a jury has previously sat and was unable to come to a decision (“hung”), or where the Defendant filed a motion to continue which was granted by the Court. Thus, realize there may be implications to filing, or joining in a motion to continue. This is one of those pitfalls that can catch an inexperienced criminal defense lawyer.
And it is important to note that these speedy trial guarantees do not just apply in Circuit Court. They also apply in Magistrate Court in misdemeanor cases.
- John H. Bryan, West Virginia Attorney.
Enough is enough.
A tragic death occurred in Georgia. A bunch of cowboy cops were investigating an alleged $50.00 crack deal. They followed the person whom they thought was their target suspect. They were driving a black Cadillac Escalade. They were “undercover” and in “plain” clothes. They were wearing ski masks. They followed the man to an ATM where he proceeded to draw out money. They jumped out of their Escalade pointing their guns towards him. The man believed he was being robbed. He fled, slightly brushing his vehicle against one of the “officers” in the process. One of the “officers” shot him in the stomach. He drove about 1000 ft down the road and crashed. He died in the hospital as his family stood by his side. His dying words were that he thought he was being robbed. He was not a drug dealer, but a church pastor.
The cop who shot him, was not even qualified in the use of any handgun, and not technically certified as a police officer. It was also subsequently revealed that only months earlier, the same cop had shot another person who was not even accused of committing a crime. Did his superiors suspend him? No, they gave him a ski mask and a gun, and put him in a position to shoot someone over an alleged $50.00 crack deal. And the “authorities”, in their boundless integrity, tried to initially claim that the pastor was a drug suspect, though this was later retracted.
For more information take a look at the article by Rodney Balko.
At what point will we have had enough. This is not a left wing issue. This should be an issue for all political parties. People know that I am a member of the NRA. I am a gun guy. I treasure the 2nd amendment. I treasure the U.S. I treasure our history, and the ideals of our founding fathers. There is an increasing tendency for those in the NRA, or otherwise involved in the protection of our 2nd amendment rights – and freedom in general – to offer unwavering support for law enforcement and “law and order.” Well, have you had enough now? This should piss everyone off. There is nothing more harmful to our freedom than a bunch of untrained cowboy cops given a black Escalade and ski masks, and given a license to terrorize and kill people. And over someone allegedly attempting to put $50.00 worth of harmful chemicals into their bodies? Who and the hell cares. Do you care enough to spend your own personal money on such activity? Does that protect you and your family? Does that help establish “law and order”?
How much do you want to bet, that in your community, there is a group of similar cowboy cops, who identify themselves as some “drug task force,” where they get to put on ski masks, ride around in an SUV, and pretend that they are some elite force on a mission from God? The next time some political hack in your area says that he or she is going to put more cops on the street, ask yourself: do we really need more cops?
Here’s an idea: less laws, less taxes, less government workers, more freedom.
- John H. Bryan, West Virginia Attorney.
Law enforcement is [apparently] not a profession
It is often said that the definition of a profession is a group of persons who engage in the same occupation and police themselves. Physicians authorize and discipline their own. Lawyers authorize and discipline their own. The same goes for veterinarians, pharmacists, and so on. Cops do not police themselves. They do not proactively sort out the bad apples.
Case in point: former Montgomery, WV PD officer Matthew Leavitt. He successfully got his municipality sued multiple times and cost their insurance company six figure settlements. This could have been avoided years earlier if anyone in the law enforcement field would have given a damn. The Charleston Gazette published a story on his career. According to the Gazette, his resume includes the following:
November 2000-June 2001:
Leavitt is employed at South Central Regional Jail.
June 25, 2001:
Leavitt is arrested for driving under the influence.
December 2001-December 2004:
Leavitt is in the U.S. Army. While there, he is disciplined for drinking on duty.
March 2005:
Leavitt is employed as a Cedar Grove Police officer.
January 2006:
Leavitt’s certificate of completion of West Virginia State Police Basic Training is signed.
April 2006:
Leavitt is charged with battery by Charleston police for a bar fight.
June 2006:
Leavitt leaves the Cedar Grove department and is hired by the Madison Police Department.
July 13, 2006:
Leavitt goes to Elsie Keffer’s house in Madison at 7:45 a.m. and harasses her, her boyfriend and her daughter, according to Madison Police records subpoenaed in the Reynolds’ civil suit.
August 2006:
Leavitt resigns the Madison Police Department.
October 2006:
Leavitt is hired by the Smithers Police Department.
Nov. 6, 2006:
Leavitt is hired by the Mount Hope Police Department.
Nov. 24, 2006:
Leavitt leaves the Mount Hope department.
Nov. 29, 2006:
Leavitt is hired by the Gauley Bridge Police Department.
In his employee file, provided to the Gazette by Reynolds’ attorney Mike Clifford, there is a paper where Gauley Bridge Chief L.S. Whipkey and Mayor Damon Runyon kept notes from interviews with Leavitt’s references.
Madison Chief C. Burgess said, “he would love to have him back” and that he “gets along well with other people.” Smithers and Cedar Grove police chiefs also recommended Leavitt to Whipkey.
December 2006:
Hutchinson is hired by Smithers.
January 2007:
Leavitt is terminated by Gauley Bridge for sleeping on duty.
January 2007:
Leavitt is hired by Montgomery.
September 2007:
Hutchinson and Leavitt allegedly assault Roderick and Lakisha White after responding to an incident at their home, according to a lawsuit filed in Kanawha County Circuit Court.
“[Leavitt] threatened to ‘blow my fat black ass away,’” Lakisha White told the Gazette. “He said, ‘Bitch, I own you. I own the streets of Montgomery.’”
December 2007:
Hutchinson receives certificate of completion of West Virginia State Police Basic Training.
February 2008:
Leavitt leaves the Smithers Police Department. (During Leavitt’s tenure at Smithers, he worked for other departments concurrently, a common practice among small-town officers.)
March 2008:
Leavitt, recently hired by Cedar Grove, along with another Cedar Grove officer and a Kanawha County sheriff’s deputy, allegedly sexually assaults Patricia O’Scha on a hill across from Riverside High School, according to a suit filed by O’Scha in Kanawha County Circuit Court.
The three allegedly told her that if she would have sex with them, she wouldn’t have to go to jail. O’Scha said that while she was alone with Leavitt at the Montgomery police station, he implied she should have sex with him or give him oral sex, according to the complaint. Just when he stopped working for Cedar Grove is unclear.
March 2008:
Hutchinson resigns from Smithers and is hired in Montgomery.
August 2008:
Leavitt allegedly handcuffs Gregory Lee Payne and drives him to a wide spot in the road just before Interstate 64 near Cabin Creek. There he chokes and hits Payne, then leaves him by the side of the road, according to a lawsuit filed in Kanawha County Circuit Court.
Aug. 23, 2008:
Leavitt allegedly assaults 17-year-old Sherkiri Terrell. She alleges that after he pushed her head against a wall, he slammed her cell phone to the ground. As the two struggled, she says she put the phone down her pants. She alleges that when it began to ring, he put his hands down her pants to get the phone, according to Terrell.
Aug. 27, 2008:
Joey Carr knocks over a soda machine in Montgomery. Leavitt stops him, takes him to the police station and assaults him. When Leavitt pepper sprays him at close range, Carr says he tries to run away.
“He grabs me and throws me down, kicks me in the stomach and Maces me again,” Carr told the Gazette previously. “When he handcuffs me, he throws me against the car and told me to ‘Quit screaming like a little bitch.’”
Sept. 26, 2008:
Leavitt and Hutchinson assault Twan and Lauren Reynolds. Leavitt hits Twan over the head with a blackjack, kicks him in the back and sprays his eyes with pepper spray at close range.
He also uses a racial epithet and licks Lauren Reynolds on the neck during an interrogation, saying, “Little whore, you like it like that.” Their 4-year-old daughter witnesses much of the assault.
Sept. 27, 2008:
Montgomery officials suspend Leavitt and fire Hutchinson for the incident.
Sept. 29, 2008:
Montgomery police start an internal investigation into the Reynolds beating.
Oct. 1, 2008:
Hutchinson is employed as a Glasgow police officer.
Oct. 21, 2008:
Hutchinson’s last day as a Glasgow police officer.
April 2009:
Leavitt is terminated by Montgomery Police.
April 2009:
Hutchinson is employed by Chesapeake Police, where he is still an officer.
June 10, 2009:
Leavitt is indicted on federal civil rights violations for beating Twan Reynolds and falsely charging his wife, Lauren Reynolds, with a DUI.
July 6, 2009:
Leavitt pleads guilty to two misdemeanor civil rights violations in federal court. During the sentencing Oct. 22, Chief U.S. District Judge Joseph R. Goodwin said Leavitt remains defiant.
“He has stated that he only pleaded guilty because he feared that due to, quote, ‘idiots,’ unquote, on the jury, it was the, quote, ‘smarter thing to plead guilty,’ unquote,” Goodwin said. “He stated he wants the Court to know, quote, ‘I stand by my actions that day.’”
This generally is not the case with the State Police. But when the State Police fires somebody, or they resign due to misconduct, they usually go to some small municipality just as Leavitt did. Another case-in-point, Derrick Snavely. According to the Charleston Gazette, this is what was alleged:
In an interview with The Charleston Gazette in December 2008, the woman said Snavely told her she was driving in the middle of the road, then performed a field sobriety test on her. She asked him if she was going to get a DUI, and he told her he didn’t think she was that drunk.
Eventually they drove in separate cars to another spot, where Snavely, who is in his early 20s, began kissing and fondling her, she said. Then they drove in separate cars to her house, she said. “I went in survival mode,” she said at the time. “I couldn’t call anybody because he was the police.”
Snavely admitted to the sexual encounter, but claimed that there was no resistance. Though he was fired, he was not prosecuted. Prosecutors concluded that it was not a criminal offense for a trooper to have sex while on duty. They really stuck up for him.
Kanawha County prosecutors declined to bring charges against Snavely after reviewing the evidence, said Dan Holstein, assistant prosecutor for Kanawha County. The case was independently reviewed by two assistant prosecutors and they agreed that there was no prosecutable offense, he said. . . .
“To have a sex offense under those circumstances, you have to prove beyond a reasonable doubt that there was forcible compulsion. … And in this case there was no resistance at all, not even in word,” Holstein said. . . .
Prosecutors reviewed all the evidence, including a videotape inside the woman’s home that shows the officer there that night.
“If the Legislature wants to make it a crime to have sex with someone on duty, they can do that,” Holstein said. “But so far they haven’t. Just because he was a police officer and on duty doesn’t mean it was a crime.”
This should really piss you off. He pulled some girl over. Undisputed. She admits she was drunk. He ends up having sex with her at an apartment. Undisputed. (Undisputed only because it was caught on videotape). She is not charged with DUI. Undisputed. Prosecutors go out of their way to conclude that no crime was committed. Needless to say, her lawyer, Mike Clifford, disagrees:
“Any time a state trooper is in a squad car in uniform with a gun and a badge, the standing and negotiation powers for sex or anything else is severely restricted,” Clifford said.
Clifford, who has filed multiple lawsuits accusing police officers of wrongdoing in the past year, said he tells his clients that it’s best to follow police orders when they are stopped.
“Go along with whatever they do. We have the option in open court to figure it out,” he said.
So where does Snavely go after he resigns? Hinton, WV PD. A small municipality with a history of law enforcement issues. He is now Chief. I actually have met him, and he seemed like a nice guy when I met him. But the point is, there is a complete lack of sanity in the hiring of police officers by municipalities. These people are then given a gun and authority to point it at you. This helps put West Virginia last on the list of where people want to come visit – or start a business. Less officers is better than enough officers unqualified.
Officers who resign or are fired from counties also end up in these shady municipalities, such as Robert Alkire, Jr., about whom I have previously posted, who allegedly shot his gun off during an on-duty altercation with his girlfriend, and is now working at the Ronceverte, WV police department. The Charleston Gazette has also published articles on him.
This is what you get when you unionize government. This is what you get with big government: a complete lack of accountability, a complete lack of sanity. Just wait until it affects you, and then you will care. It happens.
- John H. Bryan, West Virginia Attorney.
John H. Bryan, Attorney at Law
Have law license, will travel.
John H. Bryan is a prominent West Virginia criminal defense lawyer who not only defends people in criminal courtrooms statewide, but also is one of the top civil rights attorneys in West Virginia, frequently suing police departments and the State for misconduct. He and his law firm also have a successful personal injury litigation practice and frequently handle high profile cases.
Email John: jhb@johnbryanlaw.com
“We may affirm absolutely that nothing great in the world has been accomplished without passion.” – Hegel.
WANTED TO BUY: antique firearms and related items, as well as Native American trade items and artifacts.
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