Arguing Before the Fourth Circuit Tomorrow
Getting ready to leave today to argue before the U.S. Court of Appeals for the Fourth Circuit.
Update:
Fourth Circuit Open Carry Decision
The Fourth Circuit issued a decision bolstering our 2nd Amendment rights. The case is styled USA v. Nathaniel Black, out of the Western District of North Carolina. Essentially, a guy who was a convicted felon was open carrying a firearm. He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm. But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?
The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity. The importance of this decision is that it protects our 2nd Amendment rights. If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc. The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).
Excessive Force Police Shooting Settled Before Trial
Literally, on the courthouse steps. Settled for $200,000.00, paid by the Morgan County Commission. Ulysses Everett v. Seth Place and the Morgan County Commission. U.S. District Court for the Northern District of West Virginia. Federal 1983 lawsuit for excessive force and unreasonable search and seizure. It’s a tough call to choose to settle a case when you are prepared to try it before a jury, but in this particular case they had a damn good defense lawyer.
Article in The West Virginia Record.
Article in The Journal.
West Liberty University Students Complain of Excessive Force by the Charleston PD
In the Charleston Gazette today, there is an article detailing excessive force complaints by West Liberty University students against the Charleston Police Department. First sentence of the article: the mayor is speaking out to the media, defending the officers and essentially denouncing the complaints as lies. The article contains numerous statements from the police, as well as the mayor, and has statements from numerous university officials and students who witnessed the incident.
The students and university officials have every right to voice their outrage about what happened. However, the mayor was wrong to make statements to the media, only a couple of days after the incident occurred, denouncing the complaints as lies. There obviously has been no legitimate internal investigation of the complaints, and certainly no independent or unbiased investigation. In my experience, when a mayor comes out and speaks to the media, they are worried.
Video: police beating of a pretrial detainee
Check this video out. It is wrong on so many levels. A pretrial detainee was attacked from behind, immediately put into a chokehold, and then beaten over the course of several minutes with a blackjack. He was also tasered. I don’t even know why the guy was in jail, but it doesn’t matter. The cops were fired for excessive force. Apparently a lawsuit is pending.
Excessive Force Lawsuit Filed Against Fayette County, WV Deputies
Media Reports:
CHARLESTON – Four Fayette County deputies are accused of beating up a disabled man and later dropping him off at his home without providing him any medical treatment.
Nicholas D. Hall, Robert V. Neal, James K. Sizemore and Dana C. Wysong are named as co-defendants in a five-count civil rights suit filed by Matthew Cole in U.S. District Court. In his complaint filed Dec. 13, Cole, 37 and an Ansted resident, alleges all four beat him without provocation when they responded to a domestic violence call to his cousin’s house two years ago, only to then have Wysong return him to his mother without either explaining his injuries or seeking treatment for them.
. . .
Sawyer v. Asbury defendants asking the 4th Circuit to stop the trial
I know that many people have been following this case, so here is an update. On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case. The new jury trial on damages is scheduled for next week. I was given until yesterday to respond. Unless the Fourth Circuit says otherwise we are having a trial on Tuesday. Here is our response:
(Yes I did this in two days, so please excuse any mistakes)
Judgment as a matter of law was just granted in Sawyer 1983 case
Unfortunately we lost at jury trial. But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor. There will be a new trial to determine damages. Yes!
Update: Link to newspaper article.
2nd Update: Gazette article by Zac Taylor. Some excerpts:
In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.
“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”
The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.
. . .
“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”
. . .
Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.
Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.
. . .During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.
“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.
TV News article.
The Order:
West Virginia Excessive Force Litigation Update: Sawyer Case
We are currently litigating the defendants’ motion for summary judgment in Sawyer v. Asbury, et al. Our response contains a fairly thorough walkthrough of excessive force law for most types of excessive force claims. Of course this is tailored to the 4th Circuit as much as possible. But the law is similar throughout all of the circuits.
Two of the exhibits:
Parkersburg Police Officer Charged with Battery
I’m not sure what the deal with Parkersburg is, but it is in the news again. Parkersburg Police Officer Josh Densel is charged with battery for hitting one Jerry Seabolt while being booked at the holding center. When I saw this headline, I said to myself, obviously it was videotaped. According to the News and Sentinel article it was indeed caught on video.
I wonder when we are going to hear from the Parkersburg mayor. I guess he isn’t grandstanding in the media this time because there are no lawyers involved as of yet who can be blamed. The allegation has been made that the Parkersburg Mayor encourages his officers to beat individuals. This may be a good case to further develop that allegation.
Parkersburg must be an odd place. I once talked to a man who was from that area about police beatings in Parkersburg. He was an older gentleman, very conservative, very successful in life. You would think that he would place a high priority on liberty. However, it was his opinion that the police should be free to beat anyone up whom they deem as a criminal. This just blows my mind. It may be something in the water up there.
Federal Lawsuit Against Parkersburg Police Settled
The Tim Mazza lawsuit, which was pending in the U.S. District Court in the Southern District of West Virginia, is now settled. In police lawsuit cases, the settlements are not necessarily confidential. This case was settled for $100,000.00. Another case involving two of the same officers was settled a couple months prior for $70,000.00.
Link to a news story on the Mazza settlement.
Link to a news story on the Ratliff settlement.
The funny thing in this case is that from day one, in the newspapers, the mayor and police chief blamed us lawyers and tort reform in general. They publicly announced that they would not be settling this case and that they would handle the matter in court. Of course this had to be addressed once the decision to settle was made. In the News and Sentinel article announcing the settlement, they blamed the decision to settle on their insurer.
If I could get an insurer to settle a frivolous case for 100 grand just to avoid the time and expense of litigation, I wouldn’t be so picky about which cases to accept.
Federal Lawsuit Filed Against Morgan County Sheriff’s Department and Deputy
We just filed this case in federal court against the Morgan County Commission (i.e., Morgan County Sheriff’s Department) and Deputy Seth Place for the 2010 shooting of my client, Ulysses Everett. He was shot twice through the front door of his home while unarmed. There is a video.
ETA: News article from The Journal newspaper.
Two more thoughts of the day: 1) Without video proof, police misconduct didn’t occur; 2) Sex offender registration mania is out of control
It blows my mind that this is on video, but it is. A scumball cop in Ohio abused his authority and violated the civil rights of an innocent citizen. He basically threatened to execute the guy, etc. Of course the poor guy is then prosecuted for “failure to notify” that he had a concealed weapon permit and was carrying. I heard through the grapevine that in the criminal prosecution which ensued (of the victim of course – not the cop) the prosecutor offered to dismiss the charges if the victim/defendant signed a release of liability foreclosing any possibility of a lawsuit over civil rights violations. If this is true (and I have no proof that it is), the prosecutor should be prosecuted for attempting to cover up a crime. I just found this statement from the police chief in that jurisdiction:
I want to assure our citizens that the behavior, as demonstrated in this video, is wholly unacceptable and in complete contradiction to the professional standards we demand of our officers. As such, appropriate steps were placed in motion as dictated by our standards, policies and contractual obligations. Those steps included: The officer immediately being relieved of all duty. The incident has been referred to the Internal Affairs Bureau for what will be a complete and thorough investigation. As bad as the video indicates our officer’s actions were, there is a due process procedure to follow. That process is designed in the best interest of both our employees and the citizens at large. That process will be followed in this case as in all others. Anyone shown to be in violation of our rules and regulations will be help appropriately responsible as dictated by all the facts. ~Chief Dean McKimm
The 800 pound gorilla in the room is this: if the video did not exist, nobody would believe the victim. And it blows my mind that the video was recovered. By the way, if you watch the video, take note of the illegal search of the backseat of the car which happens almost immediately after the stop. This sort of garbage happens all the time. After the fact the cops will claim to have received consent to search the vehicle. There was no consent, and there was no probable cause to search.
Secondly, there is a story out today about 14 year old boys being required to register as sex offenders due to a high school prank. It’s time to tell the whining hippy women and the “new-castrati” that enough is enough with this sex offender garbage. Of course it has its place with real sex offenders. But this has gotten out of control. I’m tired of seeing this ruin the lives of good young people. The sex offender laws are too broad. Then once we label good people as “sex offenders”, it ruins their lives. Not only this, but it waters down the real purpose of having registered sex offenders. So what’s the point?
If you were wondering what the law is in West Virginia, it is basically this: if there is any conviction of an individual and the presiding judge makes a finding that the offense was “sexually motivated” in any way, that person then becomes a registered sex offender. It doesn’t have to be an actual sex offense charge.
Thoughts from the news: Casey Anthony and NC Troopers
Yes, once again it has been sometime since I have posted. I just don’t have the time that I used to to comment on various things. That being said, there are a few different things which have popped up in the news that I just can’t resist.
1. Casey Anthony. Good for her attorney calling out all of the talking head lawyers who gave their b.s. opinions on the case throughout the last several years, and especially during the last few days of the trial. He also gave the media “the bird”. I was really getting aggravated with all of the “former prosecutor”[s] running their mouth on every cable channel about how she was going to be convicted of first degree murder and about how good the prosecutors were. They are pretty much all the same. They are mostly blonde (sometimes brunette) females. Almost none of them could be considered unattractive or overweight. They have loud, big, mouths and holier-than-thou attitudes – especially if other females/children are somehow involved in the subject on which they are running their mouths. Fox News / CNN have determined that they are qualified to bestow their opinions onto us due to their looks, and due to the fact that they used to be a “prosecutor.” Then there is Nancy Grace. She is the queen of the former prosecutors. She actually does have experience. She is a defendant’s worst nightmare: a bitter loud-mouthed prosecutor who is willing to do unethical things in order to win.
It was courageous for these 12 jurors to acquit Casey Anthony despite the all-knowing public and media having already deemed her guilty. How dare politicians/pundits condemn the jurors for their decision. I have said it before and I will say it again: it is the “law and order” people in our midst who will be our ruination. They are obsessed with their own personal safety. The same people who claim to stand for smaller government and more individual freedom are often the first ones to condemn jurors for upholding our constitution. The reason is because they are cowards: they are afraid for their own safety and so they worship law enforcement. They are also playing politics and know that the majority of voters / people who watch the news are older citizens, who are also obsessed with their own safety. We need less laws, not more.
I could care less about Casey Anthony. I believe she was involved in her daughter’s death. However, it was very satisfying to see the prosecutor, Linda Drane Burdick, who was so pompous, arrogant and self righteous in her demeanor be brought so low by the loss of the century.
2. The North Carolina troopers who arrested the trial lawyer’s wife. Being a Tarheel, I have been watching what has been going on with the NC troopers and the trial lawyer’s wife. Again, it is sickening that politicians and supposed proponents of freedom and smaller government support police-state behavior. Even though NC, like VA, is a conservative state politically and socially, it is a police-state when it comes to law enforcement. For some crazy reason, conservative voters support massive government when it comes to Criminal Law – including its creation, enforcement and prosecution. Again, I believe they are either older people obsessed with their safety, or they are cowards (they place fear of personal safety over our country’s liberty), or they are obsessed with being politically correct (it is generally politically popular, especially where there are senior citizen voters, to be “tough on crime”.
Anyways, this trooper pulls over a relatively attractive woman driving a Lexus SUV. Big surprise. I have discussed before the intense security threat posed by attractive women driving expensive SUVs. The trooper, who of course sports the obligatory military-esque hairdo, asks the woman if she was drinking. She had a sip of wine at some banquet she was driving home from. The trooper then makes her get out of the car and asks her to blow in the portable BAC device. She refuses and instead opts to be taken to the real breathalyzer machine (they used to use “intoxalyzer 5000′s” in NC). In NC, you are entitled to call a witness for the test and the witness has 30 minutes to get there. Naturally she calls her lawyer husband. The husband shows up and she blows two 0.00′s. Obviously she is not intoxicated. There was no other evidence of intoxication.
North Carolina is a DWI state (or at least it used to be when I prosecuted DWI’s there), meaning that you couldn’t convict somebody of DWI based on the BAC alone. The officer would have to testify to erratic driving and/or the person failing field sobriety tests. You are legally allowed to be above the BAC of 0.08 if it was not proven that you were in fact intoxicated. At this point, since the lawyer husband is present and is angry at the kidnapping of his wife, the trooper refuses to release the woman, and instead is arrests her and keeps her in handcuffs.
So in essence, a private American citizen was taken in handcuffs out of her car and incarcerated/kidnapped. But that’s okay right? According to a local magistrate, and according to the cops, that is just standard procedure. He was just following procedure. These people ought to be run off of the taxpayer payrolls. How dare they tell the citizens that it is their procedure to arrest somebody with no probable cause and hold them against their will. Impeachment is also a procedure. Maybe the magistrate, and the storm trooper, should be prosecuted for kidnapping and battery. We can follow procedure to the letter.
The storm trooper then allows the woman’s husband to follow him to the magistrate’s office so that she could be arraigned and post bond, etc. While following the storm trooper the husband gets pulled over by another storm trooper – for speeding (despite the fact that he was following another trooper). The troopers report stated that he did not have any communication with the other trooper and that there was no set-up involved. First of all, anyone who would believe that is a complete fool. And anyone who would deny that it was a set-up is a complete liar. Since then, text messages have been released from between the officers which show that there was communication. Not only that, but the officers were discussing the lawyer and his wife and saying things like “f**k him” and “f**k her”. The second trooper, who pulled over the husband, sent the following text message to his trooper buddy, who was transporting the wife:
Trooper Smith then wrote at 12:31 a.m.: “TELL HIM IF HE WANTS TO COP AN ATTITUDE TO FEEL FREE AND COME BACK AND ILL S—– HIM THAT SPEED.”
How dare these troopers use their sacred position of trust to violate the liberties of law-abiding citizens of this country. Nevertheless, ignorant kool-aid drinker NC state senator Thom Goolsby decided to run his mouth in the media and support the troopers. These are the dangerous ones. The politicians who are so worried about keeping their political jobs that they are willing to throw innocent citizens under the bus. This guy is willing to allow troopers to kidnap citizens under color of law just to spite a trial lawyer and his wife. He needs to be run out of office.
Not only should these delta-force wannabes be fired, they should be criminally prosecuted for kidnapping and battery. If they are allowed to keep their jobs, it is telling every other crooked cop out there that it is okay to abuse their position of trust in order to spite somebody.
West Virginia police oversight bill
There is currently a police oversight bill heading through the West Virginia State Senate, set for its second reading in the senate on Monday. The Charleston Gazette published an article confirming that both the West Virginia Troopers’ Association and the West Virginia Sheriffs’ Association are backing the bill. It essentially provides that:
The revised bill requires officers who move from one department to another to sign a waiver allowing the subcommittee to review their personnel file with that previous department before reauthorizing their police officer certification. It also requires the subcommittee to keep the database of all certified officers, which would be available to all departments.
Both versions of the bill give the Law Enforcement Professional Standards Subcommittee — formerly known as the Law Enforcement Training Subcommittee — subpoena powers to investigate problem officers that come to their attention.
See Charleston Gazette article. I think this would be a great tool to help weed out the bad officers. We all know who the municipalities are who attract bad officers. These municipalities complaint that it costs too much to send a new officer for the proper training and certification. Its easier to just hire an officer who was fired elsewhere and who is willing to work for minimal pay. ’Tis better to have no officers at all than to have untrustworthy ones. Period.
The Federal Officer Removal Statute 28 U.S.C. 1442(a)(1)
Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
Charleston Gazette v. WVSP
The Charleston Gazette filed a FOIA lawsuit against the West Virginia State Police yesterday in Kanawha County Circuit Court, seeking disciplinary information and records. They also published a story detailing the lawsuit, which contained a shocking paragraph (at least to me):
According to the six-page public report produced by the professional standards section in 2009, 13 troopers were dismissed that year based on sustained allegations, up from 3 the previous year. An additional 19 resigned prior to discipline. There were a total of 112 incidents where action was taken in 2009, according to the report.
Wow. 32 troopers kicked to the curb in one year? That is bad. And 19 resigned prior to discipline. That means that they are now working at a municipal or county law enforcement agency, and that the unwitting citizens of that jurisdiction have no idea of what misconduct their new officer had previously been constructively terminated for. It’s not easy to get fired as a law enforcement officer. For instance, look at the Travis Barker case, which was cited in the Gazette article today. We sued him for allegedly arresting the guy who he thought was having an affair with his wife, for a charge that was not illegal, and then beating him while handcuffed to the floor with no other troopers or witnesses present. And this is not the first accusation against him. Yet he still has the authority, as far as I know, to pull people over and shoot them if necessary.
So these 32 individuals must have really misbehaved.
Reporter Gary Harki provided more information on the Gazette’s blog, Sustained Outrage, about the lawsuit and about allegations against the WVSP. It also includes a copy of the lawsuit filed yesterday. Harki also provides links to some recent stories detailing the WVSP’s recent issues with disclosure:
These three stories from July do a good job of telling the other recent accusations:
W.Va. State Police stay mum on inquiries
And if this is the WVSP, imagine the statistics on county and municipal departments.
Federal lawsuit against Wood County Sheriff’s Department in the news
In the Charleston Gazette this morning is an article on a federal lawsuit I filed yesterday on behalf of Brian Sawyer, replete with a video of his beating at the hands of a Wood County, WV deputy. This is an excessive force case which is currently the subject of an FBI investigation, as the article confirms.
This incident would have coasted under the radar if it were not for Sgt. Dave Westfall of the Wood County Sheriff’s Department, who blew the whistle on what happened, and saved the surveillance video of the beating, providing it to the FBI after his superior allegedly told him to not throw his fellow deputy “under the bus.” Westfall is a veteran of the U.S. Special Forces, with a distinguished career as a law enforcement officer. He is also a certified self defense instructor and use of force instructor. It goes to show that real men do not need to use their badge to beat people up. Real men use restraint and act with a clear head. Real men do what is right and would never cover up a civil rights violation just because he can.
Unfortunately, now Sgt. Westfall is defending himself against the Wood County Sheriff’s Department. He alleges that he was caught by his superiors showing this video to two FBI agents secretly at a Cracker Barrel restaurant, and now they are seeking to discipline him for unrelated allegations. And we wonder why other officers do not come forward to report misconduct . . . . Their choice is to have a long, quiet career with no bumps in the road by staying quiet, or to do what is right and face persecution.
Now we all need to stand behind Sgt. Westfall and keep him from getting thrown under the bus for having integrity.
This is a good lesson on what the proper role of the federal government is. I was watching the Maynard / Rahall debate last night, and there was a lot of discussion on the proper role of the federal government. There are a couple of things that we do need the federal government for: raising, maintaining, and operating a military; and stepping in to local situations where there is questionable accountability and integrity within state or local government. Thank God we live in a country where we can go to the FBI if we believe that there has been a coverup or conspiracy among law enforcement at the state or local level. Otherwise, what could we do?
UPDATE: (10/28/10)
Other Media Links for this case:
WTAP video (Note: during the video the anchor says something about Sawyer pleading guilty to assault on an officer, and at the exact time she says that you see Sawyer in the background being choked and held up off his feet. Obviously a vicious assault against that officer. Of course when he took the plea offer, he would have had no idea about the video, and without a video it’s like talking to a brick wall when you tell people you were beaten up. That’s the usual way things work. You get beaten up, and they charge you with assault. Then they give you a good deal on the jail sentence if you just plead to assaulting an officer.)
Statement released by Sheriff Jeff Sandy:
“On October 26th, 2010, a federal law suit was filed concerning alleged “excessive force” violations being committed by a former employee of the Wood County Sheriff’s Office. I assure the public that the Wood County Sheriff’s Office will continue to cooperate fully. As Sheriff of Wood County, I am responsible for all events that have occurred at the Wood County Sheriff’s Office since taking office. Under my watch the Sheriff’s office has not and will not tolerate illegal and unethical behavior by any employee that has taken the oath of office. The Wood County Sheriff’s Office has some great public servants, and this alleged incident should not reflect upon the entire organization. In ending, as Sheriff, I welcome any and all investigations by federal and state investigators, because after their investigation is completed it will show an unbiased detail of the events.”
Note: probably not coincidentally, I also have another case currently pending in federal court for a police beating which occurred in Parkersburg – Tim Mazza. At least this time officials have not been blaming me or tort reform….
Tyrannical prosecutors protecting tyrannical cops
When you cross a police officer, in many West Virginia counties, you also cross one or more “badge bunny” prosecutors. I have found that the difference between a good prosector and a bad one is their backbone and their integrity. Confident, knowledgeable, experienced and honest prosecutors are independent. They do what is right. They know what is right – and what is wrong. Others lack confidence, as well as the backbone to be independent from law enforcement.
As you venture between various counties in West Virginia, you will encounter prosecutors of both types. I have encountered the badge bunny prosecutor derangement syndrome in one particular West Virginia county several times now. In these badge bunny jurisdictions, even the magistrates are not immune from infection. In fact, some are former police officers themselves. Unfortunately, almost none are former lawyers. Hell, who needs legal training when deciding bothersome legal issues, such as one’s freedom? Magistrates are almost always infected where there is an outbreak among prosecutors. If a prosecutor or a cop says the sky is purple, then the sky is purple. Defendants and defense attorneys are scum – even if they are not scum. They are worthless bastards.
If you want to experience injustice, piss off a cop in one of these counties. For instance, you could have an affair with his wife. He may be of the sort to arrest you illegally and beat you down when no one is looking, and while you are handcuffed. A badge bunny prosecutor would proceed to prosecute you. You could show him evidence that you were illegally arrested, and that you were illegally beaten. The evidence could be indisputable. But your barking up the wrong tree. Unlike the good prosecutors, justice is not his concern, getting convictions is. Protecting “his” or “her” law enforcement officers is priority numero uno.
So you then could file some civil lawsuits. Then you have really made it personal to the prosecutor. Justice gets thrown to the wayside altogether, and you now have crosshairs on your back. Your only way out is through a trial.
Now compare this to the often-seen scenario when a police officer violates the law. He gets a sweetheart deal and fades from the spotlight conviction-free. If it doesn’t piss you off now that this injustice and tyranny exists in West Virginia, then just wait until it happens to you. Good people get wrongfully arrested in West Virginia. Then you will need a lawyer who has the guts to stand up to these scoundrels and fight them on their home field. Choose carefully.
West Virginia State Police lawsuit in the news
There was an article this morning the Charleston Gazette on the lawsuit against the West Virginia State Police on behalf of Travis Barker, entitled, “FBI investigating trooper accused in beating“.
As usual, there were some comments by the WVSP included as their response to the reporter’s inquiries. However, I was surprised to see that for once there were no potshots taken at me or any other lawyer. They did not call for tort reform this time. I wonder why this is? Could it be that this time there is an independent agency conducting an investigation (the FBI)? After all, they would look pretty bad if they discounted the lawsuit’s allegations and the FBI ends up finding merit in them.
To be fair, the main incident I am referring to is the comments from the Mayor and Police Chief in Parkersburg from the Mazza case, which of course does not involve the state police. And usually the WVSP are more professional than that. But, it was only a week ago that they publicly decried attorney Mike Clifford for releasing information to the media in the Snavely case, all-the-while ignoring the fact that the WVSP had apparently been caught in a cover-up.
I still don’t see how it helps the WVSP to engage in secrecy and suppression of trooper misconduct. You would think that public confidence would be instilled through the purging of troopers who can’t follow the rules. Maybe this is something that we can change if we yell loudly enough. After all, we are citizens and taxpayers, and the state police is our state agency. It represents us, and at least theoretically, is funded by us. Let’s resolve to engage not in tort reform, but reform of the WVSP. We need public disclosure and accountability.
Again, I will say, that I support the military; I support law and order; I support law enforcement. I understand that 95% of law enforcement out there are good people who place public trust and integrity foremost in their actions as officers, and who would willingly sacrifice themselves to save another. I am okay with “cowboyism” where necessary, i.e., in Compton, CA, or some like place. I understand that it is necessary in places which are akin to war zones. But for the most part, in West Virginia, which is the primary area I am concerned about, and the only area in which I have any power to seek justice, I don’t want it to happen – especially against someone who did not commit a crime. And if it does happen, the WVSP knows, and counties and municipalities know, that myself, and other lawyers, who also take an oath to uphold the U.S. and West Virginia Constitutions, will be watching.
- John H. Bryan.
Prosecuted in retaliation for videotaping police misconduct
ABC News ran a story on the growing number of prosecutions for private citizens videotaping police misconduct. The main story highlighted in the article was a guy who had a helmet mounted video camera, which taped a plain-clothes police officer swerving in front of the motorcyclist, slamming on his brakes, and jumping out with his gun in hand.
Was the officer disciplined for this act of cowboyism? I don’t think so. Instead the motorcyclist is being prosecuted for videotaping the officer without his consent. The state police in Maryland actually busted into the guy’s house, searched it, and confiscated his computer and hard drive, and then indicted him for a felony violation of Maryland’s wiretapping laws.
Okay, arrest the guy for reckless driving. I don’t have any problem with that. But give me a break. This is a bunch of garbage. Our only means of protecting ourselves from cowboy cops is the video camera. Almost every police prosecution that you see was forced due to the cop’s actions being caught on tape. The cops know this, and they try their best to keep citizens from filming them. The newspapers are full of people being arrested for “obstruction” or whatever, for filming cops.
The motorcyclist had a camera on his helmet. He didn’t know that this cowboy was going to jump out at him waving his gun. I am assuming cops in Maryland have dash mounted video cameras (although I am sure they are not on when it suits them not to be on). Does that mean that every cop in Maryland with a dash cam is guilty of felony violations of Maryland wiretapping laws? Don’t hold your breath for those prosecutions.
Obviously there is a double standard out there. And people are getting tired of it. I had a client who videotaped police shooting tear gas through his windows and them busting in with gas masks, AR-15,s and taser guns, then tasing him, and probably ended with them dragging him out of the picture. What happened to the video? It was confiscated by the police and never returned. When I was finally able to see it, it conveniently “ended” before the gas grenades were shot into the house.
Gestapo tactics. The ironic thing is, you see this sort of stuff from cops in suburbia, or other areas where there is very little real crime. Just ask a real cop who has worked in the trenches – NYPD, LAPD, Charlotte PD, Atlanta PD, who deal with all sorts of crap and scumbags – they rarely engage in cowboyism, they have enough to worry about.
WVSP feeling the heat, and deservedly so.
The latest of Charleston Gazette reporter Gary Harki’s article critical of the WVSP is, to me anyways, an absolute bombshell – though not surprising in the least. Usually in the media you find brown-nosed reporting with regards to law enforcement, usually which talks about all the criminals who were arrested and/or charged. Harki has had the gusto to take on the West Virginia State Police in a big way.
The article deals with former-Trooper-now-Hinton-Police-Chief-Snavely, who I have discussed before. I wasn’t surprised when I found out that prosecutors were not charging Snavely with a crime. But I was surprised to see Harki’s article titled, “prosecutor not told ex-trooper falsified log“. Apparently the WVSP “investigation” into Snavely uncovered the fact that Snavely falsified his duty log for the evening when he was accused of his wrongdoing. However, they apparently chose to leave that tidbit out of the investigation report which went to the prosecutor. So Harki finds out about this from attorney Mike Clifford. Harki then goes to the prosecutor who made the call. And he is apparently pissed, and rightfully so – since it was published as being his decision not to prosecute Snavely. And of course, as usual, the WVSP is angry at the attorney – at Clifford! It was his fault – he shouldn’t have told Harki.
We have a culture of secrecy in the WVSP. Even though for the most part they are good and law abiding officers, the top brass have have made some decisions which undermine the public’s trust and confidence in their integrity. If you have a public official who has done something wrong, the public needs to know about it, and the public wants to know about it. If covered up, the public gets pissed. And the coverup is always worse than the crime. If they would just throw the bad officers under the bus where they belong, from the very beginning, the WVSP would come out smelling like a rose. It would reinforce our confidence in law enforcement.
Instead we have the awful situation where an innocent citizen can have his civil rights violated by some cowboy cop, and there’s nothing the person can do about it. What can they do? Call the police? Yeah right. Call the West Virginia State Police? Yeah right. Call the Governor? You just get a form letter in return. Call your congressman? You just get a form letter. Call the FBI? Do you have any idea how many complaints they probably get? Without something more to lend legitimacy to your complaint, there is about a 99% chance they will do nothing about it. The only thing you can do is get a civil lawyer on your side. Someone who has the guts to sue the WVSP, and to put up with the WVSP verbally accosting them in every newspaper article rather than commenting on their troopers’ misconduct.
West Virginia State Police Lawsuit
Here is a copy of a lawsuit which was filed friday against the West Virginia State Police, this time on behalf of a law enforcement officer. Of course everything is my fault as the attorney. Damn scumbug lawyers…. There was an interesting article in the Charleston Gazette this past Sunday on all the problems they are having at the WVSP. Out of one mouth they are saying that they pretty much only settle cases for “financial” reasons. Then out of the other side of their mouth they are bragging that they haven’t had to pay out anything to the plaintiffs who sued them in Logan County, even though they have spent almost one hundred grand in legal fees fighting them. If you are settling for financial reasons, then why didn’t you settle the Logan County cases before spending six figures defending them? We are reaching a crisis point in West Virginia with respect to our law enforcement. We have rampant allegations of misconduct, and the leadership actively suppresses it and stays “mum” towards the public. In the rare situation where they agree there has been misconduct, they allow the officer to resign and go elsewhere to some other unsuspecting community. We taxpayers and citizens are told nothing. They should proudly weed out the bad apples among their ranks. The fact that they don’t makes us mistrust them. Lawyers don’t want bad lawyers around. Doctors don’t want bad doctors around. Airline pilots don’t want bad airline pilots around. You only find this phenomonen of absolute non-accountability and “professional courtesy” in the realm of government employees – most notably in law enforcement. Then they blame the lawyers. If there were no lawyers with the courage to take on law enforcement, then people would really be helpless. I bet they would like to get rid of us. Tort reform? Their officers already have dozens of different kinds of immunity, which you can only get past with legitimate allegations and convincing proof. What else do they want? Maybe they should admit they have a problem, then they could take the next step of solving it.
Parkersburg Police Lawsuit
As I mentioned in the previous post, we filed a lawsuit against the city of Parkersburg, West Virginia, for the alleged sexual orientation hate crime beating of our client, Timothy Mazza. There is a good article in the Charleston Gazette – actually the Sunday Gazette Mail, as it is called on Sundays – top of the fold on the front page. It features a color picture of Mr. Mazza displaying the large black and blue side of his abdomen where his rib was fractured. The reason I say it is a good article is because the reporter, Gary Harki, conducted his own investigation into the case. He interviewed witnesses and examined evidence. Other reporters would have just regurgitated the lawsuit.
An interesting thing about the article is that the mayor and the police chief of the town are quoted several times in reference to the case:
Parkersburg Mayor Bob Newell and Police Chief Joe Martin dispute Mazza’s claims. Newell said that if what Mazza claims is true, he should have talked to police – not to a lawyer and the news media. . . .
The mayor blames the lawsuit on what he says is West Virginia’s need for tort reform.
“It is very aggravating that it is being handled this way,” Newell said. “I’ve dealt with attorneys a lot, and they are trying to get cases settled through public pressure.” . . .
Martin and Newell said they will ask their insurance carriers to allow the case to go to court, rather than settle.
Martin, who became chief after the incident, said they never received a formal complaint or even a phone call about the incident before being served with the lawsuit.
“We will let it work itself out through the legal process,” he said. “He can say whatever he wants to say. We’re not as free to speak as they would be.”
So let me get this straight. If the police trespass on your property, beat you up, fracture your rib, refuse to take you to the hospital, keep you in jail overnight, and call you gay slurs while doing so, you should go to them for help? Let me tell you something. I have people who call my office or email me everyday with similar experiences, and there is absolutely no one willing to help them. Making a formal complaint is laughable. The only complaint they take seriously is one filed in a courthouse. Why would you go to them for help while they are trying to prosecute you. They never voluntarily dropped the charges against Mazza. It took a criminal defense attorney going to the court to cross examine the officers in order to point out the civil rights violations which occurred. It was the court that dismissed the charges. The prosecutors/cops were all-the-while trying to get Mazza to agree to a plea involving 30 days in jail. It is outrageous to claim that instead of going to lawyers he should have gone to the police.
In reality, Mazza comes from a long line of law enforcement officers. His father was a police chief. He has great respect for law enforcement. After this happened, phone calls were made, and they were ignored. The police chief would not return a phone call from, or communicate with, Tim’s police chief father about what happened to Tim – nor would they even provide Tim or his father with the officers’ names. It took lawyers to take action. And American citizens have every right to go to the media, as we are guaranteed the ability to do under the First Amendment of the US Constitution (regardless of whether the Parkersburg mayor and police chief agree with that document).
Busy with high-profile civil cases…. (and a new daughter)
It’s been a while since I last posted. There is a good reason for that. The reason is that unfortunately, my primary profession is the practice of law rather than writing. I have been busier than ever before in the last month or so. For one I had a healthy baby daughter two weeks ago, and she surprisingly loves to sleep through the night, so she is so far no trouble at all (I know, knock on wood). Additionally, I have been working on a number of high profile cases, some of which you may be reading about in the media in upcoming days.
One of my cases is already in the news, and unfortunately for my ego I suppose, the only way you would know that I was involved in it would be to read the Complaint, or to read this, since the media has thusfar deprived me of any credit whatsoever. Anyways, myself and attorney Michael Clifford of Charleston (see Leavitt case), filed a lawsuit against the Parkersburg Police Department, as well as the individual officers involved, last week in federal court. This is a 1983 action for wrongful arrest, excessive force, etc.
There will be a better and more detailed article coming out on this case, after which I will post a link to it here. The facts are egregious, and involve the new classification of homophobic crimes as hate crimes. For now, here is the original story from the Parkersburg News and Sentinel, which interestingly multiplied automatically when it was picked up by the AP.
If anyone else knows someone, or has themselves been arrested,harassed or discriminated against by the Parkersburg Police Department due to their sexual orientation, please let me know, preferably as soon as possible.
As I said, this is not the only high profile case I have been working on. There is going to be another police liability case filed here in the next week or so, this time in Southern West Virginia, and there is an additional case involving white collar fraud I have been spending most of my available time on which is extremely interesting and which I will detail when the time is right. So don’t hold it against me if I cannot find time to post as often as I used to.
- John H. Bryan, West Virginia Attorney.
And you wonder why I do what I do….
You would want my job too if you grew up in Melbourne, Florida. Take a look at this photo I took in my hometown of Melbourne, Florida. I have said before: you West Virginians don’t know how good you have it as far as law enforcement goes. Since most taxpayer money goes to the school system, law enforcement is forced to live within it’s means.
That is not the case in Florida. There are more cops that you can shake a stick at. And I’m not talking about high-crime areas. They are literally all over the place. Many of them shave their heads and act like they are some elite military unit. They pull over some poor lady for speeding on a four lane highway, in a spot where the speed limit is intentionally lowered to an ungodly speed by whatever corrupt municipality the highway runs through, because it makes them money. And politicians like money. Because they get to give it out, which gives them power – and probably some sort of kickback somewhere along the line. Go down US 1 in Florida (where this photo was taken), and you will see this scene repeated over and over again. The last time I was in Florida, I saw a black Escalade with a blonde lady sitting in the driver’s seat, pulled over on the side of the road. There were 6 cop cars parked behind her with their lights on.
Anyways, this photo shows three cop cars with some poor lady pulled over. The “cruisers” are all brand new. Again, no attempt whatsoever to live within their means. There are so many cops that they have nothing better to do than to gang up on citizens accused of speeding. It takes three of them (and there may even be more than one cop to each car) to respond to this lady pulled over on the side of the road, as if she is on the FBI’s ten most wanted list. Give me a break. What a waste of money. And of course each cop is making at least 50k plus benefits, as compared to the mere pittance paid in West Virginia. Why is this so? Unions. Most government employees are unionized. The taxpayers are the one’s who get shafted when unions get their way. And in Florida, as soon as one of these cops gets some sort of a cough or chronic sneeze, the taxpayers have to pay for them for the rest of their lives. It’s this way with the firefighters too. In Florida, they are all full-time. It’s a career. It’s an enormous burden on the taxpayers. This is why property taxes are so high there. And the two groups look out for one another. That’s why you’ll see those little fire department stickers on back windows of cars. Cops will terrorize the public, but they won’t pull over their firefighter buddies for anything.
The funny thing is, this is in Brevard County, Florida – one of the most conservative, Republican counties in the country (mostly because of the retired military in the area). Do conservative values equal rampant unionization? No, of course not. But people, conservatives included, are afraid to ever even think about denying the police unions what they are asking for, because then they are labeled “soft on crime.” This is extortion. Just like the way the police unions extort you into donating money to them in exchange for the “please don’t give me a ticket, I donated money to your union stickers” that you can put on the back window of your car. More people should have the guts to say so. But then again, I don’t have to worry about them pulling me over. I am a little bit outside their jurisdiction.
If you grow up in a place like this, you grow up believing that the police are not there to help you. They are there to terrorize and harass you. All it takes is one or two times of getting pulled over and being talked down-to by some punk with an AA in criminal justice, a burr haircut, and an authoritative attitude, to make you want to make a career out of criminal defense and/or pursuing civil rights claims on behalf on wronged individuals. People should be treated with respect, not like criminals. I never was treated with respect. Maybe, for that reason, I have an unhealthy grudge. But unhealthy or not, it gets me all ‘riled up every time I hear a new story of injustice, and provides the passion I need to do a good job of representing people.
On the other hand, our law enforcement in West Virginia are generally hard-working and under-paid. I suppose that this is why I like living here.
- John H. Bryan, West Virginia Attorney.
Law enforcement is [apparently] not a profession – Part 2
In the news today – college kid in federal court on trial for hacking into Sarah Palin’s email account – facing 50 years in the federal penitentiary. Meanwhile, in West Virginia….
(can you see where this is going?)
Police officer, while on duty and using official resources, hacks into his ex-wife’s personal email account in the same exact way, downloads the emails and attempts to use them as evidence in a child custody proceeding, and then admits to doing so. Federal indictment? Facing 50 years in federal prison? Fired? Nope, none of the above.
Could a lawyer do that? No, he would get in big trouble. But it’s pretty darn hard to get in trouble if you are a county or city police officer in West Virginia, especially the Ohio County Sheriff’s Department (Wheeling, West Virginia).
Here myself and another lawyer, Thomas E. White, from Moundsville, West Virginia, have teamed up to help give justice to a former law enforcement spouse who alleges that she suffered, and continues to suffer, due to her ex-husband’s position as a police officer, and to attempt to do the county’s job (for them) of providing discipline and accountability to the Sheriff’s Department there.
Enough is enough.
A tragic death occurred in Georgia. A bunch of cowboy cops were investigating an alleged $50.00 crack deal. They followed the person whom they thought was their target suspect. They were driving a black Cadillac Escalade. They were “undercover” and in “plain” clothes. They were wearing ski masks. They followed the man to an ATM where he proceeded to draw out money. They jumped out of their Escalade pointing their guns towards him. The man believed he was being robbed. He fled, slightly brushing his vehicle against one of the “officers” in the process. One of the “officers” shot him in the stomach. He drove about 1000 ft down the road and crashed. He died in the hospital as his family stood by his side. His dying words were that he thought he was being robbed. He was not a drug dealer, but a church pastor.
The cop who shot him, was not even qualified in the use of any handgun, and not technically certified as a police officer. It was also subsequently revealed that only months earlier, the same cop had shot another person who was not even accused of committing a crime. Did his superiors suspend him? No, they gave him a ski mask and a gun, and put him in a position to shoot someone over an alleged $50.00 crack deal. And the “authorities”, in their boundless integrity, tried to initially claim that the pastor was a drug suspect, though this was later retracted.
For more information take a look at the article by Rodney Balko.
At what point will we have had enough. This is not a left wing issue. This should be an issue for all political parties. People know that I am a member of the NRA. I am a gun guy. I treasure the 2nd amendment. I treasure the U.S. I treasure our history, and the ideals of our founding fathers. There is an increasing tendency for those in the NRA, or otherwise involved in the protection of our 2nd amendment rights – and freedom in general – to offer unwavering support for law enforcement and “law and order.” Well, have you had enough now? This should piss everyone off. There is nothing more harmful to our freedom than a bunch of untrained cowboy cops given a black Escalade and ski masks, and given a license to terrorize and kill people. And over someone allegedly attempting to put $50.00 worth of harmful chemicals into their bodies? Who and the hell cares. Do you care enough to spend your own personal money on such activity? Does that protect you and your family? Does that help establish “law and order”?
How much do you want to bet, that in your community, there is a group of similar cowboy cops, who identify themselves as some “drug task force,” where they get to put on ski masks, ride around in an SUV, and pretend that they are some elite force on a mission from God? The next time some political hack in your area says that he or she is going to put more cops on the street, ask yourself: do we really need more cops?
Here’s an idea: less laws, less taxes, less government workers, more freedom.
- John H. Bryan, West Virginia Attorney.
Law enforcement is [apparently] not a profession
It is often said that the definition of a profession is a group of persons who engage in the same occupation and police themselves. Physicians authorize and discipline their own. Lawyers authorize and discipline their own. The same goes for veterinarians, pharmacists, and so on. Cops do not police themselves. They do not proactively sort out the bad apples.
Case in point: former Montgomery, WV PD officer Matthew Leavitt. He successfully got his municipality sued multiple times and cost their insurance company six figure settlements. This could have been avoided years earlier if anyone in the law enforcement field would have given a damn. The Charleston Gazette published a story on his career. According to the Gazette, his resume includes the following:
November 2000-June 2001:
Leavitt is employed at South Central Regional Jail.
June 25, 2001:
Leavitt is arrested for driving under the influence.
December 2001-December 2004:
Leavitt is in the U.S. Army. While there, he is disciplined for drinking on duty.
March 2005:
Leavitt is employed as a Cedar Grove Police officer.
January 2006:
Leavitt’s certificate of completion of West Virginia State Police Basic Training is signed.
April 2006:
Leavitt is charged with battery by Charleston police for a bar fight.
June 2006:
Leavitt leaves the Cedar Grove department and is hired by the Madison Police Department.
July 13, 2006:
Leavitt goes to Elsie Keffer’s house in Madison at 7:45 a.m. and harasses her, her boyfriend and her daughter, according to Madison Police records subpoenaed in the Reynolds’ civil suit.
August 2006:
Leavitt resigns the Madison Police Department.
October 2006:
Leavitt is hired by the Smithers Police Department.
Nov. 6, 2006:
Leavitt is hired by the Mount Hope Police Department.
Nov. 24, 2006:
Leavitt leaves the Mount Hope department.
Nov. 29, 2006:
Leavitt is hired by the Gauley Bridge Police Department.
In his employee file, provided to the Gazette by Reynolds’ attorney Mike Clifford, there is a paper where Gauley Bridge Chief L.S. Whipkey and Mayor Damon Runyon kept notes from interviews with Leavitt’s references.
Madison Chief C. Burgess said, “he would love to have him back” and that he “gets along well with other people.” Smithers and Cedar Grove police chiefs also recommended Leavitt to Whipkey.
December 2006:
Hutchinson is hired by Smithers.
January 2007:
Leavitt is terminated by Gauley Bridge for sleeping on duty.
January 2007:
Leavitt is hired by Montgomery.
September 2007:
Hutchinson and Leavitt allegedly assault Roderick and Lakisha White after responding to an incident at their home, according to a lawsuit filed in Kanawha County Circuit Court.
“[Leavitt] threatened to ‘blow my fat black ass away,’” Lakisha White told the Gazette. “He said, ‘Bitch, I own you. I own the streets of Montgomery.’”
December 2007:
Hutchinson receives certificate of completion of West Virginia State Police Basic Training.
February 2008:
Leavitt leaves the Smithers Police Department. (During Leavitt’s tenure at Smithers, he worked for other departments concurrently, a common practice among small-town officers.)
March 2008:
Leavitt, recently hired by Cedar Grove, along with another Cedar Grove officer and a Kanawha County sheriff’s deputy, allegedly sexually assaults Patricia O’Scha on a hill across from Riverside High School, according to a suit filed by O’Scha in Kanawha County Circuit Court.
The three allegedly told her that if she would have sex with them, she wouldn’t have to go to jail. O’Scha said that while she was alone with Leavitt at the Montgomery police station, he implied she should have sex with him or give him oral sex, according to the complaint. Just when he stopped working for Cedar Grove is unclear.
March 2008:
Hutchinson resigns from Smithers and is hired in Montgomery.
August 2008:
Leavitt allegedly handcuffs Gregory Lee Payne and drives him to a wide spot in the road just before Interstate 64 near Cabin Creek. There he chokes and hits Payne, then leaves him by the side of the road, according to a lawsuit filed in Kanawha County Circuit Court.
Aug. 23, 2008:
Leavitt allegedly assaults 17-year-old Sherkiri Terrell. She alleges that after he pushed her head against a wall, he slammed her cell phone to the ground. As the two struggled, she says she put the phone down her pants. She alleges that when it began to ring, he put his hands down her pants to get the phone, according to Terrell.
Aug. 27, 2008:
Joey Carr knocks over a soda machine in Montgomery. Leavitt stops him, takes him to the police station and assaults him. When Leavitt pepper sprays him at close range, Carr says he tries to run away.
“He grabs me and throws me down, kicks me in the stomach and Maces me again,” Carr told the Gazette previously. “When he handcuffs me, he throws me against the car and told me to ‘Quit screaming like a little bitch.’”
Sept. 26, 2008:
Leavitt and Hutchinson assault Twan and Lauren Reynolds. Leavitt hits Twan over the head with a blackjack, kicks him in the back and sprays his eyes with pepper spray at close range.
He also uses a racial epithet and licks Lauren Reynolds on the neck during an interrogation, saying, “Little whore, you like it like that.” Their 4-year-old daughter witnesses much of the assault.
Sept. 27, 2008:
Montgomery officials suspend Leavitt and fire Hutchinson for the incident.
Sept. 29, 2008:
Montgomery police start an internal investigation into the Reynolds beating.
Oct. 1, 2008:
Hutchinson is employed as a Glasgow police officer.
Oct. 21, 2008:
Hutchinson’s last day as a Glasgow police officer.
April 2009:
Leavitt is terminated by Montgomery Police.
April 2009:
Hutchinson is employed by Chesapeake Police, where he is still an officer.
June 10, 2009:
Leavitt is indicted on federal civil rights violations for beating Twan Reynolds and falsely charging his wife, Lauren Reynolds, with a DUI.
July 6, 2009:
Leavitt pleads guilty to two misdemeanor civil rights violations in federal court. During the sentencing Oct. 22, Chief U.S. District Judge Joseph R. Goodwin said Leavitt remains defiant.
“He has stated that he only pleaded guilty because he feared that due to, quote, ‘idiots,’ unquote, on the jury, it was the, quote, ‘smarter thing to plead guilty,’ unquote,” Goodwin said. “He stated he wants the Court to know, quote, ‘I stand by my actions that day.’”
This generally is not the case with the State Police. But when the State Police fires somebody, or they resign due to misconduct, they usually go to some small municipality just as Leavitt did. Another case-in-point, Derrick Snavely. According to the Charleston Gazette, this is what was alleged:
In an interview with The Charleston Gazette in December 2008, the woman said Snavely told her she was driving in the middle of the road, then performed a field sobriety test on her. She asked him if she was going to get a DUI, and he told her he didn’t think she was that drunk.
Eventually they drove in separate cars to another spot, where Snavely, who is in his early 20s, began kissing and fondling her, she said. Then they drove in separate cars to her house, she said. “I went in survival mode,” she said at the time. “I couldn’t call anybody because he was the police.”
Snavely admitted to the sexual encounter, but claimed that there was no resistance. Though he was fired, he was not prosecuted. Prosecutors concluded that it was not a criminal offense for a trooper to have sex while on duty. They really stuck up for him.
Kanawha County prosecutors declined to bring charges against Snavely after reviewing the evidence, said Dan Holstein, assistant prosecutor for Kanawha County. The case was independently reviewed by two assistant prosecutors and they agreed that there was no prosecutable offense, he said. . . .
“To have a sex offense under those circumstances, you have to prove beyond a reasonable doubt that there was forcible compulsion. … And in this case there was no resistance at all, not even in word,” Holstein said. . . .
Prosecutors reviewed all the evidence, including a videotape inside the woman’s home that shows the officer there that night.
“If the Legislature wants to make it a crime to have sex with someone on duty, they can do that,” Holstein said. “But so far they haven’t. Just because he was a police officer and on duty doesn’t mean it was a crime.”
This should really piss you off. He pulled some girl over. Undisputed. She admits she was drunk. He ends up having sex with her at an apartment. Undisputed. (Undisputed only because it was caught on videotape). She is not charged with DUI. Undisputed. Prosecutors go out of their way to conclude that no crime was committed. Needless to say, her lawyer, Mike Clifford, disagrees:
“Any time a state trooper is in a squad car in uniform with a gun and a badge, the standing and negotiation powers for sex or anything else is severely restricted,” Clifford said.
Clifford, who has filed multiple lawsuits accusing police officers of wrongdoing in the past year, said he tells his clients that it’s best to follow police orders when they are stopped.
“Go along with whatever they do. We have the option in open court to figure it out,” he said.
So where does Snavely go after he resigns? Hinton, WV PD. A small municipality with a history of law enforcement issues. He is now Chief. I actually have met him, and he seemed like a nice guy when I met him. But the point is, there is a complete lack of sanity in the hiring of police officers by municipalities. These people are then given a gun and authority to point it at you. This helps put West Virginia last on the list of where people want to come visit – or start a business. Less officers is better than enough officers unqualified.
Officers who resign or are fired from counties also end up in these shady municipalities, such as Robert Alkire, Jr., about whom I have previously posted, who allegedly shot his gun off during an on-duty altercation with his girlfriend, and is now working at the Ronceverte, WV police department. The Charleston Gazette has also published articles on him.
This is what you get when you unionize government. This is what you get with big government: a complete lack of accountability, a complete lack of sanity. Just wait until it affects you, and then you will care. It happens.
- John H. Bryan, West Virginia Attorney.
So you want to sue the police….
I get calls every day from people in West Virginia, or from elsewhere who were arrested, etc., in West Virginia, who want to sue the police. To be honest with you, I only seriously consider very, very few of these types of cases. Sometimes, from what I hear in the first few minutes, or in a description of what allegedly happened, I don’t even want to get involved with it.
Since I know that people researching the law with regards to filing lawsuits against the police and police misconduct in West Virginia end up on the site, let me go ahead and tell you what I personally look for in a police liability case.
Number one, credibility. If it’s going to be your word against the officer’s. There must be some indication of credibility on your part. That means preferably no criminal history. College education is a plus. A good career is a plus. A good family is a plus. Being married is a plus. Being otherwise successful in life seriously bolsters your credibility.
Number two, corroborating evidence. It is almost necessary to provide some corroborating evidence that the police engaged in misconduct. It could be a witness (again, see comments on credibility), or it could be a videotape, an audio recording. It could be found in official documentation, such as a police report or internal investigation, or even in a cruiser dashboard camera, or a police report. It could be corroborated by law enforcement itself, such as through disciplinary action taken against the officer, or through a criminal prosecution of the officer.
Number three, damages. If you have no damages, in most instances, there’s nothing to compensate you for. This goes hand in hand with credibility. Generally, if you are a credible, upstanding citizen, it will cause you damage to be wrongly arrested. You might get fired. You might lose business. These are damages. Maybe you were beaten and ended up in the hospital. Medical bills, pain and suffering, etc., are damages.
Number four, your story of what happened to you has to piss me off. If after hearing what happened to you really pisses me off, then I get excited about it. Those are the types of cases I like to take. One’s that I feel comfortable with taking to a jury and shoving down the state’s throat. Where I feel truth and justice is on my side.
Number five, and lastly, I have to have a good feeling about the client. I don’t want to take a risk for someone – and these cases are risky – if I don’t like them. Because if I don’t like them, chances are a jury may not like them.
Unfortunately, it’s not possible for me, or for other attorneys, to take every justified case. Other considerations are always at play. It is one of the faults of our justice system.
But it doesn’t hurt to ask. If you call me with your story, I will at least be able to tell you pretty quickly whether I would be interested in taking the case or not.
- John H. Bryan, West Virginia Attorney.
Police Liability Seminar CLE
In a few weeks, I will be partially presenting a police liability seminar CLE in Charleston, WV. This will be the second year in a row I have done this. Last year was successful. There were a lot of highly-respected attorneys there, many of whom were defense lawyers representing the state, counties, and cities, and many were plaintiffs attorneys. A lot of good information was exchanged. For better or worse.
Here is a link to the brochure, with all of the relevant info.
http://www.nbi-sems.com/Enbi/Brochurepdfs/51523.pdf
Perhaps, the most advantageous lesson to be learned is immunity law and procedure as it applies to other types of governmental liability cases (for those who have not yet taken on one of these cases). Because it is mostly applicable in any type of case where you are suing the state, county, or city. And other types of cases are generally more profitable to a plaintiff than one in which you have a police officer or department as a defendant.
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.
John H. Bryan, Attorney at Law
Have law license, will travel.
John H. Bryan is a prominent West Virginia criminal defense lawyer who not only defends people in criminal courtrooms statewide, but also is one of the top civil rights attorneys in West Virginia, frequently suing police departments and the State for misconduct. He and his law firm also have a successful personal injury litigation practice and frequently handle high profile cases.
Email John: jhb@johnbryanlaw.com
“We may affirm absolutely that nothing great in the world has been accomplished without passion.” – Hegel.
WANTED TO BUY: antique firearms and related items, as well as Native American trade items and artifacts.
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