Excessive Force Police Shooting Settled Before Trial

Literally, on the courthouse steps.  Settled for $200,000.00, paid by the Morgan County Commission.  Ulysses Everett v. Seth Place and the Morgan County Commission.  U.S. District Court for the Northern District of West Virginia.  Federal 1983 lawsuit for excessive force and unreasonable search and seizure.  It’s a tough call to choose to settle a case when you are prepared to try it before a jury, but in this particular case they had a damn good defense lawyer.

 

 

 

 

 

 

 

 

 

Article in The West Virginia Record.

Article in The Journal.

Excessive Force Lawsuit Filed Against Fayette County, WV Deputies

Media Reports:

The West Virginia Record.

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.

. . .

The Fayette Tribune.

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Sawyer v. Asbury defendants asking the 4th Circuit to stop the trial

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)

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Judgment as a matter of law was just granted in Sawyer 1983 case

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.

The Order:

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Sawyer case going to trial on 1983 excessive force claim

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.

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Another win in a West Virginia civil jury trial

We just finished a civil jury trial in southern West Virginia and came through with yet another unanimous verdict in our favor.  One interesting side note: there was one witness who was unavailable to appear due to health reasons, so his deposition was read to the jury.  You would think this would bore them to death.  But in reality it was halarious because the judge’s court reporter was playing the witness’ part and we had to act it out.  Given that the guy repeatedly accosted me verbally in the deposition, it had the jury laughing much of the time.

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.

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Two of the exhibits:

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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.

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.

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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.

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.

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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

Case closed in trooper rape accusation

Prosecutor not told ex-trooper falsified log

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 article

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.)

News and Sentinel

Daily Mail

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….

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.

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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.

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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.

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.

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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).

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.

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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.

So you want to sue the police….

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.

WV State Police Settle Case

A case, about which I have twice previously posted about, has now apparently settled, with the WV State Police forking out at least $200,000.  This was a good case from a plaintiffs perspective.  The plaintiff himself is a prominent lawyer.  He was beaten to a pulp, as the insulting photograph of him with black eyes in an orange jumpsuit will attest to.  There really isn’t any excuse for this sort of a beating.  The cops were not facing a giant man on a PCP induced rage, he is actually a rather gentle looking guy.  But most importantly, the cops were caught trying to cover their tracks.  And the cover up is almost always worse than the original wrongdoing.

But what is surprising here, is that none of these officers were charged criminally – at least not yet anyways.  And the ironic thing is that, if criminal wrongdoing could have been proven, under the State’s insurance policy, coverage could be excluded, possibly releasing the State from liability.  Of course there were some allegations against the State Police in general, as well as the Colonel, for some conduct, such as knowingly allowing surveillance cameras to remain inoperable, and probably for insufficient training and complicity in the attempted cover-up which took place.  That may have been the reasoning.  Or, it may have just been a protect-your-own type of thing.

Regardless, you can bet your rear-end that if a non-law enforcement person was involved in a fight and beat someone like that, that person would be charged with a crime immediately.  Its just another example of the gross double standard.  Of course, quoting the Gazette article, the settlement agreement stated that:

The settlement is not an admission of liability, wrongdoing or responsibility for damages, according to the defendants’ written offer. “[L]iability damages or any other wrongdoing are expressly denied [by] these defendants.”

Yeah right.  Trust me, the State Police does not cough up $200,000 because they believe they did nothing wrong.

- John H. Bryan, West Virginia Attorney.

Ashcroft v. Iqbal and Supervisory Liability in federal civil rights actions

As was discussed at Crime & Federalism, there was a recent US Supreme Court decision – Ashcroft v. Iqbal – which drastically changes a component of most civil rights actions – “supervisory liability.” Generally, when police officers/departments are sued for civil rights violations under federal law (42 USC 1983), it is generally alleged that the supervisors are liable for the actions of the subordinate officers.  It used to be that this could be proven without actually having to prove that there was, for instance, a memo issued by the supervisor to engage in a civil rights violation.  It could be proven by showing any type of ratification or acquiescence.

In in City of Canton v. Harris, the Supreme Court held that supervisory liablity may attach where “policymakers were aware of, and acquiesced in, apattern of constitutional violations.”  But in Aschcroft v. Iqbal, the Court ignored Canton and held that:

[Plaintiff] argues that, under a theoryof “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeed sof their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.

So now you have a situation where the Court says that supervisors will be accountable for their own conduct, but where they are not actually liable for their own conduct.  Yes, if they taser a 90 year old grandmother who is handcuffed in the back of a patrol car, they will be liable for that.  But if through inadequate supervision (hence the term “supervisor”) they allow their subordinates to do so without stopping them or otherwise “supervising” them, they are not accountable.

Regardless, this probably will not make much difference here in West Virginia since if you ask most defense attorneys in West Virginia, they can’t recall one case of a plaintiff ever even actually recovering on grounds of “supervisory liability” in a federal police liability action.  It’s just too much of an ancillary issue and too difficult to prove in most cases.

- John H. Bryan, West Virginia Attorney.

NC Case Illustrates Abuses of Inmates

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.

Personnel File Discovery Issue Litigated – another helpful plaintiff’s opinion

There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.

Part 1 deals with a FOIA issue that popped up in that case.  Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.

Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure.  However, Cleavinger quickly points out that:

Except…

A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:

The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.

But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?

Wrong.

U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.

Cleavinger then hammers the last nail in the coffin, pointing out that:

Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)

This case is pending in federal court.  The presiding judge issued a ruling in an eleven page opinion  - by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.

Let’s see if the defense counsel try to use these objections in state court….

 - John H. Bryan, West Virginia Attorney.

Venue Issue Decided in Flanary Case

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.

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Lawsuits filed against “Lawless” Montgomery-area police

The Charleston Gazette reported today that several lawsuits have been filed against police officers in Smithers and Montomery, West Virginia, and that several more are to be filed in the coming months.

One of the allegations is that a man and his father were physically and mentally abused by officers after they were pulled over leaving the father’s bar. Another of the allegations is that there was an old-fashioned shake-down of a cab driver.

Does anyone see a pattern here? These small-town West Virginia police departments have no oversight. It was only a few days ago that I posted about the out-of-control officer in East Bank, West Virginia. There needs to be a deterrent to this type of behavior. Then penalty for police misconduct of any sort should be extremely, extremely severe.

For now anyways, the penalty is that the State of West Virginia gets sued. Unlike many states, when the State or other political subdivisions in West Virginia get sued for police misconduct, the liability mostly falls on the state’s million-dollar insurance policy. So, in effect, a town or county – or even the state – doesn’t really have any exposure to liability (at least as long as the state can procure this insurance on their behalf). So being government employees, they have no profit incentive to improve the state of things, and they have no accountability either. Have you ever heard of an “Internal Affairs” investigation in the State of West Virginia? Of course not. The only “internal affairs” division is the attorneys who sue the State on behalf of people who’s rights, and bodies, were violated by bad cops.

– John H. Bryan, West Virginia Attorney.

Charleston Lawyer Sues WV State Police For DUI Arrest Beating

As reported in the Charleston Gazette today, Charleston lawyer, Roger Wolfe, who is a “senior labor and employment lawyer” with Jackson Kelly, was arrested on suspicion of DUI on June 17, 2007. Apparently he was taken to the South Charleston state police “barracks” (again, why do cops like to pretend that they are some type of pseudo-military), and when he smiled at a female trooper, she told him that she would wipe that smile off his face, and had a male cohort take him into an adjoining room. He was beaten so fiercely that he leaked cranial fluid out of his nose.

Then, as if to add insult to injury, the emergency room doctor allowed a trooper to come in and question him while he was in-and-out of consciousness, in order to cover their tracks. For instance, he was supposedly asked, “when you were speaking with the female trooper, do you remember trying to kiss her?” and “how did you get that knot on your head.” If all he had was a knot on his head, then why was he in the emergency room? And why did he spend a week in the hospital with “potentially life-threatening injuries?” What if he did try to kiss her? Is that worth the man’s cranial fluid on the floor? I would hope that other female law enforcement officers are embarrassed and ashamed of this…

Good luck to Mr. Wolfe. The sad thing is that had this guy not been a lawyer with a powerful firm, probably nobody would believe him. This matter better be under investigation by the state, and by the feds. These crooked cops deserve to be stripped of their badges and locked up with their prior arrestees.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Wrongful Death Suit Filed Against Raleigh County Sheriff and Deputies

From the Register-Herald this morning:

A wrongful death lawsuit filed late Monday afternoon claims members of the Raleigh County Sheriff’s Department acted negligently when they shot and killed a Cabell Heights man who was firing a high-powered weapon in the early morning hours of July 4, 2006.

Filed by Charleston attorneys Michael A. Olivio and Travis A. Griffith on behalf of Mary Webb, the widow of Robert Webb, the suit lists defendants as the Raleigh County Sheriff’s Department, the Raleigh County Commission, Sheriff Danny Moore, then-Chief Deputy Steve Tanner, Deputy Greg S. Kade and Deputy John E. Hajash.

According to Register-Herald files and the complaint, Kade and Hajash were responding to a complaint that Robert A. Webb, 44, was playing loud music and shooting an AK-47 assault rifle outside his Cabell Heights home.

According to the lawsuit, Webb was discharging his firearm in celebration of his birthday and the Fourth of July holiday, but more than 30 minutes had elapsed between the firing of the weapon and the arrival of Kade and Hajash at the Webb residence.

The suit also claims “numerous residents within the neighborhood” were also firing weapons in celebration of the holiday and that Webb never fired his gun to threaten or endanger anyone.

The complaint claims Kade and Hajash parked away from the residence, out of sight, and approached on foot “while using cover to conceal their presence.” It also claims Kade took an assault shotgun from their patrol vehicle instead of his service standard handgun in spite of the fact the call was considered a “non-emergency nuisance call.”

When the deputies arrived on the scene at approximately 1 a.m., Webb was not shooting; still Kade and Hajash remained concealed by a row of trees until they witnessed Webb turn away from them, “at which time they ran toward Robert Webb in order to close the distance between them,” according to the complaint.

“Deputies Kade and Hajash proceeded up the street toward Mr. Webb and shot Mr. Webb while he was standing in the driveway of his home,” the complaint reads. “Deputies Kade and Hajash failed to identify themselves as law enforcement officers prior to firing their fatal shots at Mr. Webb.”

Webb was hit in the head and knocked to the ground by an initial shot from a shotgun, according to the complaint. While he was on the ground, one of the deputies shot him again with a handgun.

The complaint also claims emergency medical personnel were denied immediate access to Webb by members of the Raleigh County Sheriff’s Department, who finished taking photographs before they allowed medical personnel to touch Webb.

Obviously there are two sides to every story, but if the allegations that are included in the complaint are true, then there were some real problems with the conduct of the law enforcement officers in this situation. Having formerly investigated pattern or practice police misconduct for the Department of Justice, the way these officers approached the scene jumps out at me as either gross negligence or reckless disregard for human life and proper police practices. First of all, shooting firearms into the air on the 4th of July is not an offense punishable by death. They should have approached in their cruisers with their emergency lights on. There was no allegation (apparently) that the victim was firing his weapon towards anyone else. It was obviously a 4th of July celebration. Secondly, the man was in his driveway, it was dark, and they sneaked up on him with a shotgun pointed at his face. It would have been understandable if the victim had shot at the officers. However, he did not – there apparently was no evidence that he attempted to shoot at them. It is uncontested that the victim never fired a shot. Having your head blown-off by a short-barrel shotgun is a pretty harsh way to die, and understandably, the family is looking to make the county pay.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Another Lawsuit Filed in Cattle/Bank Scam Case

From the Register-Herald:

Another lawsuit filed against bank, officials in alleged cattle fraud case

By Christian Giggenbach
Register-Herald Reporter

LEWISBURG — Another lawsuit has been filed against First National Bank of Ronceverte and two former bank officials, this time by an Illinois man who alleges disgraced cattle broker Kevin Scott O’Brien defrauded him out of $104,000.

The lawsuit, filed by Robert Dwyer, named First National Bank, former bank president Charles A. Henthorn and former board director **** as defendants.

Henthorn and **** recently pleaded guilty in federal court, Henthorn for taking $10,000 in bribes from O’Brien, and **** for setting up bribes.

O’Brien pleaded guilty to a mail fraud charge involving the sale of cattle in fraudulent Ponzi schemes. A sentencing date has not been set for any of the defendants.

Dwyer claims he gave O’Brien $104,000 in February 2006 for “80 pairs of heifers and their calves,” which should have been shipped to Dwyer’s farm in Carthage, Ill.

“Instead of arranging for the cattle to be trucked to Dwyer … O’Brien sold the cattle to ****,” the lawsuit said. “O’Brien’s sale of the Dwyer cattle to **** was simply one of the last acts of fraud and deceit in O’Brien’s continuing scheme.”

Dwyer claims the bank knew about the **** deal, but looked the other way because O’Brien owed the bank money.

“The bank, through its senior management, including Henthorn and ****, devised a scheme with O’Brien pursuant to which O’Brien would sell **** cattle,” the lawsuit said. “The money that **** paid for the cattle was to be deposited into O’Brien’s checking account in satisfaction of debts that O’Brien owed the bank.”

Dwyer is seeking punitive damages on the basis of fraud, civil conspiracy, and aiding and abetting a wrongful act, among other charges.

Dwyer is being represented by Charleston lawyer James W. Lane.

Neither **** nor Henthorn could be reached for comment.

In February, another Illinois man, Frederic W. Nessler, filed a $340,000 lawsuit against the same three defendants alleging fraud.

O’Brien, who is currently mired in a multimillion-dollar bankruptcy, wasn’t named as a defendant in either suit.

— E-mail: cgiggenbach@register-herald.com

38 Former Duke Lacrosse Players To Sue

From today’s Charleston Daily Mail:

Note: Good for them. See my former post regarding Nifong here.

38 former Duke lacrosse players plan to sue

by Newsday

More than three dozen former Duke University lacrosse players said they would file a lawsuit Thursday seeking damages in connection with the infamous rape case that was later dropped.

The 38 players’ attorneys said they would announce the claims in their federal civil action at the National Press Club in Washington.

“All of this will be discussed tomorrow,” said Bob Borg, a spokesman for the players.

The action would be the latest of at least three lawsuits that have been filed since a North Carolina attorney general dropped charges in April against three Duke lacrosse players who had been indicted on criminal charges for the March 2006 alleged rape of a woman who performed as an exotic dancer at a party off the Durham, N.C., campus.

Two other suits have been filed by the three players who were indicted and three others who weren’t indicted.

The prosecutor, Mike Nifong, was disbarred when a panel found he withheld evidence from the defense.

The three formerly indicted players, Reade Seligmann of Essex Fells, N.J.; Collin Finnerty of Garden City, N.Y., and David Evans of Bethesda, Md., have sued Nifong and the city of Durham but reached a settlement with Duke.

In December, players Breck Archer, of East Quogue, N.Y., Ryan McFadyen of Mendham, N.J., and Matthew Wilson, of Durham, N.C., filed a lawsuit against Duke, Nifong and the city of Durham, among other entities.