In the Charleston Gazette today, there is an article detailing excessive force complaints by West Liberty University students against the Charleston Police Department. First sentence of the article: the mayor is speaking out to the media, defending the officers and essentially denouncing the complaints as lies. The article contains numerous statements from the police, as well as the mayor, and has statements from numerous university officials and students who witnessed the incident.
The students and university officials have every right to voice their outrage about what happened. However, the mayor was wrong to make statements to the media, only a couple of days after the incident occurred, denouncing the complaints as lies. There obviously has been no legitimate internal investigation of the complaints, and certainly no independent or unbiased investigation. In my experience, when a mayor comes out and speaks to the media, they are worried.
CHARLESTON – Four Fayette County deputies are accused of beating up a disabled man and later dropping him off at his home without providing him any medical treatment.
Nicholas D. Hall, Robert V. Neal, James K. Sizemore and Dana C. Wysong are named as co-defendants in a five-count civil rights suit filed by Matthew Cole in U.S. District Court. In his complaint filed Dec. 13, Cole, 37 and an Ansted resident, alleges all four beat him without provocation when they responded to a domestic violence call to his cousin’s house two years ago, only to then have Wysong return him to his mother without either explaining his injuries or seeking treatment for them.
. . .
I know that many people have been following this case, so here is an update. On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case. The new jury trial on damages is scheduled for next week. I was given until yesterday to respond. Unless the Fourth Circuit says otherwise we are having a trial on Tuesday. Here is our response:
(Yes I did this in two days, so please excuse any mistakes)
Unfortunately we lost at jury trial. But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor. There will be a new trial to determine damages. Yes!
Update: Link to newspaper article.
2nd Update: Gazette article by Zac Taylor. Some excerpts:
In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.
“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”
The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.
. . .
“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”
. . .
Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.
Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.. . .
During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.
“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.
TV News article.
Today we received the Judge’s memorandum opinion and order denying the defendant’s motion for summary judgment, finding that the defendant police officer is not entitled to qualified immunity on our primary claim. This means that we are going to have a jury trial, which is scheduled for later this month.
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:
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.
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.
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.
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?
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….
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.
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.
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.
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).
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.
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.
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.
Leavitt is employed as a Cedar Grove Police officer.
Leavitt’s certificate of completion of West Virginia State Police Basic Training is signed.
Leavitt is charged with battery by Charleston police for a bar fight.
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.
Leavitt resigns the Madison Police Department.
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.
Hutchinson is hired by Smithers.
Leavitt is terminated by Gauley Bridge for sleeping on duty.
Leavitt is hired by Montgomery.
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.’”
Hutchinson receives certificate of completion of West Virginia State Police Basic Training.
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.)
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.
Hutchinson resigns from Smithers and is hired in Montgomery.
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.
Leavitt is terminated by Montgomery Police.
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.
I get calls every day from people in West Virginia, or from elsewhere who were arrested, etc., in West Virginia, who want to sue the police. To be honest with you, I only seriously consider very, very few of these types of cases. Sometimes, from what I hear in the first few minutes, or in a description of what allegedly happened, I don’t even want to get involved with it.
Since I know that people researching the law with regards to filing lawsuits against the police and police misconduct in West Virginia end up on the site, let me go ahead and tell you what I personally look for in a police liability case.
Number one, credibility. If it’s going to be your word against the officer’s. There must be some indication of credibility on your part. That means preferably no criminal history. College education is a plus. A good career is a plus. A good family is a plus. Being married is a plus. Being otherwise successful in life seriously bolsters your credibility.
Number two, corroborating evidence. It is almost necessary to provide some corroborating evidence that the police engaged in misconduct. It could be a witness (again, see comments on credibility), or it could be a videotape, an audio recording. It could be found in official documentation, such as a police report or internal investigation, or even in a cruiser dashboard camera, or a police report. It could be corroborated by law enforcement itself, such as through disciplinary action taken against the officer, or through a criminal prosecution of the officer.
Number three, damages. If you have no damages, in most instances, there’s nothing to compensate you for. This goes hand in hand with credibility. Generally, if you are a credible, upstanding citizen, it will cause you damage to be wrongly arrested. You might get fired. You might lose business. These are damages. Maybe you were beaten and ended up in the hospital. Medical bills, pain and suffering, etc., are damages.
Number four, your story of what happened to you has to piss me off. If after hearing what happened to you really pisses me off, then I get excited about it. Those are the types of cases I like to take. One’s that I feel comfortable with taking to a jury and shoving down the state’s throat. Where I feel truth and justice is on my side.
Number five, and lastly, I have to have a good feeling about the client. I don’t want to take a risk for someone – and these cases are risky – if I don’t like them. Because if I don’t like them, chances are a jury may not like them.
Unfortunately, it’s not possible for me, or for other attorneys, to take every justified case. Other considerations are always at play. It is one of the faults of our justice system.
But it doesn’t hurt to ask. If you call me with your story, I will at least be able to tell you pretty quickly whether I would be interested in taking the case or not.
- John H. Bryan, West Virginia Attorney.
In a few weeks, I will be partially presenting a police liability seminar CLE in Charleston, WV. This will be the second year in a row I have done this. Last year was successful. There were a lot of highly-respected attorneys there, many of whom were defense lawyers representing the state, counties, and cities, and many were plaintiffs attorneys. A lot of good information was exchanged. For better or worse.
Here is a link to the brochure, with all of the relevant info.
Perhaps, the most advantageous lesson to be learned is immunity law and procedure as it applies to other types of governmental liability cases (for those who have not yet taken on one of these cases). Because it is mostly applicable in any type of case where you are suing the state, county, or city. And other types of cases are generally more profitable to a plaintiff than one in which you have a police officer or department as a defendant.
Probably the most vulnerable among us are those who are incarcerated. I’m all for law and order, as well as punishment, but very few of those incarcerated actually killed somebody or are otherwise going to spend the rest of their lives there. Many of them haven’t even been convicted of anything yet, they just don’t have the ability to bond out prior to their trial. Many times these people are physically abused by correctional officers who have the ability to run roughshod over the population. And people don’t care because they view them as criminals.
For instance, there was a North Carolina case that just popped up in the news, which captured the beating of an inmate on video – leading to a civil lawsuit. But if it were not videotaped, nobody would believe it.
In West Virginia, we have some of the worst jails in the country. I’m not talking about the prisons, but the jails – places where people go who are awaiting trial, or who were sentenced to a short sentence of incarceration. It seems like every other day there is a correctional officer being fired for sexually assaulting inmates, or dealing drugs with inmates. And these are just the one’s who get caught. I’ve heard countless stories from different clients of the abuse perpetrated by guards. And most of them are almost identical, despite the fact that these people had never met each other.
Don’t be surprised if the Department of Justice announces an investigation….
- John H. Bryan, West Virginia Attorney.
A venue issue had popped up in the Flanary case when counsel for Pocahontas County filed a motion to dismiss based on improper venue. Basically, there is a law stating that if you sue a county in West Virginia, you have to sue that county in it’s own courthouse, or in any either county in which the cause of action arose (which would be rare to be anywhere else). But there is also a law stating that if you sue the State of West Virginia, you must sue in Kanawha County (location of the state capitol). So what happens when both a county and the State are named defendants in a lawsuit?
Well we faced that very issue, and after the issue was briefed and argued, the Circuit Court Judge ended up ruling in my client’s favor, finding that venue was proper where the lawsuit was originally filed – in Kanawha County. As a courtesy to defense counsel who represent governmental entities in West Virginia, since they are so generous among themselves with sharing circuit court orders and submitting them against plaintiff’s counsel, I will post a copy of the Judge’s order for submission or review by anyone who may find it helpful.
- John H. Bryan, West Virginia Attorney.
Here is a copy of a police liability/ governmental liability lawsuit that I filed last week against various agencies of the State of West Virginia, Pocahontas County, and several private corporations and individuals – including Snowshoe Mountain – on behalf of Brent Carter Flanary. Since the case is obviously pending, I can’t comment on the facts other than to summarize what is in the pleadings, which are lengthy. This case is about a man who had everything and ended up with nothing.
The Complaint alleges that Mr. Flanary, who had a condo at Snowshoe and was going through a bitter divorce, was forced “off the mountain” by Snowshoe officials, with the help of local and state law enforcement – all of whom were communicating with Mr. Flanary’s ex-spouse. During this process, Mr. Flanary suffered imprisonment, both in a jail and in a mental hospital, for over a month’s time, was beaten, sexually assaulted, attacked with gas grenades, tasers, German Shepherds, and fists – all over allegedly being publicly intoxicated, for which incarceration isn’t even a potential punishment (1st offense). None of the aforesaid “use of force” incidents were in any way memorialized in a police report or “use of force” affidavit. Instead, they were covered-up until after the expiration of the one year statute of limitations for false arrest and false imprisonment. Additionally, much of the conduct underlying these allegations were videotaped. One of the video tapes emerged nearly two years later, conveniently missing the relevant footage at the end of the digital footage (and also after the lapsing of the aforesaid statute of limitations). Another video tape has yet to emerge. But this didn’t stop the prosecutor – and now disbarred assistant prosecutor – from attempting to bring Mr. Flanary to trial on the criminal charges (without production – or even admission of the existence of – the video tapes).
You may not want to take all the time necessary to read the entire document. However, this Complaint may be useful to other West Virginia attorneys who are facing – or considering – police liability or governmental liability cases. The area of law is extremely complex and tricky, and there’s not a whole lot out there to review prior to filing your own case. A considerable amount of research went in to the drafting of this Complaint, including the review of just about every police liability case filed in West Virginia in the last five years. – John H. Bryan, West Virginia Attorney
UPDATE: State Journal story on the Flanary case posted 1/8/09.
Pocahontas Times story also posted 1/8/09.
There was a Charleston Gazette article last week detailing a ruling by a Kanawha County Circuit Court judge dismissing Massey Energy’s FOIA (Freedom of Information Act) lawsuit seeking emails from Supreme Court Justice Larry Starcher.
The grounds for dismissal were failure to comply with the statutory notice provisions. When you are suing the state, even with respect to a FOIA case, you have to comply with the notice provisions of W. Va. Code Section 55-17-1, et seq. – which means that you have to give written notice via certified mail, return receipt requested, to both the “chief officer” of the state agency and the Attorney General, of the “alleged claim and the relief desired.” It’s pretty basic really, though I ran afoul once in sending notice to the “general counsel” rather than the “chief officer.” But regardless, there’s not much case law on the topic for either side in these situations. But, if you don’t send the notice at all – to anyone – then the suit absolutely cannot proceed.
I was in court this morning on a governmental liability case such as this, and the attorney representing the other side is perhaps the most respected and knowledgeable attorney in West Virginia regarding these types of governmental liability issues. He told me the behind-the-scenes story behind the adoption of this pre-suit notice statute, which I won’t recite here, but let’s just say that, like everything else in West Virginia, every statute has it’s ulterior motives. The legislature should be required to put this stuff on the legislative record so that you can bring it up in your arguments. Circuit Court’s usually don’t take judicial notice of attorney gossip.
One point of confusion is possibly this: if you sue over a FOIA violation against a political subdivision (i.e., county or city), W. Va. Code Chapter 55-17 doesn’t apply – there’s no notice required prior to suit. The statute only applies to the state and all of it’s agencies and appendages. And, the Supreme Court is an appendage of the state – and needless to say is usually not a good party to have on the other side of your lawsuit. But then again, a very prominent attorney in the state asked me, after I brought up this issue, “is there anything wrong with writing someone a letter to tell them your gonna sue them?” I guess there’s not – especially if you want to put their insurance carrier on notice of the potential claim.
Anyways, as a “little guy” who is almost always the “David” fighting the “Goliath” law firms, it makes me smile a little bit to see a big firm, representing possibly the most lucrative client in the state, make a mistake such as this. They probably had gobs of lawyers working on this case, and had all the resources in the world at their disposal – and they still messed up. But all clients – even huge corporate clients – in the end, must count on individuals, both with their attributes and their mistakes.
A Florida trial lawyer who was a family friend once said to my father (talking about taking on big firms): “though they may have a hundred lawyers working on the case, can’t but one of them speak at a time.”
- John H. Bryan, West Virginia Attorney
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