People over “tactics”
I have previously posted about the police’s use of “tactics” and “training” to trump the rights of innocent citizens. Basically, sometimes when you get pulled over, a cop walks up to your window with his hand on his gun; or yells at you from a distance when he could be talking to you; or orders you out of your vehicle; and pretty much treats you like a criminal. The reason for this is supposed training and tactics which are meant to protect the officer. Because everyone knows that a traffic stop is the most dangerous scenario for a police officer.
Well I say, too bad. If you can’t handle pulling people over, then don’t pull them over. Or don’t become a police officer in the first place. 98% of us don’t deserve the disrespect and insult of being treated like a criminal. Take a look at small town police departments. You rarely see such “tactical” behavior, and yet, you don’t see every other cop getting shot down on the side of the road. Then, you take these larger departments, and its like pack behavior. They start behaving with an air of inhumanity, almost like an army, and “protect and serve” becomes just “protect”. For instance, you get pulled over for speeding, and then you get questions like, “do you have any weapons?” This gets asked at pretty much every stop now. And without some type of reasonable articulable suspicion, or probable cause to ask it, it’s just plain old harassment. And the correct answer is, its none of your business if I have any weapons. Its a free country. Though that might just invite the officer to remove you from the vehicle and possibly arrest you. If you really piss them off, they arrest you for “obstruction of an officer”, i.e., “contempt of cop.” Or maybe assault of an officer – saying you somehow threatened them. Then try and prove them wrong – prove yourself innocent.
There was an interesting article in the Charleston Gazette this morning, about a lecture which was given to the Charleston Police Department recently by Alex D. Huskey, superintendent of the Indiana State Excise Police.
Huskey asked the 16 officers at the class why the approach they have to many situations was tactical.
“It’s because of what you might encounter,” one officer said.
“Safety reasons. Everyone you run into is a potential threat,” another said.
Huskey agreed that officer safety is one of the most important things an officer must focus on, but he said that police across the country spend the least amount of time focusing on what makes people tick because they are too busy focusing on how to protect their own lives.
We are not enemy combatants. We are free American citizens, and the situation should be rare where a government employee with a gun points it at you and issues commands. But unfortunately, in the name of “officer safety,” we allow it to happen everyday. A bank robbery suspect? Fine. But innocent motorists? If they were speeding, give them a ticket. But quit harassing people.
- 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.
It’s not our fault…. Civil Liability of West Virginia Police Officers/Departments in Pursuit Situations
In this morning’s Beckley Register-Herald, there was an article about a West Virginia State Police pursuit involving an ATV. Apparently there was undisputedly a pursuit of an officer in a cruiser, chasing a man on an ATV. Also undisputed, at some point the ATV wrecked and the man was killed. Where the issue lies is, did the wreck occur during the pursuit, or had the officer abandoned the pursuit, after which the man wrecked on down the road? And could the West Virginia State Police be liable for a man fleeing on an ATV only to accidentally kill himself in the process?
The important fact is that the driver of the ATV was killed. He had apparently stolen the vehicle, and thus had fled. The end result is that this case is much, much different from a scenario in which a passenger on the ATV was killed, or some other potentially innocent third party. I’m not going to comment on whether I think there is a case there or not for the deceased’ driver’s estate, but here is some helpful information for cases where the facts are slightly different:
This is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia earlier this year which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia. This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:
Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party. It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).
As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct. However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.” Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights. With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.
Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera. The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5. For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.
West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:
(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(3) Exceed the speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement of [or] turning in specified directions.
(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.
(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.
In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic. Specifically, the Peak Court reasoned:
Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.
Peak, 185 W.Va. at 558, 408 S.E.2d at 310.
There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect. This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds). But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990). But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).
In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.
Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers
“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”
The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless. Regarding Sergeant Miller’s affidavit, the Court noted that:
The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.
Sergent, at S.E. Page 320-21.
- 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.
In the name of “officer safety”
Rick Horowitz from Probable Cause had an interesting post regarding “officer safety” and the rights of motorists. In essence, his theory, which has long been a pet peeve of mine, is that supposed “officer safety” is used to violate the rights of motorists. If you have ever tried an “obstruction” case, you will hear the prosecutor ask officers who conducted a “traffic” stop questions about their training and “officer safety” and why they instruct persons to get out of the vehicle – or to not get out of the vehicle – or to put their hands in a certain place, and so on and so forth. Many times this coincidentally coincides with the officer(s) subsequently finding something incriminating in the vehicle. For example, here is a portion of transcript from an obstruction (among other things) trial:
7 Q So you turned on your blue lights; right?
8 A Yes.
9 Q And the purpose of doing that is to tell the driver
10 of the vehicle what?
11 A To pull over.
12 Q And, was it clear to you, that there was a driver
13 of that truck, with the Florida tags; you should see the
14 driver?
15 A Yes.
16 Q Did you attend the State Police Academy before
17 becoming a West Virginia State Trooper?
18 A Yes. All troopers are required to attend the
19 Academy before —
20 Q And how long — how long is the Academy?
21 A It’s going to be for 30 weeks, equivalent to seven
22 months.
23 Q And, as part of your training, do you receive
24 specific training in traffic stops?
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1 A Yes, we do. Like a lot if training, they try to go
2 over and over. What the purpose of that is – they call it
3 muscle memory – when you get into a high-stress situation,
4 or your stress level elevates, whatever you practice, their
5 theory is that you’ll just automatically — you’ll
6 automatically do in a high-stress situation.
7 Q And from your training, and experience as a West
8 Virginia State Trooper, are traffic stops considered high-
9 stress situations?
10 A Yes. Through the training that we received,
11 everything other than a known felony stop, we actually
12 consider an unknown stop, which is an unknown risk. Mainly
13 because we don’t know the driver, we don’t know who’s in the
14 vehicle or what’s in the vehicle. So, yes, they all — all
15 of them are considered high-stress and possible risk stops.
16 Q And, from your training at the Academy, and then
17 after you were out of the Academy, were you taught, and
18 trained, in what percentage of police officers — shootings
19 of police officers occur during what should be routine
20 traffic stops?
21 A Yes. It’s actually a higher percent than I like.
22 Actually, I believe the US Supreme Court had a case on it,
23 referenced where up to 30 percent of actual police shootings
24 occurred during routine police traffic stops.
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1 Q Now, as a practicing Trooper, can you estimate how
2 many traffic stops you have made a month, at this point?
3 A And I don’t do a lot of traffic, some’s a lot
4 higher than this, but I usually pull over, I would say,
5 between 25 to 35 cars a month, for various traffic reasons.
6 Q And when you make those traffic stops, do you
7 follow the procedures that you were taught in your training
8 at the West Virginia State Police Academy?
9 A Yes, ma’am, every time.
10 Q As to the particular procedures that you were
11 taught, what is the goal, what’s the purpose of those
12 procedures that you are to follow in making a traffic stop,
13 as a State Policeman?
14 A The main thing is, basically, risk reduction, for
15 the safety of everybody there.
16 Q And does that include safety of the officer?
17 A That includes the safety of the officer, safety of
18 whoever we’re pulling over in the vehicle, along with the
19 public safety.
20 Q And what are the risk factors in the traffic stop,
21 that your procedures are designed to reduce?
22 A With that, especially, and probably most of you can
23 relate to seeing videos of being beside the roadway. First
24 off, it’s very dangerous for traffic stops, for other
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1 traffic coming by, just ’cause you’re in such close proximity
2 to the traffic flow; that, in one, is dangerous.
3 Two, like I said, you don’t never know who the driver
4 is, or who you’re pulling over. Mainly, if you’re doing a
5 traffic stop – and, mostly, I’m going to give somebody a
6 warning, but the driver don’t know that – and if it’s
7 somebody else, it could be very dangerous. Or, if they
8 robbed a bank, thirty minutes down the road, and I’m unaware
9 of that, they might have a gun, or something that could
10 actually hinder myself during this stop, which I’m unaware
11 of.
12 Q And what about the flight risk; could you explain
13 to the jurors the risk of flight when you have an unknown
14 traffic stop?
15 A Yes. And it is highly likely that, you know, even
16 when I get out of the vehicle, that the car might pull off.
17 Several occasions, you go to approach the vehicle and
18 somebody – I mean, I’m sure you’ve seen it on TV – jumps out
19 of the vehicle and takes off running. So — and if I
20 actually approach the vehicle and, let’s say, they are
21 wanting to cause me harm, and they are able to do some kind
22 of harm from me, it’s very possible for them just to take
23 off without any help to myself.
24 Q When you pull over the vehicle, either because it
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1 — the driver is a suspect in a crime, or because of a
2 traffic violation, when you pull over a vehicle, is there
3 information that you are supposed to relay, and also
4 information that, by your training and experience as a West
5 Virginia State Trooper, you are supposed to be receiving?
6 A Yes, ma’am. The start off, every time we perform a
7 traffic stop, we always want to notify our dispatcher –
8 advise ‘em of our location, that we’re actually on a traffic
9 stop, so they can check on us and know what we’re doing.
10 Some information you want to give to start off with is color
11 of the vehicle, like I said, the location of where the stop
12 is. And also important, is the license plate of the
13 vehicle. With the license plate, they’re able to return the
14 vehicle it’s supposed to be on, who owns the vehicle. And
15 they also can check to see if that license plate or vehicle
16 has been stolen, or is a stolen vehicle.
17 Q And do you do that, as much as possible, unless you
18 are obstructed or prevented from doing that, every time you
19 make a traffic stop?
20 A Yes, ma’am.
21 Q Now, do you — are there standard procedures, that
22 you learned in your training, and you practice in your 25 to
23 30 traffic stops a month, first of all, as to whether or not
24 you want the driver to stay in the vehicle, or get out of
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1 the vehicle?
2 A Yeah. Through our training, and it might vary from
3 department to department, but what we want is the driver to
4 actually stay in the vehicle.
5 Q And why is that, explain that, if you would?
6 A The reason to have them stay in the vehicle, it’s
7 more of a con — we have more control if they’re in the
8 vehicle. For the safety issue, like I said, to mention
9 first, it’s a — a lot of times, we’re on the highway,
10 interstate, busy roads, if the driver’s in the vehicle, it’s
11 a lot less likely that he’s going to get hit by a passing
12 car. Two, we’re able to approach the vehicle and kind of
13 keep an eye on the driver and see what he’s doing. Where,
14 if he gets out of the vehicle he could either (a) run, or do
15 something else, which would make us have a lot less control
16 over the driver.
17 Q Are you even taught, and trained, to stand in a
18 particular relation to the driver’s door?
19 A Yes. And, as we’re taught, when we’re approaching
20 a vehicle – and if you ever — anyone’s ever got pulled
21 over, you maybe even noticed this and wondered – I always
22 take my hand and touch the back of the vehicle in case
23 something happens, you know, and the driver leaves. Maybe
24 somebody might be able to put my connection with that Page 363
1 the vehicle?
2 A Yeah. Through our training, and it might vary from
3 department to department, but what we want is the driver to
4 actually stay in the vehicle.
5 Q And why is that, explain that, if you would?
6 A The reason to have them stay in the vehicle, it’s
7 more of a con — we have more control if they’re in the
8 vehicle. For the safety issue, like I said, to mention
9 first, it’s a — a lot of times, we’re on the highway,
10 interstate, busy roads, if the driver’s in the vehicle, it’s
11 a lot less likely that he’s going to get hit by a passing
12 car. Two, we’re able to approach the vehicle and kind of
13 keep an eye on the driver and see what he’s doing. Where,
14 if he gets out of the vehicle he could either (a) run, or do
15 something else, which would make us have a lot less control
16 over the driver.
17 Q Are you even taught, and trained, to stand in a
18 particular relation to the driver’s door?
19 A Yes. And, as we’re taught, when we’re approaching
20 a vehicle – and if you ever — anyone’s ever got pulled
21 over, you maybe even noticed this and wondered – I always
22 take my hand and touch the back of the vehicle in case
23 something happens, you know, and the driver leaves. Maybe
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1 vehicle.
2 As I’m continuing to approach the driver, we can always
3 look through the back glass and the windows, see if he’s
4 maybe reaching under his seat to grab a firearm or trying to
5 hide something he’s not supposed to have. With standing at
6 the vehicle, we always like to stand right behind the driver
7 door, which allows us to have a — the best view we can of
8 inside the vehicle, to check to see if there’s anything
9 that’s not supposed to be there, or any weapons that the
10 driver might be able to reach and grab.
11 Q And would it be fair to say that, obviously, any
12 time the driver is allowed out of the vehicle, that
13 increases the flight risk, and the risk to the public?
14 A Right, yes.
15 Q Then what about your training and experience as a
16 State Policeman, what do you instruct – order – the driver
17 to do, if he gets out, as to his hands?
18 A And, on traffic stops, it happens, sometimes the
19 driver will go to get out of the vehicle. Order them to get
20 back in the vehicle and, usually, they comply with that
21 order, and then wait for me to approach ‘em.
22 Q And if a driver gets out of the vehicle against
23 your orders, what do you tell them — where do you want his
24 hands? Page 364
1 vehicle.
2 As I’m continuing to approach the driver, we can always
3 look through the back glass and the windows, see if he’s
4 maybe reaching under his seat to grab a firearm or trying to
5 hide something he’s not supposed to have. With standing at
6 the vehicle, we always like to stand right behind the driver
7 door, which allows us to have a — the best view we can of
8 inside the vehicle, to check to see if there’s anything
9 that’s not supposed to be there, or any weapons that the
10 driver might be able to reach and grab.
11 Q And would it be fair to say that, obviously, any
12 time the driver is allowed out of the vehicle, that
13 increases the flight risk, and the risk to the public?
14 A Right, yes.
15 Q Then what about your training and experience as a
16 State Policeman, what do you instruct – order – the driver
17 to do, if he gets out, as to his hands?
18 A And, on traffic stops, it happens, sometimes the
19 driver will go to get out of the vehicle. Order them to get
20 back in the vehicle and, usually, they comply with that
21 order, and then wait for me to approach ‘em.
22 Q And if a driver gets out of the vehicle against
23 your orders, what do you tell them — where do you want his
24 hands?
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1 A If a driver gets out of the vehicle, and he’s not
2 replying, of course, the stress level and the threat level
3 increases, first because he’s not obeying my order, which is
4 a lawful order. Second, with the hands, I don’t want ‘em
5 anywhere near the coats or pockets, where they could reach
6 — or anything that might cause me harm. Either up in the
7 air where I can see ‘em, up on the vehicle where I know he
8 can’t reach and grab anything to — that might harm myself
9 or any public.
10 Q Was there a phrase that you were taught, that your
11 instructors at the Academy used, to emphasize the need to
12 keep the suspect hands up in the air or on a car?
13 DEFENSE ATTORNEY: Your Honor, I’m going to object to
14 the leading nature of this —
15 THE COURT: Overruled; 611 allows me to permit this
16 type of preliminary stuff. I’m going to allow it; go ahead.
17 THE WITNESS: Yes, as the — as the instruction — in
18 the Academy, they often teach us, they always tell us that
19 feet can hurt you, but hands can kill you. Basically,
20 meaning just, you know, being kicked and stuff can hurt you,
21 but the hands can always grab a weapon such as a knife or a
22 firearm.
23 PROSECUTOR (resuming):
24 Q Now, on the evening of June 8th of ‘07, after you
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1 turned on your blue lights, can you tell the jury what did
2 the defendant do?
As I said, this has long been a pet peeve of mine. Of course we all respect law enforcement officers and acknowledge that they have a sometimes dangerous and difficult job – just like many other professions. However, they chose to be law enforcement officers. And they chose to pull someone over for a “traffic” violation. That they are worried, or trained to be worried, about their own safety, should not make it okay for them to treat someone like a criminal. It’s one thing if you are pulling over a bank robbery suspect, but if you are pulling someone over for going 6 mph over the limit, you should not have your hand on your gun. You should not shout at someone as if they are armed and dangerous. Why should someone pulled over for a traffic violation have to keep their hands on the wheel? What can be more demeaning that to be treated like a criminal as a practice and procedure of a law enforcement agency? I would venture to say that more people are probably wrongly shot by law enforcement officers because they are jumpy due to all of this “training” than law enforcement officers who are actually shot by a traffic-stop motorist (especially in high crime areas where “traffic” stops are mostly investigatory pretext stops). Don’t believe me? Google it. And surely, more officers are hit by passing motorists distracted by the emergency lights than who are shot. And that is unfortunate, but it was their choice to engage in a profession where they have to stand on the side of the road and encounter strangers in cars. That is just a risk that comes with the job. It is not okay to feel safer by violating the rights and respect of innocent persons.
And it definitely is not okay to abuse the purpose of “officer safety” in order to assist in more efficient criminal prosecution, which is done in mainly two ways, such as was the case in the above-transcripted case: (1) to achieve an initial arrest of the person in order to question them and inventory/search their vehicle, and (2) to throw in yet another charge to try the suspect on and/or use for plea negotiations.
Note: the defendant in the above-transcripted case was found not guilty of obstruction, despite the lengthy oratory of the prosecutor and trooper.
- John H. Bryan, West Virginia Attorney.
Cops and Prosecutors in Southern West Virginia – Part Deux
Since my last post on this topic, much has happened in Pocahontas County, West Virginia. Yet another deputy of that county, was charged with a felony – actually five (5) felonies. When I first heard this, I knew it was just a matter of time before the charges were dismissed, since law enforcement officers are apparently above the law in that county – as we all learned when this deputy’s buddy was previously given a sweetheart plea deal in his felony criminal case which I detailed earlier.
Indeed, the Pocahontas Times reported that the charges have now been dismissed. Apparently the prosecuting attorney (and her assistant) were recused from remaining on the case (which is a convenient thread that runs through just about every case where law enforcement officers are charged criminally). Actually, they requested to be recused. As I have pointed out previously, why and the heck is there a conflict for a prosecutor when a cop breaks the law? In my opinion, this is step No. 1 for the cop-gets-off process. So, this prosecutor and her underling were recused. So the defense makes a motion to dismiss. Then there is a hearing with no prosecutor. So a motion to dismiss is heard with just the cop and his defense attorney in the room. Obviously the result was that the charges were dismissed. Apparently step No. 2 in the cop-gets-off process is to have no prosecutor show up at the trial.
According to Allegheny Mountain Radio, no prosecutor was at the hearing or assigned to the case due to “miscommunication.” Show me a case where Joe Blow got his five felonies dismissed due to “miscommunication” between prosecutors. It would never happen. But, conveniently, we have a cop in a rural county, where that exact thing just happens to take place. The stars and the planets align, hell freezes over, and the man walks free and clear.
The prosecutor seemed surprised and disappointed this happened. She is quoted at one point in the article:
Prosecuting Attorney Donna Price said Tuesday afternoon that because of that, Smith ordered the assistant prosecuting attorney out of the courtroom before he could explain the state’s position.
Nothing really surprises me about what happens in this particular county. But this sentence did catch my eye. It reads that “Prosecuting Attorney Donna Price said Tuesday afternoon that….”
I was in the Pocahontas County courthouse on Tuesday afternoon. I desperately needed to speak with the Prosecuting Attorney on behalf of a client. I had attempted to call her probably twenty times. I left message after message after message over the course of months. I never received a return call, and the receptionist at her office would consistently, and rudely, brush me off every time I urged her to have the prosecutor return my call (as if a taxpayer-funded public office employee had the right to be rude to lawyers, or anyone else, calling that office…). Mind you, I have dealt with many a prosecutor, in many different counties, and never have I had this problem before. But, in this instance, my client had not only a pending criminal case, but a pending civil case against the county and her office. I thought maybe that had something to do with it.
She had two arrest warrants out against the person, and I was there to turn him in and get a bond set – in part because we were there for a marathon session of depositions which would last two days. The only time I was able to speak with her previously was when I dropped into her office unannounced. At that time, she agreed that she would agree to a reasonable bond. Well, when I actually showed up that morning, which was expected, and which was Tuesday July 7, 2009 – the “Tuesday” referred to in the article – her office door was closed. Her assistant prosecutor was there, and said that she was not in the office that day, that she was out all day because of a death in her family.
So was she in the office/courthouse on Tuesday July 7, 2009 and avoiding me, or was she out? Maybe she was out part of the day, or maybe she spoke to the reporter over the phone…. I don’t know for sure, but I really didn’t appreciate being barred access to the prosecutor when this reporter had full access.
But there was more.
After telling me of his boss’ absence, the assistant prosecutor then said that he had spoken to her about my client, and that she wanted a “six figure bond.” This was for two misdemeanors mind you. It seemed obvious to me that this was retaliation for the civil case having been filed. A six-figure bond for two misdemeanors? Not only was this a true injustice, but it was an ambush. Both myself and my client were ambushed by this request for a “six figure bond” when I was previously assured that bond would not be a problem. Most other prosecutors would have given me a heads-up beforehand. The goal seemed obviously to put my client in jail as retaliation. Luckily, I was able to negotiate a slightly lower bond and my client was able to bond out.
But as the Cat in the Hat says, “that was not all, no that was not all.”
I had previously demanded two videos from the prosecutor. They were demanded by a prior attorney several times, and they were demanded by myself several times, including through a FOIA request, a motion to dismiss due to failure to produce evidence, and a civil lawsuit. The two videos, showing two arrests of my client, for which he was charged, were never turned over to me or my client. In fact, the prosecutor wouldn’t even acknowledge the existence of one of the videos, even up until the day of the depositions in the civil case (the Tuesday I was talking about).
Well guess who did have both of the videos….
That’s right. The civil defense attorney for the county, and the civil defense attorney for the State Police both had the videos. So here we have a criminal defendant charged almost two and a half years ago with committing crimes. Jury trials are scheduled with no videos being produced. The defendant fails to appear because the videos were not produced and he is afraid of getting railroaded. He is charged for failure to appear (twice). They still don’t produce the videos. They get a FOIA request. They finally admit to one of the videos, but still don’t produce. A motion to dismiss due to failure to produce evidence is filed. They still don’t produce. A civil lawsuit is filed. They still don’t produce. Another seven months pass while the civil case is being litigated. The prosecutor still doesn’t produce the videos to the defendant, who still has pending criminal charges.
Mind you, the prosecutor never even admitted to the existence of one of the videos to myself or my client, yet the civil defense attorneys were provided digital copies of both videos. We saw them for the first time during a videotaped deposition. You guessed it, compliments of the prosecutor, it was another ambush.
When I went back down to the prosecutor’s office, her door was still closed (this was the next morning however), and still apparently ”out of the office.” I confronted her assistant prosecutor who was standing in the reception area. I told him that I didn’t appreciate the suppression of this evidence from me while the same was provided to civil defense attorneys, unbeknownst to me. I told him I would get to the bottom of the matter, and that if I found out that anything unethical was committed, I would report the same to the state bar. Well that did it. He started yelling at me, accusing me of threatening him, and, suddenly, the boss prosecutor was back “in the office,” and opened the door to her office and walked out and began yelling at me as well, telling me that she didn’t have to do a damn thing basically. Following her lead, PCSD deputy Brad Totten then got in my face and joined in, shouting at me. All of them were shouting, in part, that they thought that I had received the videos, and that their previous secretary must have mistakenly failed to send me the videos.
Give me a break. If that is true, then give me her name and I’ll take her deposition. Show me the cover letter that should have accompanied the videos. Show me proof of postage. Show me any proof.
Res ipsa loquitur – the thing speaks for itself.
For the record, I would like to know whether Prosecutor Price was “out of the office” at approximately 9:30 a.m. on Tuesday July 7, 2009 – the same day and time that according to Alleghany Mountain Radio, she sent Assistant Prosecuting Attorney J.L. Clifton downstairs to inform her about what was going on in the aforesaid deputy’s prosecutor-less hearing in magistrate court, and also the same day that she was available to the Pocahontas Times reporter who interviewed her regarding the matter. And was there ever any attempt at sending me the videos? Maybe a special prosecutor should be appointed to investigate that.
Additionally, maybe someone should investigate a prosecutor’s office who uses the threat of continued criminal prosecution as leverage in civil litigation, which happened in this case. It wouldn’t be the first time Pocahontas County has had a prosecutor investigated.
There’s no real conclusion to the story, just the fact that I’m now all ‘riled up and even more willing to speak out against injustice occurring daily in places like Pocahontas County, West Virginia. On a lighter note, I was really impressed with Magistrate Kathy Beverage of that county. I wish more magistrates had her inherent sense of justice and courage.
Hopefully I’ll get to Part III sometime soon.
- 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.
Double Dipping Mall Officers
There was an article in the Charleston Gazette this morning about the ongoing criminal trial of an officer accused of “double dipping” – working as a mall security guard while still on the clock as a police officer. I probably wouldn’t have commented on this, but I happened to glance at the article and noticed that the defense attorney was one of the two defense attorneys who participated in the police liability CLE in Charleston a few months ago. He is a civil defense attorney from a large Charleston firm who primarily defends police officers/departments in civil lawsuits. It makes me wonder. Is the City (Charleston Police Department) or it’s insurance carrier paying for his criminal defense? Or did this officer just respect this particular attorney’s skills through past experience or by reference and hire him personally as his criminal defense attorney? It might be a good FOIA request issue for the Gazette to take on. If the City is providing the defense, what is the reason? How much is it costing taxpayers? And should an officer be provided with a prominent and expensive attorney when charged with a financial crime? I think these are all good questions if indeed the City is paying the bill.
This also reminds me: I had a former police chief, who subsequently became a federal corrections officer, testify at a murder trial for which he was the investigating officer. At the time he traveled to the trial location, he was being paid by the federal government. Additionally, the City took it upon themselves to generously and liberally pay the man for his hourly time during his trip and during his testimony. Of course this was never disclosed to the defense. I later found out about it from a letter to the editor in that city’s local paper. Unfortunately, the Supreme Court didn’t really care about the nondisclosure issue. He was given the opportunity to return the money to the City, which I believe he did. He was not prosecuted.
- John H. Bryan, West Virginia Attorney.
DOJ investigations of pattern or practice police misconduct resume (and shift course)
You might have noticed in the news today, as per CNSNews.com, that the DOJ has commenced an investigation of Arizona Sheriff Joe Arpaio – a man known for the strict enforcement of laws – and who is hated by the political left. The article doesn’t say so, but his Sheriff’s Department is being investigated by the Special Litigation Section of the Civil Rights Division of the DOJ – a place I once worked.
It’s probably not a coincidence that this investigation comes on the heels of the inauguration of President Obama. Either every career liberal in the DOJ has finally been given a green light to conduct their dream investigations, or grateful federal employees are scrambling to secure their jobs in light of the sudden shift in political leaning in the executive branch.
The Special Litigation Section is responsible for pattern or practice police misconduct investigations (among other things) – which results only in civil – not criminal – litigation. Individual incidents could be prosecuted criminally by the Criminal Section of the Civil Rights Division.
You will notice from the few and far between police misconduct investigations in the past 8 years, that they were not high on the Bush Administrations’ priority list – except to assist law enforcement agencies throughout the country in evading civil 1983 lawsuits. For instance, see this letter to the Austin Police Department from the SLS. By the way, this letter, and others that the DOJ provides the public, contains some great stuff for plaintiff’s attorneys, or anyone else who wants to learn more about proper “use of force” and “supervisory oversight” and other policies and procedures for police departments – at least according to the DOJ.
Nevertheless, the SLS has not yet even listed the Arpaio investigation in it’s website. And until then, the public will not know what the specific allegations are.
- John H. Bryan, West Virginia Attorney.
Do prosecutors really believe law enforcement are angelic?
I frequently end up getting retained to represent criminal defendants in cases involving law enforcement officers as “victims” – usually in counties other than the one in which I reside. Without fail, the prosecutor assigned to the case will be gung-ho moving forward with the prosecution, even if the evidence is slim to non-existent (most usually consisting solely of the verbal testimony of the officer). Mind you, I have encountered a prosecutor who had the gumption to call a spade a spade and dismiss the case – but that was an exception to the rule.
The other day I was speaking with an assistant prosecutor whom I had never met before, regarding a similar case. The facts were extremely disputed, not just by the defendant and the “victim,” but by the eyewitnesses. Basically there was a fistfight involving a civilian and an off-duty officer. When other officers responded, do you think they approached the situation fairly? Of course not, they arrested the civilian without taking any eyewitness statements – based solely on the statement of the off-duty officer – and of course added in a “contempt of cop” charge (obstruction) as the cherry-on-top, for allegedly not withdrawing from the fight quickly enough. Since they were not present when the fight began, they have no idea who was the aggressor, and who was engaging in self defense.
When I tried to explain this disparity to the prosecutor, suggesting that the charges be dismissed, he looked at me like I was crazy, replying something to the effect of “our officers are perfect creatures molded in the image of Christ.”
Do law enforcement officers transcend humanity when they get sworn in? Are they somehow immune from human flaws? Has no law enforcement officer on the face of the earth, throughout recorded history, ever told a lie? Ever protected one of their own? Ever trumped up charges against someone they didn’t like? Was the term “blue wall” created by some UFO researcher digging through the National Archives? Of course not. There are thousands of provable, documented incidences, and the fact that a prosecutor can’t have an open mind about such things is just plain scary.
I suppose this is why our founding fathers guaranteed us the right to be tried by a jury – unless of course your in West Virginia and are charged with a misdemeanor and you fail to request one within twenty days….
- John H. Bryan, West Virginia Attorney.
“Handling the Police Liability Claim” in West Virginia CLE
I am presenting the plaintiff’s portion of a continuing legal education seminar entitled “Handling the Police Liability Claim” in Charleston, West Virginia on March 27, 2009 at The Summit. I am presenting an overview of state law involving civil actions against police departments and officers, as well as an overview of common liability issues. Among the items discussed will be forms of immunity, criminal procedure rules, state case law, and state law causes of action. I probably will also discuss the significance and procedure of the Department of Justice’s pattern or practice investigations of police misconduct.
There also will be two seasoned defense attorneys there discussing an overview of federal law, an overview of the police internal investigation and disciplinary process, the filing of a state civil action, and the defending of a police liability claim. I am really looking forward to hearing their viewpoint and strategies for defending these cases.
You can register or find out more information on this CLE by calling 1-800-930-6182, or by visiting NBI’s website.
– John H. Bryan, West Virginia Attorney
Police and Governmental Liability Case Filed against the State and Pocahontas County
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.
Trooper Misconduct Alleged in Kanawha County
The Charleston Gazette published an article today entitled, “Woman alleges trooper forced sex.” This is an odd case. Something just isn’t right. The allegation is that this woman was leaving a bar in downtown Charleston and was pulled over by this trooper for suspicion of DUI. During the course of the DUI stop there was some conversation between the two and the trooper ended up following her home to her married friends house. There she alleges that he pressured her to have sex and that she only complied because he was a state trooper.
The really surprising part is that this was at least partially caught on a surveillance camera by the married couple who lived in the home.
If I’m wearing my police liability hat, this sounds like a good case with rare video tape evidence of police misconduct and a potential rape situation. But when I put on my criminal defense hat, this seems extremely suspicious. The central question that I want answered is, who, what, where, why and how was this surveillance footage captured? Could this be a set-up? Did she call ahead? If so, why not just call 911?
With respect to a police liability civil case, there’s really no excuse for the trooper to have been in this house. He most likely will have to explain that he went there consensually with her, which may not be illegal, but may get him fired and may get the State sued. But from a criminal case standpoint, this woman’s story is extremely fishy. It will be interesting to find out what the deal is with this video.
- John H. Bryan, West Virginia Attorney
More Police Misconduct in Montgomery, WV
It was only a week or so ago that I posted about some lawsuits that were filed against the Montgomery, West Virginia, police department. Now more lawsuits have been filed, and the FBI has opened an investigation.
According to an article in the Charleston Gazette this morning, there are three incidents being litigated and investigated, and they all surround Montgomery police officer Matthew Leavitt. Leavitt was suspended after being accused of beating Twan Reynolds on September 26.
According to the article:
Twan Reynolds and his wife, Lauren, accuse Patrolman Leavitt and Patrolman Shawn Hutchinson and of repeatedly hitting Twan Reynolds over the head with a blackjack, kicking him in the back and spraying his eyes with Mace at close range.
They filed a lawsuit in Kanawha County Circuit Court last week.
They also say Leavitt repeatedly used a racial epithet against Twan Reynolds, who is black, and Lauren Reynolds accused Leavitt of licking her on the neck during an interrogation and saying, “Little whore, you like it like that.”
Leavitt and other officers are accused of other acts of violence, and of saying things like this:
“He threatened to ‘blow my fat black ass away,’” White said. “He said, ‘Bitch, I own you. I own the streets of Montgomery.’”
“When he handcuffs me, he throws me against the car and told me to ‘Quit screaming like a little bitch.’”
“I said they were going to jail for neglecting me,” Carr said. “Then Leavitt said, ‘You can’t prove shit,’ and hit me in the head with the nightstick.”
And then there were things that he said to the newspaper:
“She is a constant nuisance,” Leavitt said, adding that the girl had been in juvenile detention in the past.
“Even if I was the biggest racist on earth, which I am not, that would seal my coffin as a police officer,” Leavitt said. “I would not be stupid enough to utter that word while wearing a badge. … That is just stupidity. But again, that is the first allegation I face if a suspect is black.
“I can’t help the fact that I was born a white man. I don’t care that I was born a white man. It just so happens that the majority of the criminals in Montgomery, due to demographics, are African-American. When I worked in Smithers, most were white.”
For what it’s worth, juvenile proceedings are supposed to be sealed and confidential, and it’s completely inappropriate for a police officer to make statements to a newspaper regarding someone’s juvenile record or proceedings. But I guess that pales in comparison to this guy’s arrogance, both in his statements to the victims while he was beating them up, and his bigoted statements to the newspaper.
– John H. Bryan, West Virginia Attorney
The job of defense is only easy when your client is the cop
The job of being a criminal defense attorney is a difficult one, and more so because you are constantly contradicting and questioning the testimony of police officers. Oftentimes it’s a losing battle, because most jurors are reluctant to believe that a cop would lie – or even exaggerate. But the tables turn in the rare instances when cops are charged with civil rights violations.
Bobby Frederick at the South Carolina Criminal Defense Blog had been covering the criminal trial of SC Trooper Steve Garren, who was basically caught red handed by his dash cam of swerving to hit a fleeing pedestrian suspect, all-the-while claiming “yeah, I hit him. I was trying to hit him.”
Despite this video evidence, replete with an audio admission, the jury found him not guilty. Now I have no idea what happened at the trial or in the jury deliberations, but the fact that this guy was a state trooper was the 800 pound gorilla in the courtroom. Certainly this would have been evidence beyond a reasonable doubt to a jury if we were talking about a civilian defendant. But jurors will give police officers a huge benefit of the doubt – whether it be with respect to weighing credibility against the defendant, or with respect to the rare instances where law enforcement officers are actually held to task for committing a crime.
These are one of the rare, rare situations where a jury will ever give a criminal defendant the benefit of doubt – including possibly acquitting him despite their belief that he was guilty. The jurors may have thought, yeah he did it, but the guy he hit deserved it, he shouldn’t have been fleeing.
– John H. Bryan, West Virginia Attorney
Cops and prosecutors in southern West Virginia get preferential treatment when they break the law – Part 1
Note: Since this post was posted I spoke with an elected prosecutor who requested that I insert the caveat that these prosecutors are the exception rather than the rule. I would agree with that perception since there are several prosecutors of whom I think highly. Of course, it is no surprise that there are cops and prosecutors out there who do bad things. None of us have yet attained perfection, we are all sinners. My main point herein is that despite the proven existence of some bad eggs, the system will almost-unconsciously protect their own. But these are relatively isolated incidents and are not necessarily indicative of West Virginia’s cops and prosectors statewide. But, as you will see, and as will be detailed in Part 2, these incidents weave a tangled web in several key jurisdictions. Also, I made one correction to the post. I previously incorrectly stated that the charge of wanton endangerment with a firearm is a misdemeanor, when it indeed is a felony charge. – JHB 10/2/08.
Note 2: I also spoke with a judge – uninvolved in any of these matters – who commented that these problems are due to ineffective prosecution. It’s correct that it’s not the judge’s fault that a sweetheart deal is made, or that a person is never charged at all. And some have attempted to construe my commentary as applying to the presiding judges. That is not correct. Judges do not make those decisions – usually. – JHB 12/15/08.
For some reason, newspapers don’t like to report scandal and corruption on behalf of cops and prosecutors in southern West Virginia. There are a couple of cases in this past year that I think are noteworthy that most people have no idea about.
There was an assistant prosecuting attorney in Pocahontas County named Anthony Tatano. A “Criminal Complaint” was filed in March of this year charging him with stealing trust fund proceeds belonging to minor clients of his resulting from a personal injury case. The criminal complaint can be found here. I have been unable to find even one article about this from Pocahontas County or any other newspaper in the state. He was charged, but never really arrested. You see, cops and prosecutors are not held to the same standard as the rest of us.
He was charged with a misdemeanor, but if you look up the statute he was charged with, West Virginia Code Section 61-3-20a, “Embezzlement by misuse of power of attorney or other fiduciary relationship,” the statute doesn’t say whether the penalty is a misdemeanor or felony. It just says, “guilty of the larceny thereof.” Okay, so we look to the basic larceny statute for the penalty. Well that just depends on the value of the goods stolen. If they are over $1,000, its a felony. If its under $1,000, its a misdemeanor.
Well this criminal complaint conveniently doesn’t mention how much money was stolen from the children, but given the fact that this was proceeds from a personal injury settlement that were supposed to be collecting interest until the children turned age 18, I can’t image the funds were less than a mere thousand dollars. In fact, I have yet to hear of any personal injury case that was settled for less than one thousand dollars.
So the cops were essentially forced to charge him – because the family was probably complaining and they wanted their money, and because you can’t argue with bank records – but they charged a misdemeanor and remained silent on the amount of funds that were embezzled.
Then, the record goes completely silent until yesterday. An article appeared in the Pocahontas Times, titled “Magistrate Court September 25, 2008.” The article was basically a summary of everything that happened in Magistrate Court in the past week. Buried at the bottom of the text was the following:
Anthony Tatano, of Marlinton, appeared in court on the 19th on a charge of obtaining money under false pretenses. He was released on $1000 bond. On Monday Tatano pled guilty to two previous charges both embezzlement, before Magistrate Miller. On each offense, he was sentenced to six months home confinement, to be served concurrently, fined $250, and assessed $159.53 in court costs.
There was no mention of him being an assistant prosecutor. Was he fired? Did he resign? The state bar website still indicates that his license is active – though I can’t imagine that disciplinary action would not be taken for embezzling client trust funds (especially children). Many lawyers get federal indictments and go to federal prison for this. But not in Pocahontas County. You get a sweetheart deal that nobody even knows about.
This is the standard for prosecutors in southern West Virginia. The law doesn’t apply to them. They are better than you. They know the cops. They are the law. Talk about double standard….
Then there is the case of former deputy Robert Alkire, II. Some of his scandal was actually reported in the Charleston Gazette – but believe it or not, wasn’t even mentioned i the Pocahontas Times (at least not on their website). However, even with the Charleston Gazette, the record goes completely silent.
Deputy Alkire, II, was the son of the Sheriff of Pocahontas County. So he goes to his significant other’s home in his patrol car and with his department-issued firearm. He gets into a “domestic dispute” and fires the pistol during the argument. The authorities show up. The Sheriff shows up.
Is he arrested and taken to the regional jail like Joe Blow would have been? No, of course not. He was taken to the hospital for “medical treatment.” Poor little Sheriff’s son threw a hissy fit and fired his gun, so he obviously had a medical problem that needed emergency treatment. But he was placed on paid administrative leave once the public found out what had happened. Then they decided that had to charge him with something, so they charged him with one count of wanton endangerment with a firearm – a felony – and set bail at a mere $3,000.
Go ahead and try to find another felony charge in the state where a gun was discharged and the defendant was only given a $3,000 bond.
A special prosecutor was appointed – Dan Dotson. Now Dan Dotson is an assistant prosecutor from Braxton County, and he likes to be a special prosecutor. He asked to be appointed to this case, and he also asked, and was appointed, to the Sawyers case in Greenbrier County.
But Dotson soon got the opportunity to reap what he had been sowing. As I detailed in a prior post, he was subsequently arrested in his own little domestic incident, which was reported by the Register-Herald here. But even from his jail cell, he was claiming that he was still “on the job” and that he was just “staying out of the office for a while until [he could] take care of other matters.” Yeah…sure.
Anyways, the Charleston Gazette publishes an article titled “Braxton prosecutor still on the job.” The article states that Dotson plans to go forward with both the Pocahontas case involving Alkire and the Greenbrier case involving Sawyers. But the article also says this:
Pocahontas County Sheriff’s Deputy Robert Alkire II pleaded guilty several weeks ago to misdemeanor brandishing a weapon, Dotson said. Alkire, son of Pocahontas Sheriff Robert Alkire, was arrested for a Nov. 30 incident in which he was charged with firing his department-issue pistol unsafely.
Well if Alkire has already pled guilty, then what is there to go forward with? And did you catch that? Alkire already pled guilty? To a misdemeanor? Where was the article about that? Good luck trying to find it. He got a sweetheart deal because he is a cop and because his father is the Sheriff. He got out of a felony firearms charge without it ever having been presented to the grand jury, then was allowed to quietly plead to a misdemeanor brandishing charge (thus allowing him to continue working as a cop and possessing a firearm). Then everything was completely buried by the authorities. Poor Joe Blow would have had the book thrown at him. He would have been charged with a felony gun crime and would have had his name plastered throughout the papers. But this guy gets a misdemeanor plea with essentially no penalty and no bad press. Like I said, the law does not apply to cops as it applies to you and I – they are the law.
So what happened to Alkire? Let me give you a hint. Say you have a cop who is pretty much forced out of a county where he scandalously shot his service pistol during a fight with his girlfriend while on duty. What would that cop do to be able to continue making a living. What law enforcement agency would actually hire him and give him another gun and badge? Here’s your hint: it’s somewhere in the Greenbrier Valley, and it is a city police department in a town that nobody wants to drive through because the cops are widely viewed as incompetent perpetrators of a small-town speed trap.
That’s right, our very own City of Ronceverte Police Department. If you don’t believe me, take a look at this. That is a link to the City of Ronceverte Police Department where he is listed as a deputy. They also note on their web page that he is equipped now with an assault rifle, ballistic armor and a Glock pistol. Oh great, just what the poor residents of that town need. All this for a town with only 1800 residents. And people wonder why nobody wants to drive through Ronceverte when you can go around it….
And whatever happened to Dan Dotson’s criminal charges? I wasn’t surprised to find out that a google search did not reveal any articles regarding the resolution of his charges. Like I said, he gets the benefit of a double standard here, just like Alkire and just like Tatano, and this most likely is all the information you will find on the resolution of his case. (I’m not a reporter, I’m a busy attorney, so yes, my investigation was limited to googling things).
And there is much, much more. So consider this Part 1.
- John H. Bryan, West Virginia Attorney
West Virginia Man Charged With Battery for Passing Gas
Once again West Virginia has made national headlines. Linked on the Drudge Report is the headline “Man Passes Gas, Gets Charged With Battery.” I obviously had to click on that one. As I was reading the article I was thinking, “c’mon, give me a break.” Then I saw a “wv” somewhere on the page. I looked around and discovered that this happened in Kanawha County, West Virginia – South Charleston to be exact.
Jose Cruz was arrested for DUI by police in South Charleston. According to the article on WSAZ.com, “when police were trying to get fingerprints, police say Cruz moved closer to the officer and passed gas on him. The investigating officer remarked in the criminal complaint that the odor was very strong.” Jose was charged with battery on a police officer.
There are some pretty funny comments under the article on WSAZ.com. One guy said, “battery is the wrong charge – it should have been assault with a silent but deadly weapon.” Another said, “I guarantee they will use this story as the basis for an episode of “Law & Odor.” Yet another said, “Gas I better stay out of that county.” Someone else coined the term “felonious flatulence.”
Seriously though, this is a waste of taxpayer money, and as the comments prove, a joke. I won’t even bother to analyze whether or not this could be a battery. It should be a crime to charge a frivolous criminal charge. But I won’t hold my breath for that to happen.
– John H. Bryan, West Virginia Attorney
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.
Officer Fired for Stealing Breakfast
WNBC New York reported yesterday that a Morristown, New Jersey, police officer lost his badge for shoplifting eight breakfast sandwiches from a convenience store. The prosecutor was reported as saying that the plea he entered “represents the fact that no one is above the law.”
So police officers are human… They are sinners like the rest of us. Does this mean that all police officers shoplift? No. But it does mean that they have the same problems, faults, regrets, and wrongdoings as the rest of the general public. And when they are caught in something like this, generally they are prosecuted like the rest of us.
However, where the big difference lies is when laws are broken related to their work as a law enforcement officer. What about the situation where a police officer tells a little white lie on the witness stand in order to validate the search or seizure of some guy who possessed drugs? That is a crime. In fact it is a serious crime – perjury. What about the situation where a person runs their mouth to a police officer and the officer arrests that person just out of spite – but for the charges off “obstruction” of the duties of a police officer? Did that officer not commit a kidnapping? A false imprisonment? An illegal arrest? The fact is, that these crimes are committed by law enforcement officers everyday around the country, and nothing is done about it because the persons charged with enforcing the laws – the cops and the prosecutors – are one in the same, and are not going to investigate or prosecute themselves or their buddies unless they have no choice. And as they see it, what is the harm when you know the person is guilty in the first place? And they are serving the public, right? Why punish some poor cop who is just trying to serve and protect? What motive would they have to ever lie or commit any crime?
The fact is, that society – and the judicial system – likes to pretend that cops are perfect, that they are perfect beings, formed in the likeness of Jesus Christ. That they would never, ever, lie under oath, that they would never, ever, use their badge and gun for their own personal gain or to hurt another who has gotten under their skin. But we, as people with common sense, and as people who observe things with our own eyes know better. We know they make mistakes and commit crimes, and do things they are later ashamed of – just like every other human on the planet.
So who are they kidding? Jurors – if they can get away with it.
– John H. Bryan, West Virginia Attorney
Police Officer Out of Control in East Bank, West Virginia
There was an article in the Charleston Daily Mail this morning about a police officer in East Bank, West Virginia, who was “horseplaying” with his taser, tasering a pregnant 18 year old, and a town firefighter. This same guy filed criminal charges against the town recorder/ police commissioner for “retaliating against a police officer.”
This guy – Sgt. Steve Smith – is absolutely out of control. Where are the authorities here? Somebody has got to reign this guy in, take away his gun and put him on administrative leave. He is cited in the article as describing the taser as a “tool” rather than a weapon. I’m not sure how many tools have a trigger and shoot electrically charged barbs that penetrate your skin to send electric volts through your body… but hey, I guess that is just semantics.
The fact is that this guy is dangerous and has no business with a badge or any kind of weapon. Period. If he does this as “horseplay,” can you imagine what he would do to you if he was arresting you, or even pulling you over for a traffic violation.
It’s very scary that some of these smaller-town police departments in West Virginia have absolutely no oversight, and many of the officers have little experience. If they wanted to, they could pull you over, plant some cocaine, put you in handcuffs and take you to jail. Then it’s your word versus theirs. It has happened… The only thing you can do about it is refuse to live in a community that does not responsibly oversee their police department.
– John H. Bryan, West Virginia Attorney.
Cops Shoot Homeless Man 47 Times
As reported by Fox News, citizens in Inglewood, California are outraged about this latest police shooting (the fourth since May). A homeless man carrying a toy gun in his waistband was shot 47 times when he appeared to reach for it.
Is this not disgusting? Cops want to be treated as if they are military. If one of our brave soldiers in Iraq was confronted with this situation, he either would have disarmed the guy, or would have shot him three times in the chest. Even with an M-16, no solider would waste a 40 round clip on one person. But here we are talking about a homeless guy in California. 47 times? 47 times with a toy gun still in his waistband? It’s like these cops develop a culture among themselves where they roam the streets thinking they are soldiers in Iraq. They think they are above the law, and that all of us citizens are their subjects, and that they can kill us at their whim.
And unfortunately, our brave soldiers in Iraq and Afghanistan, through ridiculous rules of engagement, can’t fire on an enemy until they’ve had a bullet practically ricochet off their helmet.
Now, as I have said before, I’m not saying that this is true of all cops, or even many cops in West Virginia. Many of our cops in West Virginia, at least around here, are brave soldiers who have been to Iraq at least once. But I’m sure this is true of many, many police organizations in California, as it is in Florida where I grew up. It is a culture of law enforcement. Especially in Florida where you have a large elderly population. They love cops. They want 10 cops for every one retired person. And for some reason, California just breeds bad cops and incompetent agencies.
And then you have those poor embattled cops in liberal areas of the country, such as Oregon. There, the far left loonies distribute decks of playing cards with cops’ names and faces, encouraging violence against them, when they are only trying to do their job.
– John H. Bryan, West Virginia Attorney.
Caylee Anthony case: perfect example of cops attacking suspects’ families to pressure suspect
As awful as the Caylee Anthony case has turned out to be, and as despicable as Casey Anthony has shown herself to be, Orlando investigators have shown themselves to be unworthy of the motto “to serve and protect.” A couple of problems I have noticed.
First, the event that they staged when they rearrested her, allowing protestors and media to gather outside the families home, when her attorney had already offered to bring her in, was downright malicious. These cops wanted to be on prime time TV doing the “perp walk” with her. They are also apparently enjoying the media pressure that is being put on the family.
Now I could care less about what happens to Casey Anthony, because I am not her attorney and I believe she is guilty of something which led to the death of her child. But the rest of the family – at least her parents – are guilty of nothing. Their lives have been turned upside down. Could you imagine how horrible this must all be for them?
Secondly, these Orlando authorities are allowing protestors to stand on the sidewalk outside the Anthony house – and outside their neighbors’ homes – day and night. These protestors have shown themselves to be violent and disruptive. They are harassing and attacking her family, as well as the neighbors. These cops are maliciously allowing these protestors, and the media, to abuse her family. The purpose is clear: they want to put pressure on Casey Anthony to confess to everything she knows. Putting pressure on her is fine. But allowing her innocent family members to be attacked and abused is wrong. This reminds me of the tactics used by investigators that were exhibited in Gerry Spence’s “Smoking Gun,” where investigators charged the suspects’ young son with the murder that his mother was also charged with – the goal being to pressure the mother to relent and confess to save her son.
Not only are these Orlando cops abusing the family, but they are allowing the entire neighborhood to be abused. What possible justification is there for allowing disruptive protestors to remain in a residential subdivision? Is it not their job to keep the peace? Is it not their job to protect Caylee Anthony’s grandparents from wild-eyed, crazed protestors screaming at them and trying to pick fights with them? Does anyone deserve to suffer through this in their own driveway?
– John H. Bryan, West Virginia Attorney.
“Testilying” an everyday occurrence
Mark Bennett posted a few days ago about the “everyday incident” of cops committing perjury – or as they call it, “testilying.” He stated that:
Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)
I can’t tell you how many times I have cross-examined a cop in a suppression hearing or preliminary hearing, where something completely different comes out of his mouth than what he wrote in his police report. I think that what obviously happens is that the cops do whatever they want initially. They pull the person over on a “hunch,” or search the person or their premises illegally, without regards to mere rules or laws, then they put in their “report” a little white lie – that they received a tip from an undercover informant, or that the person drove erratically, or that the person consented to being searched. This, in their mind, validates the search, stop, or seizure if they found anything incriminating. Then, several months later, they get called to the witness stand, and they fail to review the report, but their memory is not totally in sync with their report.
Cops don’t fear prosecution for perjury because there is almost a 0% chance they will be prosecuted. The cops – or judges for that matter – could care less. The only, only, only situation in which there could be criminal liability imposed on a cop for perjury is if they are caught on tape or under oath, and if it is blatantly intentional. Only if the situation is such that a prosecutor of judge would fear for his or her own job if they fail to act. Otherwise, they will always be given the benefit of the doubt, if not just a shrug of the shoulders.
As a defense attorney, you know they are lying, but there is not much you can do about it other than to contest it and to create a record for your trial or your appeal. As Mark Bennett, said, “nobody ever got acquitted by pleading guilty.”
– John H. Bryan, West Virginia Attorney.
Cop “Overdoses” on Marijuana Brownies
Thanks to Bobby Frederick to finding this video and story, which I had not seen before, about a Michigan police officer who took some pot he confiscated, and baked brownies and ate them with his wife. Then they called 911 to report an overdose, despite the fact that it is impossible to overdose on marijuana.
Another Starbucks Stickup?
As I detailed in a previous post, Starbucks has the bad luck of getting shaken-down by crooked cops who enjoy the expensive drinks. Unbelievably, it has happened yet again, this time in Chicago. A Chicago police officer has been suspended and ordered into counseling after she was found guilty of demanding free coffee from six different stores on the North Side of Chicago.
Thanks to Scott Greenfield for finding this story.
You can read the full article here.
– John H. Bryan, West Virginia Attorney.
Is it a crime for a child to take a photo of a cop handcuffing her father?
Houston Criminal Defense Lawyer, Mark Bennett, posted yesterday regarding this story from Johnson County Tennessee, where Sheriff’s Deputies have been arresting people and confiscating iphones after pictures are taken of the cops in public.
This reminds me of a West Virginia case I am dealing with right now where a man videotaped the police shooting tear-gas grenades into his home. The police then broke down the door, shot the man with a taser, and attacked the man with their k-9. Then the guy was dragged off and thrown in jail. Guess what the charge was? Murder? Kidnapping? No, he was alleged to have made a harassing phone call. Guess what happened to the video and the video camera? The cops seized it with the consent of the prosecuting attorney – and it has yet to appear or to be provided to the defense. The problem is, that the 911 logs prove that the officers found it, and called the prosecutor requesting permission to seize it. Do you think they could be holding out until after the statute of limitations runs on a civil lawsuit? Or do you think they “misplaced” it somewhere in the evidence room?
So for those of you who think that law enforcement corruption in West Virginia is a conspiracy theory, please see the above paragraph. It exists. If any State or Federal investigators are at all interested in this case, please feel free to contact me and I will provide you with all of the particulars. But I won’t hold my breath with respect to the State, since they would be the ones getting sued. And I suspect the feds are too busy to worry about West Virginia. Like they say, “if you investigate one case, everyone else will want their case investigated as well…,” and that could take a while.
– John H. Bryan, West Virginia Attorney
Client Decisions, Prosecutors and Secrets
Mark Bennett has a great post from yesterday regarding the quick decision-making that takes place between a criminal defendant and his or her lawyer.
Much of the decision-making is centered around whether and when to reveal NLS’s – “nasty little suprises” – to the prosecutor. Bennett characterizes NLS’s as “a piece of evidence that I have that the State doesn’t have; it can be a fact that I know that the State doesn’t know; it can be something that the State doesn’t realize it should have done, but hasn’t; or it can even be a bit of law that the State isn’t aware of.”
A lawyer I used to work with was on his way to a felony jury trial, and was listening to a tape of an undercover drug buy that had been provided by the prosecution as a part of discovery. The day prior, the investigating officer had testified that he absolutely did not do something illegal (which the defendant had alleged he had done). This lawyer just happened to turn the tape over to side B while on his way to the courthouse, which was supposed to be blank. In the middle of side B, there was some audio. As he listened, he realized that the officer had committed the illegal act, and that unbeknownst to him, the microphone was on and recording. It seemed that likely the prosecutor and the officer were unaware that this was captured on the tape.
So upon arriving at the courthouse, he went to the prosecutor and said, if you want to continue with this trial, I have something that will end the career of this officer. He said, you only other choice is to immediately dismiss the case with prejudice. The prosecutor dismissed the case with prejudice. Did the prosecutor know about the missing audio on side B? Did he technically provide the exculpatory evidence all -the-while hoping it would not be discovered in the middle of side B? I don’t think so. If he or the officer knew about it and wanted it to remain unfound, they probably would just have erased it.
Anyways, it is interesting to see Bennett describe his mental process with regards to dealing with prosecutors – the good, the bad and the young. Much of what he describes I have observed in my own experience.
– 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.
You think the cops are bad in West Virginia?
In Daytona Beach, Florida, near my hometown, a police “lieutenant” (I still don’t understand why we give cops fake military rank) was accused of stating the following in response to being cut off from getting free coffee:
“If something happens, either we can respond really fast or we could respond really slow. I’ve been coming here for years and I’ve been getting whatever I want. I’m the difference between you getting a two-minute response time, if you needed a little help, or a 15 minutes response time.”
Then the cop offered to take a polygraph and he failed. Then he was fired. At least the department did the right thing by throwing this jerk under the bus.
You think the cops are bad, in West Virginia? You should see them in Florida. There are two cops for every person. All they do is harass people all day long. And talk about overpaid… The poor cops up here make peanuts. Down there, between the unions and the sky-high property taxes, the cops (and firemen) make over fifty thousand per year starting salary. For reference, many in rural West Virginia cops make under twenty thousand per year. As much as I complain about law enforcement in West Virginia, I still thank my lucky stars that we don’t have Florida’s storm-troopers.
You can read the article here.
– John H. Bryan, West Virginia Attorney.
Police Officers and Domestic Battery in West Virginia
From the Charleston Gazette this morning, there is an article about a Dunbar, West Virginia, police officer – George Ike Radar – who was charged with domestic battery for slapping his wife 20 times and pointing his finger into her chest.
Bravo to State Trooper E.B. McClung for arresting this jerk. But shame on the magistrate for letting him out on a $1,000 recognizance bond, which in my opinion is preferential treatment based on his status as a police officer.
The Dunbar police chief was quoted in the article as saying “everyone is innocent until proven guilty, and we need to get to the facts.” Since when do cops believe in the presumption of innocence? When one of them are charged themselves, that’s when…
Statistics (and personal observation) show that the wives of many law enforcement officers are the most battered and abused women in this country. Cops protect their own, and they know how to manipulate and abuse the system.
In fact, I was in court yesterday representing the wife of a law enforcement officer who, in preparation for filing a divorce, had his buddy law enforcement officer come over and arrest his wife for touching him in the chest. And you can be sure that she wasn’t given a $1,000 personal recognizance bond (which means they do not actually have to come up with any money). No, she was given a $2,500 cash bond, which means that she had to come up with cash or go to jail. And guess what? She was not allowed to retrieve any money or belongings from home, because (again, in preparation for his filing divorce) he immediately filed a domestic violence petition at the same time, which means that a protective order is placed into effect, and she cannot go home or see her kids.
You better believe that many cops actually are above the law, and they will not hesitate to lie or manufacture evidence to have their buddies arrest you. Then, guess what? The magistrates are also buddies with the cops, so you get a high cash bond and general unfairness in the courtroom. Then the prosecutors are also buddies with the cops and would rather put your case in front of the jury instead of pissing off the cops by dismissing the case.
Yesterday, the assistant prosecutor who appeared offered to dismiss the criminal charge if my client withdrew several motions and a hearing date in the former-couple’s divorce case! Is that not disgusting? Is that not a gross abuse of power? Is that not a violation of human rights?
When I called a spade a spade and told the assistant prosecutor that she should be ashamed of what she was doing, she said “how dare you… I have never… I have never… (blah, blah, blah).” That is actually the second time that a female prosecutor has said that to me. The first time it was said I probably deserved it, but not this time. I guess they take themselves a little more seriously than the male prosecutors. Or maybe they just refuse to sympathize with the female victims of their law enforcement buddies.
Can a cop in West Virginia really have his wife arrested and use the prosecutor to negotiate a better divorce settlement for him? Absolutely.
You can read the full article about the Dunbar officer here.
– John H. Bryan, West Virginia Attorney.
The Officially Jaded View of Criminal Defense
At lunch today, I was thinking about my previous post regarding the Charleston cops spotlighting deer, and it hit me. It all boils down to this:
Case in point: Cops have a suspect. Cops go to suspect’s house. Cops do not have a warrant. Cops illegally enter house. Cops look for evidence. Cops interrogate and get statement from suspect. Cops find what they are looking for. Suspect gets attorney. Attorney files a motion to suppress evidence found based on cops’ illegal behavior (warrantless entry of house). Cops lie and say on stand they were given “consent” to enter. Defendant/suspect says he/she absolutely 100% did not give consent to enter house. Defendant’s parents confirm his/her story. Defendant’s parent’s friend confirms the story. Cops cannot provide signed written consent form (yes, they exist). Judge denies motion to suppress, stating that defendant and witnesses have motive to lie, but that the cops have no reason to lie. Defendant takes plea agreement. Defendant goes to jail or on probation. The end. It happens day after day after day. And in the end, what judge cares if they know the person is guilty? Likewise, what do the cops care? If they fail to find evidence, then the apologize and go on their way. If they do find evidence, they show up in court and say the magic words: “consent,” and boom, the judge denies the motion to suppress. And no one cares but the poor sap who was convicted and the defense attorney banging his head against the wall.
Sometimes practicing criminal defense can be an exercise in futility. People think they have all of these constitutional rights… but, when it comes down to it, you only stand a chance if you can stand in front of a jury and, despite everything found by the police and prosecutors, convince them it would be an injustice to convict your client. Your only hope otherwise is to argue a constitutional technicality on appeal, and who wants to do that when they have some control over their destiny through taking a plea deal – especially in West Virginia where you don’t even have a right to an appeal, and even if you get there, the justices are elected through partisan elections (i.e., good luck Mr. Charged-With-Sex-Crime).
– John H. Bryan, West Virginia Attorney.
Two Charleston Cops Get Plea Deal For Spotlighting Deer
As I detailed in a previous post, which can be found here, two Charleston cops, who were off-duty, were caught spotlighting and shooting a deer on W.Va. 34 near Liberty. Did they admit to their crime, apologize and beg the public for forgiveness? No, or course not, the law only applies to citizens, not cops, right? They claim they were ending the suffering of a poor injured deer. Even if that were true, and even if cops are allowed to do this, would it be proper to do it at night with a spotlight? In West Virginia, there are farmhouses all over the place. How could you be sure you wouldn’t kill some innocent person?
These cops are obviously lying, and nobody seems to care. Okay, assuming they shot this deer as part of their official duty, did they radio the dispatcher as to what they were doing? Were they even in their jurisdiction? Everyone knows thats a bunch of garbage. They committed an illegal act, then they got preferential treatment. The DNR officer even stated that “it was difficult to investigate two law enforcement officers….” Why in the world would it be difficult. If I was a cop and I became aware of two crooked cops using their badge and gun to break the law, I would get great enjoyment out of busting them and taking them to task. Heck, they are slandering your profession with their reckless disregard for the law and their utter hypocrisy.
So these cops got a plea deal. They were allowed to plead no contest and were given fines. Apparently the conspiracy charges were dropped as well. The Charleston Police Chief is apparently struggling with what, if any, discipline these officers should suffer with respect to their jobs. Hello…. what about the fact that these cops are lying through their teeth while pleading no contest at the same time? How many poor saps have been convicted based on the testimony of these two cops? I say, let’s reopen all of those cases, because these two guys are liars. Despite this, nobody wants to face the fact that cops lie on the stand, under oath, every single day. Why? Who knows and who cares. They have a variety of reasons, not limited to covering up their own wrongdoings.
The fact is though, that these two cops are lying and it is obvious. The cover-up is worse than the original crime. So they spotlighted deer… in the grand scheme of things it is no big deal. Nobody is perfect, we have all done things that are illegal at one point in our lives. They should have apologized and asked for forgiveness.
These two are hypocrites and liars, period.
You can read the entire article here.
– John H. Bryan, West Virginia Attorney.
Police Chief Has Wife Arrested By Buddy Law Enforcement Officer
This is a story that I will detail in a later post if need be, but it rises to the situation where the public should be informed of this massive abuse of authority.
A southern West Virginia Chief of Police, who is a big guy and also a military veteran, had his little wife arrested by a buddy law enforcement officer for “domestic assault,” taken into physical custody, after which she was able to bond out with a $5,000 cash bond. For those of you who don’t know, $5,000 is the average bond for felonies in southern West Virginia.
This police chief then filed for divorce and refused to drop the frivolous criminal charge against her unless she agreed to his terms for the divorce. This story is continuing and may be updated based on future actions taken by the law enforcement officer.
– John H. Bryan, West Virginia Attorney.
Cop Retaliates Against DUI Lawyer’s Wife
A colleague forwarded this article to me about a cop in Arizona who pulled over and arrested a woman for DUI even though she had a 0.00 BAC. Why would he have done that? Apparently her husband is a DUI lawyer in Arizona who had recently won a high-profile DUI trial. Guess who was the arresting officer for that DUI? That’s right, it was the same cop who arrested the DUI lawyer’s wife.
This disgusting excuse for a law enforcement officer’s name is Bond Gonzalez.
You can read the full article here.
This is something that I continuously worry about. One day I am haranguing a cop on the stand and figuratively chasing them around the courtroom beating them with a stick, and the next day I am peering in my rear view mirror waiting to be pulled over – or worse.
In reality though, most cops have been very good to me outside the courtroom. In fact, I usually make it a policy to apologize to cops I cross-examine after the hearing takes place, and most of them tell me that they don’t mind at all and that they would want me to do the same for them if they were charged with a crime. A few cops have even called afterwards to talk about their own legal matters.
Cops Lie on the Stand? – Yes, Even in West Virginia…
From his Blog, Simple Justice, by New York criminal defense attorney Scott Greenfield posted about instances of federal judges in New York who made actual findings that certain cops had committed perjury before them.
Instead of publicly reprimanding them, the judges seemed more concerned with preventing damage to their careers. As Mr. Greenfield points out, “welcome to the real world of criminal law.” But why would cops risk losing their job and their pension to lock up any individual criminal? Mr. Greenfield replies, “tell it to all the people that cop’s put away before. Tell it to all the judges who defaulted into finding the cop credible, because he’s a cop, or the juries who bought into the prosecutor’s argument that “there’s no reason why the cop would lie…” There’s a very good reason; that’s just what they do. It’s their job. The courts are a big joke, and they say the magic words that put the bad guys in jail. No big deal, just another day’s work.”
Mr. Greenfield posits that “if there were ramifications for getting caught lying, such as jeopardizing a cop’s career (or more importantly, his pension), they would stop. No perp is worth losing a pension. But cops testily with impunity, and everyone in the system, except the criminal defense lawyer, is there to protect that cop from the consequences of committing the crime of perjury.”
And yes, it is no different in West Virginia.
Read the post 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.
John H. Bryan, Attorney at Law
Like David vs. Goliath, but with an M-60.
Email Me jhb@johnbryanlaw.com
“We may affirm absolutely that nothing great in the world has been accomplished without passion.” – Hegel.
WANTED TO BUY: antique firearms and related items, as well as Native American trade items and artifacts.
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