We settled the Elton Wine lawsuit against the West Virginia state police on the eve of trial. Part of the settlement includes the re-training of all West Virginia State Police officers on the knock and announce requirements under federal constitutional law. The other part of the settlement is the payment of $85,000.00 by the state police’s insurance carrier.
The settlement is important because there is no longer any doubt that law enforcement in West Virginia have a legal obligation to “knock and announce” prior to entering a home pursuant to a search warrant. They can no longer perform a no-knock entry without either a no-knock warrant signed by a judge, or exigent circumstances.
Wrongful Death Section 1983 Lawsuit Involving the West Virginia State Police and “No-Knock” home entries
I don’t believe I ever posted anything about this case. It involves the death of Elton Wine, a 71 year old man who was suspected of having a fugitive in his home. A search warrant was obtained for his home and a “no-knock” entry was made by the WVSP “SRT” (SWAT) team into his home. He died shortly thereafter while in police custody. The fugitive was not found in his home. The case is currently in litigation.
Important in this case is the fact that officers admit to executing a “no-knock” entry into the home, but did not have a warrant authorizing such an entry. This is an important area of civil rights law which is currently developing. We’ll see what happens.
It has only been 6 years, but we won the appeal of the dismissal of the Walnut Springs litigation against United Bank and the McQuade Appraisers.
Just to give an update, we have recently settled several police misconduct / civil rights cases. However, the insurance companies, and defendants, have started including confidentiality, or quasi-confidentiality provisions in them. So. . . . I can’t really comment. I really do work on them to completion. They’re not just dying on the vine.
I’ve recently been contacted about some cases with some appalling accusations of police misconduct, and I’m excited (if that’s the right word) to prosecute them. I still have time for another [good] case or two to work on this year if anyone wants to bring them to me. I also am still accepting co-counseling arrangements with other lawyers who think they have a client with a case.
This weekend I won first place in my division at the West Virginia Strongest Mountaineer II strongman competition.
Last week I tried a four day jury trial in the Circuit Court of Monroe County, West Virginia, for a 98 year old lady named Isadora Beavers. On July 23, 2013, she walked into my office in her black and white polka dot dress, and hat, and demanded to see me. She told me that she had a power of attorney whom she suspected was stealing from her. She told me that her power of attorney was also the Vice President of her bank, and that she had been unable to get copies of her bank statements. That same day I helped her revoke the power of attorney and, at her request, demanded copies of ten years of her bank records from her bank.
Shortly afterwards she fell and was admitted into the hospital. I visited her in the hospital and told her what I had found in the past few years of her bank records – primarily lots of “cash” checks. I asked her if she spent much cash. She told me no, that she grew up in the Great Depression era and was thrifty with her money. She did admit that she indulged in getting a fancy haircut every once and awhile. And she liked to eat at Shoney’s. I told her that a deed existed giving her power of attorney joint ownership of all of her real estate, with a right of survivorship. She said, no, that property was supposed to go to her family after her death.
Not long after she began to decline pretty quickly. She started to suffer from dementia. Family members arrived in the area and petitioned the court to become her guardians and conservators, which was granted. They later contacted me and asked me to get the real estate back so they could finance the best possible medical care for Isadora. We demanded the return of the real estate. The response from the ex-power of attorney was that she would deed the property back, but wanted a release from liability in exchange for it. Not surprisingly, this offended pretty much all of Isadora’s relatives, and they gave me the go-ahead to sue her.
Last week, we presented the overwhelming evidence to the jury. They returned with a plaintiffs’ verdict on all counts: fraud, breach of fiduciary duty, conversion and unjust enrichment. They awarded $326,771.06 in damages against the defendant, Betty B. Brown. That included $175,000.00 of punitive damages.
In my closing argument, I asked the jury to send a message that financial abuse of the elderly will not be tolerated. I believe they sent that message loud and clear. By the way, all money collected is going to Isadora to fund her medical care and expenses. The defendant is going to be reasonable for paying all of our attorney fees and expenses as well.
In the courtroom with some of Isadora Beavers’ nieces and nephews immediately following the verdict:
Today there was an article in the Charleston Gazette about the Mark Plants mess in Kanawha County.
On Wednesday, Judge Duke Bloom barred Prosecutor Mark Plants’ office from handling cases involving child abuse and neglect, violent crimes against children by their parent, guardian or custodian and criminal violations of protective orders . . . .
The ruling is in response to a petition from the city of Charleston asking that Plants be disqualified from hearing cases brought by the Charleston Police Department.
Lawyers with the state Office of Disciplinary Counsel filed a petition with the state Supreme Court asking that Plants be immediately suspended or disqualified from prosecuting domestic-violence cases involving parents and minor children. The ODC’s petition said Plants’ belief that the allegations against him aren’t a crime creates a conflict of interest for his office. The Supreme Court has scheduled a hearing on the matter for May 5.
So you have a city applying to a judge to disqualify the elected prosecutor from hearing certain cases, based on pending criminal charges. Domestic violence accusations pop up from time to time in the personal lives of police officers. The MO, in my experience, is that they are disarmed and given a desk job until the situation is resolved. I wonder if the employer, e.g., the City of XYZ, has ever sought to protect the rights of the alleged victims/accusers in domestic violence cases where the investigating officers have had their own history of accusations? And do they have standing to even have a say in the matter? After all, the county prosecutor is a position elected by the citizens of the county. Also, what about all the people who have previously been prosecuted for these types of crimes by Mr. Plants, or his office? Do they now have some right to have their case reopened, or thrown out?
Cell phones are increasingly becoming a primary component of any encounter between police and civilians. Along with that comes the warrantless seizure of cell phones. After all, they hold great evidentiary value from a law enforcement perspective. Neither the Fourth Circuit, nor the U.S. Supreme Court, has yet taken a position on whether there is a First Amendment (and therefore Fourth Amendment) right to videotape police officers. This isn’t exactly the same issue, since it mostly deals with seizing and searching cell phones incident to an arrest. But, the issue is the same when the person filming is arrested, at which point their phone will be seized.
When the phone is seized can the officers go through the phone without first obtaining a warrant? There is a very well written post on this topic from the Alabama Civil Rights and Civil Liberties Law Review blog, written by Lacy Triplett. She opined that:
The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurieand find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant.
In any event, you know that right now across the country, police officers go through the cell phones of arrestees, where they find valuable information such as, every text message conversation the person had in the last year – or even their email history. They also contain photos, videos – you name it. Those practices, and law enforcement training, is going to depend on the outcome of Wurie.
Former Prosecuting Attorney of Pocahontas County Indicted. Update: Kanawha Prosecuting Attorney also charged and currently “embattled”.
I don’t usually post many news headlines anymore, unless they involve my cases. But, here goes.
The former prosecuting attorney of Pocahontas County, West Virginia, Donna Price, was just indicted. She joins another now-former elected prosecuting attorney in West Virginia in recent prosecutor indictments (Michael Sparks out of Mingo County). Prosecutors all over the state are probably loosening their collars.
Apparently she is being charged with embezzlement. I have no idea what actually happened, so I’ll just point out that she is innocent until proven guilty.
And I have posted about her before. In one of my most popular posts ever – from back in 2009 – Cops and Prosecutors Part Deux.
Just as a side note: the former assistant prosecuting attorney of Pocahontas County mentioned in the “Part Deux” post, J.L. Clifton, was also indicted last year, as per this article.
Edited to add: Also, if you didn’t get your fill of reading about West Virginia prosecutors who are being prosecuted, check out these articles about Kanawha County Prosecuting Attorney Mark Plants. Yes he is being prosecuted. No he won’t resign.
Maybe it’s time for Cops and Prosecutors Part III – 2014 Update.
I just went back through the Sawyer v. Asbury opinion in this post on the Use of Force Source. If you have followed the case on this blog, it’s interesting to take a step back and analyze the Court’s ruling as it finds its place in Fourth Circuit excessive force case law.
- Civil Liability
- Computer Crimes
- Concealed Weapons
- Criminal Records
- Denial of Medical Care
- Domestic Violence
- Excessive Force
- Financial Abuse of Elderly
- Forensic Labs
- Governmental Liability
- Grand Juries
- History Series
- John H. Bryan
- Judicial Misconduct
- Law Office Tech
- Law School
- Media Coverage
- Medical Examiners
- Money Laundering
- motions for change of venue
- Negligent Homicide
- Plea Agreements
- Police Misconduct
- Preliminary Hearings
- Pretrial Hearings
- Right to Speedy Trial
- Searches and Seizures
- Self Defense
- Sex Crimes
- Sex Offender Registration
- State Agencies
- United Bank Lawsuit
- Vehicular Crimes
- West Virginia Concealed Carry Laws
- West Virginia Gun Laws
- White Collar Crime
- Wildlife Violations