WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

Update on the Sizemore “search and seizure” civil rights case

Here’s an interesting, and academic (for Constitution nerds), update on the Sizemore federal civil rights lawsuit, which had been in the news recently.

This is the one where the drug “task force” had found heroin in the client’s home, but the case was dismissed after a federal judge found that the officers had made numerous false statements to the magistrate in order to get the search warrant.  This is also actually the case I last posted about, since I haven’t been posting much on here lately.

Should the fact that officers were found to have made false statements under oath to get a fraudulent warrant, have been allowed to go away quietly since drugs were actually found, or should something have been done about it?  The news media wasn’t happy about it, necessarily, but I elected to do something – heroin or no heroin.  And here’s why:

Either “equal justice under the law,” etched into the walls of the Supreme Court, is just decoration, or it actually is enforced and put into practice.

Here is the response brief we just filed to some of the defendants’ motion to dismiss.  I really enjoyed writing this one, because it was as if I were back in my old baseball days, and being a kid who was bigger than most, the pitcher gave me an underhand slow pitch, just begging me to hit it out of the park.  Maybe I’m missing something, but I don’t think so.  I really look forward to reading the outcome of this one.  I don’t think it’s going to turn out like they had hoped . . . .

 

View this document on Scribd

Here is the motion to dismiss the defendants filed:

 

View this document on Scribd

Here is the original Complaint itself:

 

View this document on Scribd

December 3, 2019 Posted by | Civil Liability, Corruption, Drugs, Governmental Liability, John H. Bryan, Judges, Lawsuits, Lawyers, Magistrates, Media Coverage, Police, Police Misconduct, Searches and Seizures | Leave a comment

New Civil Rights Case Filed out of Fayette County: Sizemore vs. Members of the WV Drug Task Force

Here is the copy of a civil rights lawsuit we filed in the U.S. District Court for the Southern District of West Virginia late last week.  It has now been assigned to Judge Goodwin in Charleston, WV. The case comes out of Fayette County, West Virginia, and involves a criminal investigation and prosecution gone awry.

Sizemore Complaint

My client, Keith Sizemore, had his home searched, via a SWAT team style raid, while he and his 16 year old son were home.  In the subsequent federal prosecution, the federal judge presiding over the case ended up suppressing evidence obtained during the search, and issuing an order finding that members of the Drug Task Force had lied to the Magistrate Court of Fayette County in order to obtain the search warrant for Mr. Sizemore’s residence.  It’s really an astonishing order:

Sizemore Suppression Order

The order shines the light on what has become a common scenario: a drug raid with some sort of seizure of illegal drugs, and then there is a civil forfeiture proceeding in WV State Court, in which the owner of the items has all the items confiscated under color of law.  In this case, our lawsuit alleges that the state civil forfeiture machine had already seized and became the new owner of Mr. Sizemore’s home and 2017 pickup truck, before the criminal indictment was even served on him.  However, interestingly, the criminal prosecution exploded with the suppression order finding that the task force members lied to obtain the warrant.

I wonder what will happen?  We shall see…..

September 10, 2019 Posted by | Civil Liability, Drugs, Governmental Liability, John H. Bryan, Judges, Lawsuits, Magistrates, Searches and Seizures, Suppression, Uncategorized | Leave a comment

Understanding the law of West Virginia Domestic Violence Petitions

So, we end up doing a lot of domestic violence protective order litigation in both Greenbrier and Monroe County, WV.  This past week has to have been one of the craziest weeks on record, with some of the most insane, bizarre, and malicious, human behavior I’ve encountered in the past decade or so…..

As I sat trying to negotiate a resolution with one particular pro se (unrepresented by a lawyer) party a couple of days ago, it became apparent to me that people don’t know what the “F” they are doing….

  1.  Domestic Violence is bad, of course, but what is it, technically?

The West Virginia Legislature has adopted a civil remedy where victims of domestic violence can obtain what is essentially a restraining order.  So what is “domestic violence” according to this law?

The Prevention and Treatment of Domestic Violence Act, West Virginia Code §§ 48-27-101 et seq., defines “domestic violence” or “abuse” as specific acts between family or household members that involve:

1. Attempting to cause or intentionally, knowingly or recklessly causing physical harm to another with or without dangerous or deadly weapons;

2. Placing another in reasonable apprehension of physical harm;

3. Creating fear of physical harm by harassment, stalking, psychological abuse or threatening acts;

4. Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b [§§ 61- 8B-1 et seq.] and eight-d [§§ 61-8D-1 et seq.], chapter sixty-one of this code, and;

5. Holding, confining, detaining or abducting another person against their will. W. Va. Code § 48-27-202.

The statutory definition of domestic violence is narrower than the commonly accepted definition of domestic violence because it primarily defines domestic violence as acts of physical violence, and only includes psychological abuse when it creates fear of physical harm. Although psychological abuse may not meet the statutory definition of domestic violence by itself, this type of abuse may be relevant to a proceeding involving domestic violence because it provides evidence of an abuser’s motive, intent, or plan. Additionally, evidence of psychological abuse may provide insight into the actions of both the abuser and the victim.

In addition to the definitions set forth in West Virginia Code § 48-27- 202, the West Virginia Legislature has criminalized acts of domestic assault and domestic battery by the enactment of West Virginia Code § 61-2-28. The distinction between domestic assault or battery and non-domestic assault or battery is that the domestic abuse must occur between family or household members. The Legislature has also established enhanced penalties for subsequent domestic assault and battery convictions. The enhanced penalties demonstrate that the Legislature both recognizes the repetitive nature of domestic violence and punishes it accordingly.

Providing further protection for domestic violence victims, West Virginia Code § 61-2-9a criminalizes stalking, harassment, and threats. As with domestic assault and battery, this code section establishes enhanced penalties for subsequent convictions. It also authorizes a court to issue a restraining order for a period of up to ten years upon conviction. When a defendant is charged with either harassment or stalking, it is a condition of a bond that the defendant shall have no contact with the victim. Although this code section could be applied to situations that do not involve domestic violence, this code section provides meaningful protection for domestic violence victims because it criminalizes behavior typically identified as domestic violence.

 

Family Court Judges are taught the following, in addition to the actual wording of the statute:

Although the motive for domestic violence commonly involves domination and control, domestic violence perpetrators employ various methods to achieve that purpose.4 Common psychological tactics include emotional abuse, such as control over finances, repeated and degrading insults, and threats. An abuser is often extremely jealous or possessive, and may isolate a victim from friends, family and other relationships. As another psychological tactic, an abuser may threaten to gain full custody of children. An abuser may also throw things, punch walls or hurt pets.

In addition to emotional abuse, an abuser may push, shove, shake or grab a victim. Other forms of physical abuse include: slapping, kicking, biting or twisting arms, legs or fingers. An abuser may choke, strangle or smother a victim. An abuser may also threaten a victim with a weapon, such as a knife or a gun, and may commit assault with a weapon. Rape or other forced sexual contact is yet one more type of abuse. Physical acts of domestic violence may constitute criminal behaviors, and should not be minimized or tolerated because they are directed against family members.

See 2012 Domestic Violence Judicial Handbook.

 

2.   Some background on “domestic violence protective orders”

Although the motive for domestic violence commonly involves domination and control, domestic violence perpetrators employ various methods to achieve that purpose.4 Common psychological tactics include emotional abuse, such as control over finances, repeated and degrading insults, and threats. An abuser is often extremely jealous or possessive, and may isolate a victim from friends, family and other relationships. As another psychological tactic, an abuser may threaten to gain full custody of children. An abuser may also throw things, punch walls or hurt pets.

In addition to emotional abuse, an abuser may push, shove, shake or grab a victim. Other forms of physical abuse include: slapping, kicking, biting or twisting arms, legs or fingers. An abuser may choke, strangle or smother a victim. An abuser may also threaten a victim with a weapon, such as a knife or a gun, and may commit assault with a weapon. Rape or other forced sexual contact is yet one more type of abuse. Physical acts of domestic violence may constitute criminal behaviors, and should not be minimized or tolerated because they are directed against family members.

 

A protective order proceeding has the added advantage of a lower burden of proof. Often, there are no witnesses to domestic violence other than the abuser and the victim, and the evidence may not meet the criminal standard of proof of beyond a reasonable doubt.

Although protective order proceedings provide a legal remedy for domestic violence victims, some professionals involved in the proceedings may question their efficacy.48 In a study examining victims’ strategies to combat domestic violence, the results indicated that 30% of the victims who obtained an initial ex parte protective order did not appear at the final hearing.49 Examining the reasons for this occurrence, it was noted that law enforcement failed to serve a petition in 50% of the cases, which in turn either delayed or prevented the entry of a final protective order. Also, petitioners did not attend a final hearing because of conflicts with employment or lack of childcare. A lack of legal representation was an additional reason that victims did not complete the process. Certainly, these institutional barriers must be addressed to increase the effectiveness of protective orders.

The study also indicated that the ex parte orders, in some cases, were sufficient to meet the victims’ needs. Specifically, victims noted that the ex parte order stopped the violence, allowed the victim to separate, or induced the abuser to seek counseling. Based upon these interviews, it was concluded that the failure to obtain a final protective order does not indicate “that the advocate has failed or the woman has been passive in the face of abuse.”50 Rather, protective orders, including ex parte orders, provide an effective legal remedy that can be tailored to meet the needs of domestic violence victims.

 

3.  There must be a “family or household member” relationship

The domestic violence protections and remedies under Chapter 48, Article 27 are tied to occurrences of violence or abuse between “family or household members” as that term is defined under this Act. The only time a proceeding under this Act may involve parties other than “family or household members” is when the petitioner is seeking protection as one who reported or witnessed domesticviolence. See W. Va. Code §§ 48-27-305(3); 48-27-504.

As provided in West Virginia Code § 48-27-204, “family or household members” means persons who:

(1) Are or were married to each other;(2) Are or were living together as spouses;
(3) Are or were sexual or intimate partners;
(4) Are or were dating: Provided, That a casual acquaintance or ordinary fraternization between persons in a business or social context does not establish a dating relationship;
(5) Are or were residing together in the same household;
(6) Have a child in common regardless of whether they have ever married or lived together;
(7) Have the following relationships to another person: (A) Parent; (B) Stepparent; (C) Brother or sister; (D) Half-brother or half-sister; (E) Stepbrother or stepsister; (F) Father-in-law or mother-in-law; (G) Stepfather-in-law or stepmother-in-law; (H) Child or stepchild; (I) Daughter-in-law or son-in-law; (J) Stepdaughter-in-law or stepson-in-law; (K) Grandparent; (L) Stepgrandparent; (M) Aunt, aunt-in-law or stepaunt; (N) Uncle, uncle-in-law or stepuncle; (O) Niece or nephew; (P) First or second cousin; or
(8) Have the relationships set forth in paragraphs (A) through (P), subdivision (7) of this section to a family or household member, as defined in subdivisions (1) through (6), of this section.

The length of this provision is the first indication that the class of persons covered by the term “family or household members” is fairly broad. The statutory definition can be generally broken down into three categories of covered persons. Determinations as to who falls within either of the first two categories is straightforward in most cases. More careful analysis is generally needed if the determination involves the third category of covered persons.

The first category, the “partner” relationships described in subsections (1) through (6) of the statute, encompass parties who are or were — married; living together (whether in a spousal relationship or simply residing in the same household); sexual partners; dating; or parents of a child. Second, the “kinship” categories listed in subsections (7)(A) through (P), cover many of the family connections by blood or marriage. The third category, the subsection (8) “tie-in” provision, brings two parties within the “family or household member” class as long as one party has a “kinship” relationship [under subsection (7)(A)-(P)] with someone who has or had a “partner” relationship [under subsections (1)-(6)] with the other party.

See 2012 Domestic Violence Judicial Handbook.

 

4.  The Logistics

Circuit courts, family courts and magistrate courts have concurrent jurisdiction over domestic violence proceedings. W. Va. Code § 48- 27-301; Rule 25, RDVCP. Emergency proceedings upon the filing of a petition for a protective order are held before a magistrate. W. Va. Code § 48-27-203.

Final hearings, following the entry of an emergency protective order by a magistrate, are typically heard before a family court judge. W. Va. Code § 48-27-205. However, circuit court judges may assist family court judges in the disposition of domestic violence caseloads by conducting protective order proceedings. Rule 25, RDVCP.

Appellate jurisdiction from a magistrate’s denial of an emergency protective order lies in the family court; and appeals from family court

 

5.  The Timeline

A petitioner denied a DVPO may appeal to the family court. The petition for appeal must be filed no later than five days following the denial, and must be heard by the family court within ten days from the date the appeal was filed. W. Va. Code § 48-27-510(a); Rule 18(a), RDVCP.

 

If the Temporary DVPO is granted, a final hearing before the family court must be scheduled to take place no later than ten days following the entry of the Temporary DVPO. W. Va. Code § 48-27-402(e).

Any party may file a petition for appeal following the grant or denial of a DVPO at the final hearing in Family Court. The petition must be filed within ten days following the decision of the family court. Rule 19(a), RDVCP. The circuit court is required to hear the appeal within ten days following the filing of the petition. W. Va. Code § 48-27-510(b) and (c); Rule 19(a), RDVCP.

 

6.  Never walk into court without a lawyer.  Period.  Especially not when the words “domestic violence” are in the subject line of the case…..

 

 

August 2, 2019 Posted by | Domestic Violence, Legislation, West Virginia Gun Laws | Leave a comment

West Virginia Gun Laws – July 2019

I’m seeing more and more confusing regarding West Virginia’s gun laws as of 2019.  Here is a quick rundown of some important things every West Virginian should know:

IMG_1701

“Constitutional Carry”

West Virginia recognizes the right of United States Citizens, or Legal Residents of the United States, who are 21 years of age or older, and who are not otherwise prohibited under state or federal law from possessing a firearm, to carry a concealed weapon in West Virginia without first obtaining a concealed carry license.  This is known as “Constitutional Carry,” in this, as well as other freedom-loving states.

This allows qualified persons to carry any “deadly weapon,” not just a pistol/revolver, like the old permit process allowed.  What can be carried concealed under constitutional carry?

A “deadly weapon” is generally deemed as “an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use.” W. Va. Code § 61-7-2(9). It includes, but is not limited to, knives, switchblades, metallic knuckles, pistols, revolvers, and blackjacks. W. Va. Code § 61-7-2. Other items will be considered a “deadly weapon” for purposes of this statute where the circumstances of a particular case demonstrate that the weapon was “dangerous or deadly.” See Syl. Pt. 5, State v. Choat, 178 W. Va. 607, 363 S.E.2d 493 (1987).

What is the definition of “concealed” under the law?

“Concealed,” for purposes of W. Va. Code § 61-7-1, et seq., means: 

hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried. For purposes of concealed handgun licensees, a licensee shall be deemed to be carrying on or about his or her person while in or on a motor vehicle if the firearm is located in a storage area in or on the motor vehicle. 

Exceptions:

  1.  West Virginia’s constitutional carry law applies only to persons physically within the State of West Virginia.  It does not authorize any person to carry in another state.
  2. It does not apply to persons under the age of 21, even if they are otherwise eligible to possess a firearm.

18-21 year olds:

Just how is freedom denied to 18-21 year olds who have fought and died in foreign wars for the politicians who restricted their God-given rights?

  1. WV residents from 18-20 years of age who are not otherwise prohibited by law may obtain a “Provisional License” to carry a concealed pistol/handgun (ONLY- no nunchucks,etc.) for a total cost of $40.00.  It will be valid until the person turns 21.
  2. NOTE: The provisional license only applies to pistols or revolvers. Other concealed deadly weapons (such as brass knuckles, knives longer than 3.5″, clubs, ASPs, etc…) may result in arrest, fine, and jail time. An 18-20 year old who carries any concealed deadly weapon without a license will face a year in jail and a $1000 fine, and could find themselves disqualified for firearms ownership in the future. The same penalty applies to an 18-20 year old who carries a concealed deadly weapon other than a handgun, even if they have a provisional license. 21+ persons are allowed to carry deadly weapons other than firearms concealed, provided that weapon is legal to possess, and that they are not prohibited by law from possessing firearms. Disqualified persons (felony convictions, etc..) who carry concealed deadly weapons of any kind face severe criminal penalties.
  3. 18-20 year old members of the United States Armed Forces, Reserves, and National Guard may carry concealed handguns without a license. NOTE: This does not cover deadly weapons other than handguns. Knives with blades longer than 3.5″, switchblades, dirks, ASPs, etc… are NOT covered under this section. Handguns only. See: §61-7-6.
  4. Persons between the ages of 18 and 21 in lawful possession of a rearm are not prohibited from carrying an unconcealed rearm (“open carry”) without a provisional license as long as the person obeys all other applicable laws and restrictions.

 

“Prohibited Persons” from owning a firearm under West Virginia law:

Under West Virginia law, individuals falling within the following categories are prohibited from possessing a firearm: 

–  Has been convicted in any court of a crime punishable by imprisonment for a    term  exceeding one year;

–  Is habitually addicted to alcohol;

–  Is an unlawful user of or habitually addicted to any controlled substance;

–  Has been adjudicated to be mentally incompetent or who has been              involuntarily committed to a mental institution

–  Is an alien illegally or unlawfully in the United States;

–  Has been discharged from the armed forces under dishonorable conditions;

–  Is subject to a domestic violence protective order (provided the DVP prohibits    possession of firearms/ammunition; note that an emergency, ex parte domestic    violence protective order must prohibit the respondent from possessing a    firearm);

–  Has been convicted of a misdemeanor offense of assault or battery either    under state or federal law which the victim was a current or former spouse or    sexual or intimate partner, person with whom the defendant has a child in    common, person with whom the defendant cohabits or has cohabited, a parent    or guardian, the defendant’s child or ward or a member of the defendant’s    household at the time of the offense or has been convicted in any court of any    jurisdiction of a comparable misdemeanor crime of domestic violence.

W. Va. Code 61-7-7(a)(1)-(8) (2016).

Temporary Personal Safety Orders:

West Virginia also recently enacted W. Va. Code Section 53-8-5, which provides for “temporary personal safety orders”, which are essentially domestic violence protective orders for petitioners who are not related to the respondents.  PSOs are available where the respondent alleges sexual offenses, stalking (W. Va. Code Section 61-2-9(a)), or repeated credible threats of bodily injury (W. Va. Code Section 53-8-4).  A PSO may prohibit the respondent from possessing a firearm if a weapon was used or threatened to be used in the commission of the offense; or the respondent has violated any previous order; or the respondent has been convicted of an offense involving the use of a firearm. See W. Va. Code Section 53-8-5.  These orders can be in effect up to two years.

For more information, see the Attorney General’s handbook:

https://ago.wv.gov/gunreciprocity/Documents/On%20The%20Mark.pdf

 

 

July 15, 2019 Posted by | West Virginia Concealed Carry Laws, West Virginia Gun Laws | Leave a comment

Open-Carry of Firearms in WV in 2019: “Am I being detained?”

This is the current state of open-carry law in West Virginia (in my opinion), and it’s tricky relationship with a police officer’s right to do a “Terry” frisk under certain instances, as of February of 2019. Note: government lawyers do, and will, disagree with my analysis.  But mine’s supported by the law. However, proceed at your own risk, and the law may change after I write this, especially since litigation is ongoing….

1. If you’re in a vehicle, and an officer has a suspicion you may be armed, or sees that you’re open-carrying, you may be frisked and temporarily disarmed; 

2. If you’re not in a vehicle subject to a traffic stop, a police officer must have some reasonable articulable suspicion that you are engaged in criminal activity in order to seize and disarm you. Open-carrying a firearm alone is not justifiable suspicion to perform an investigative detention, unless the officer has information that you are a prohibited person unable to possess a firearm.

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Many of you have probably seen the recent lawsuit I’ve been involved with in the Michael Walker v. Putnam County case where we sued over the violation of Mr. Walker’s right to open carry a firearm in West Virginia.

The defense from the government so far is that they are allowed to perform what’s called a “Terry” stop and frisk when they see someone with a gun.  Just to clarify the law, since they obviously misunderstood then, and continue to misunderstand.

A person’s Fourth Amendment rights under the U.S. Constitution to be free from unreasonable search and seizure are triggered whenever a “seizure” occurs.

When does a seizure occur?

A person is “seized” within the meaning of the Fourth Amendment if, “ ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they “touched the defendant or made any attempt to physically block his departure or restrain his movement”; (v) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”; (vi) whether the officers informed the defendant that they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature”; and (vii) “whether, if the officer requested from the defendant … some form of official identification, the officer promptly returned it.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Gray, 883 F.2d at 322–23.

The Fourth Circuit has noted that though not dispositive, “the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis.” United States v. Black, 707 F.3d 531, 538 (2013) (citing Weaver, 282 F.3d at 310 (emphasis added)). In Black, the Court found that, “[i]t is clear that when Officer Zastrow expressly told Black he could not leave, Black was already seized for purposes of the Fourth Amendment.” Black at 538 (emphasis original).

When can a “seizure” be legal as a justified “Terry” Stop and Frisk under Terry v. Ohio?

Federal case law has long been clear that the police officers cannot perform a “Terry stop” of a person lawfully open-carrying a firearm for the purposes of checking his ID and running a background check to determine whether the person is a prohibited person, or to otherwise disarm him, without more.  Although brief encounters between police and citizens require no objective justification, United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002), it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868 (1968). 

To be lawful, a Terry stop “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752 (1980).  The level of suspicion must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009).  As such, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. 1868. Moreover, the Fourth Circuit has already made it very clear that in states where open carry is legal, such as West Virginia, if officers have no individualized information that a particular individual who is lawfully open-carrying is a prohibited person, the mere exercise of their rights by open-carrying “cannot justify an investigatory detention.”  Indeed, the Court held that “Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 540 (2013) (quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).

Occupants of a vehicle subject to a lawful traffic stop are a different analysis altogether, and are more likely to be subject to a Terry seizure.  An officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene. Robinson at 696 (2017 case) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

The importance of the Black case to open-carry rights in our circuit:

In 2013, Judge Gregory of the U.S. Fourth Circuit Court of Appeals, whom I have had the honor of appearing in front of, issued an opinion in the case of United States v. Black, 707 F.3d 531, 540 (2013), which is central to the rights of West Virginians to open carry firearms.  Although that case was from North Carolina, it applies equally here.  In his opinion, he admonished law enforcement for regularly abusing the Terry Stop procedure to violate the rights of lawful gun owners:

At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir.2011); Massenburg, 654 F.3d 480;United States v. Digiovanni, 650 F.3d 498 (4th Cir.2011); and United States v. Foster, 634 F.3d 243 (4th Cir.2011). Although factors “susceptible of innocent explanation,” when taken together, may “form a particularized and objective basis” for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion. 

Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See Powell, 666 F.3d at 188 (“[A] prior criminal record is not, standing alone, sufficient to create reasonable suspicion.” (citation omitted)). Moreover, we “ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the individualized suspicion requirement “have been upheld only in ‘certain limited circumstances,’ where the search is justified by ‘special needs’ ”—that is, concerns other than crime detection—and must be justified by balancing the individual’s privacy expectations against the government interests. Id. (quoting Chandler v. Miller, 520 U.S. 305, 308, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)); see Treasury Employees v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that suppress the normal requirement of individualized suspicion. 

Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14– 415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded. 

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections. 

United States v. Black, 707 F.3d 531, 540 (2013).

 

February 21, 2019 Posted by | Governmental Liability, John H. Bryan, Judges, Lawsuits, Police, Police Misconduct, Searches and Seizures, Vehicular Crimes, West Virginia Concealed Carry Laws, West Virginia Gun Laws, Wrongful Arrest, Wrongful Imprisonment | Leave a comment

Braxton County Wrongful Arrest Case Working its Way through the System…. Can you lie to the police in West Virginia?

I don’t believe I ever posted on this case:

https://wvrecord.com/stories/511259277-woman-sues-braxton-county-sheriff-s-deputy-after-allegedly-being-unlawfully-incarcerated

The Rosa O’Neal Fourth Amendment case against Braxton County, and Deputy Bryce Scarbro.  This is an interesting case because it brings up what is commonly referred to as a “Franks Claim.”

In West Virginia, unless a warrantless arrest is made, that means that a police officer usually wrote out a “Criminal Complaint,” and submitted it to a magistrate for their approval.  This is basically an affidavit for an arrest warrant.  If the arrest was “wrongful,” you can’t sue the magistrate because they have absolute immunity.  You can only sue the police officer who submitted the document to the magistrate.

If the magistrate approved it, then there is basically a presumption that there was probable cause, and therefore not a wrongful arrest.  That leaves you in the position of proving that the officer who wrote the arrest warrant application included false statements, or material omissions, and that they did so with a certain degree of incompetency, or intentionally.

So generally, to sue for Wrongful Arrest in West Virginia:

  1.  If there was no arrest warrant, you can just prove there was no probable cause;
  2. If there was an arrest warrant (Criminal Complaint signed by a magistrate), then you are required to show false or misleading information was included in the affidavit to the magistrate which, had it been known to the magistrate, probably would not have been signed because there would have been no probable cause.

We are dealing with option No. 2, which isn’t easy.  So, did the police officer mislead the magistrate, and was it just a stupid or reasonable mistake, or was it really incompetent and/or done maliciously or purposefully?

Rosa O’Neal was a 66 year old lady who had never been in trouble in her life, who was physically arrested for allegedly lying to a deputy about two fairly innocuous facts.  She spent 15 hours in jail, and then was released onto the side of the road to hitchhike home.

I took the deputy’s deposition, and he claimed that it is always illegal to lie to a deputy in West Virginia, and because he’s Mr. Truth and Justice, and had her arrested.  That’s just not true.  It’s only illegal to lie to a deputy if it pertains to a material topic for an official felony investigation.  It’s not illegal to lie about a misdemeanor investigation, per se.  And it’s not illegal to lie about something irrelevant; or about something that’s not part of an investigation….

Lies to a police officer in West Virginia? Depends on what the officer is investigating:

  1. Felony Investigation:  A person who, with intent to impede or obstruct a law-enforcement officer in the conduct of an investigation of a felony offense, knowingly and willfully makes a materially false statement is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $200, or confined in jail for five days, or both fined and confined.  The provisions of this section do not apply to statements made by a spouse, parent, stepparent, grandparent, sibling, half sibling, child, stepchild or grandchild, whether related by blood or marriage, of the person under investigation.  Statements made by the person under investigation may not be used as the basis for prosecution under this subsection.  For purposes of this subsection, law-enforcement officer does not include a watchman, a member of the West Virginia State Police or college security personnel who is not a certified law-enforcement officer.
  2. Misdemeanor Investigation: A person who by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail not more than one year, or both fined and confined.

So option 2 is your basic obstruction.  It actually doesn’t say anything about lying.

Anyways, discovery was completed in the O’Neal case.  Depositions were taken, and everything has been submitted to the federal judge, who will decide whether the evidence is sufficient to present to a jury…..

January 31, 2019 Posted by | Civil Liability, John H. Bryan, Lawsuits, Magistrates, Media Coverage, Wrongful Arrest, Wrongful Imprisonment | Leave a comment

Federal Judge Rules First Amendment Civil Rights Lawsuit against Richard Ojeda will proceed

Today we finally received a ruling in the Woolsey v. Ojeda civil rights lawsuit.  Here is the order we just now received from the federal judge:

Woolsey v. Ojeda, Memorandum Opinion and Order, January 30, 2019

The federal court found that Richard Ojeda was acting under color of law when he went on his Facebook Live tirade against my client, and also that by doing so in response to my client posting a critical video, if true, it was a violation of my client’s First Amendment rights:

In sum, under the facts pled in Plaintiff’s complaint, the totality of the circumstances points to a conclusion that Defendant acted under color of state law in both posting the response video to his official Facebook page and making a phone call to Plaintiff’s employer in an effort to have Plaintiff fired. Defendant’s motion to dismiss the complaint on this basis is therefore DENIED.

….

Plaintiff has demonstrated that in response to the video Plaintiff posted, Defendant contacted Plaintiff’s employer in order to pressure the owner to fire Plaintiff. Accordingly, Plaintiff has adequately pled a First Amendment violation, and Defendant’s motion to dismiss the complaint on this basis is DENIED.

This is a huge win for the constitutional rights of individual citizens, and is on its way to establish a new benchmark on the application of First Amendment rights to politicians and social media…..

January 30, 2019 Posted by | Civil Liability, Elections, First Amendment, Governmental Liability, John H. Bryan, Lawsuits, Lawyers, Media Coverage | Leave a comment

New changes in West Virginia law regarding hemp and medical marijuana

Update: Facebook video I made:   https://www.facebook.com/JohnBryanLaw/videos/244860226411030/


So last night I attended a great seminar on the developing legal changes in West Virginia. Here are some of my notes, regarding my take-aways…  This is a completely new area of the law, and economy, in West Virginia.  Here were my basic takeaways.  Excuse the short-hand notes:

Things learned from the hemp seminar last night:

1. There will be a boom of investment into West Virginia, including a land rush, for hemp and medical marijuana, similar to the marcellus shale.  Foreign investors and land agents are going to be looking for lease contracts.  Private property owners and farmers are going to want to cash in as well.  A legal quagmire is imminent, due to the next thing:

2. The difference between hemp and marijuana is a chemical difference only.  You cannot tell the difference, nor can law enforcement, between hemp and M. by looking at it.  A chemical analysis has to be performed.  Hemp is, by law, .3% or less THC of a certain strain of marijuana plant, and therefore not illegal.

3. State and federal law, and authorities are not on the same page.  The WV DOA is fully on-board and is looking to assist landowners and businesses in developing this new economy, while the feds are still looking for pot needles……  There are differences in state and federal law which can land you in big trouble very easily…..

4. Industrial hemp growing, and production, is going to be much easier than dealing with medical marijuana.  Pretty much anyone is going to be able to get into hemp, so long as all owners, and land owners, pass background checks.  While MM is going to be limited to 10 growers, and 10 processors…..  Insert WV good ole’ boy politics.  

5. Both hemp and MM are going to be cash-intensive businesses.  While hemp is reasonable as far as permit fees go, there currently is no access to banking institutions, nor insurance for those activities.  MM has the same problems, with the added bonus of enormous filing fees and capital requirements.  To get into that business, it looks like millions in liquid capital is going to be necessary.  With the added bonus of no banking, no insurance, and high legal risk.  The cherry on top is that apparently the IRS is auditing pretty much 100% of these businesses….

6. LEOs are going to be very slow in understanding the legalities and the differences.  You must get legal advice prior to getting involved.  Transporting can be big trouble. Likely better to fully notified any applicable agencies ahead of time.  Be proactive.

7. This is going to be a regulation nightmare, but it will be necessary.  Permitting is going to be key.  Permits will be denied based on nondisclosure, lies, or omissions.  Better to be fully compliant than sorry.

Summary:

Get ready and buckle up because this industry is coming; and it could be an economic boom for West Virginia.  There’s a lot of money to be made, and let’s try to keep it in WV rather than the out of state investors.  But as they say, you’re going to need a lot of 

Lawyers, guns, and money…….

Thanks to Jennifer Mason, Esq., of Dinsmore & Shols law firm for the presentation last night.  The thoughts here are my own and not hers BTW…..

January 16, 2019 Posted by | DOJ, Drugs, Hemp/Marijuana, Lawyers, Uncategorized | Leave a comment

Important gun Rights civil lawsuit filed against Putnam County, West Virginia, and three deputies.

 

Update:  Charleston Gazette-Mail article:

https://www.wvgazettemail.com/news/putnam_county/scott-depot-man-sues-putnam-deputies-commission-after-alleged-false/article_293c3a92-be3e-53d9-9de9-d5619717376f.html

WV Record article:

https://wvrecord.com/stories/511685545-man-sues-putnam-county-commission-deputies-for-civil-rights-violations

———————————————————————————————

Yesterday we filed a federal civil rights lawsuit against the Putnam County Commission, along with three of their employee deputies: Lovejoy, Donahoe and Pauley.  The suit is related to multiple searches and seizures of Michael Walker, a Scott Depot, WV resident, who was simply exercising his right to open-carry firearms in the State of West Virginia.  He has seizures, so he cannot drive.  Therefore he walks everywhere he goes, including hunting.  But when he walks with a firearm openly displayed, which is perfectly legal in West Virginia, he has been harassed by the Putnam County Sheriff’s Department.  In December of 2016, he was arrested by Deputy Lovejoy for open carrying a pistol.  He spent an entire weekend in jail without his seizure medications, and ended up hospitalized.  He was found not guilty following a trial of that illegal arrest.

Two months later, Mr. Walker knew to turn the video recorder of his cell phone on so that his next encounter would be preserved for the world to see.  This video, a portion of which is posted here:

(https://www.facebook.com/JohnBryanLaw/videos/595342300923715/)

The video shows a law enforcement officer admitting that he targets all firearms owners, including law abiding citizens, for illegal searches and seizures.  In other words, he admits to a pattern, practice and policy of depriving the rights of gun owners in Putnam County, West Virginia.  At one point, the deputy asks Walker why he needs an AR-15….

The officer, Deputy Donahoe, calls Mr. Walker a “fucking cocksucker” a few times, accuses him of being a “sovereign citizen,” and blatantly defies established federal constitutional law.

Federal law is very clear that, in open carry states, such as West Virginia, a police officer cannot perform an investigatory detention, or seizure, or “Terry Stop,” of an individual lawfully open-carrying a firearm.  Not unless they have individualized information that the specific individual is prohibited from possessing firearms, or that the individual has committed some criminal act.  They cannot walk up to you and ask for your ID, then run a background check on you, just to be sure you’re legal to carry a gun, which is what happened here.  In fact, Deputy Donahoe admitted to committing many more civil rights violations involving innocent gun owners.  He said he does it every day, and arrests people all the time on that basis.  That might perk up the ears of some public defenders in Putnam County……

If you want to know more, read the Complaint linked below.  It has all the details, and sets out the laws which were violated.

Complete text of the Complaint:

Walker v. Lovejoy, et al., Civil Action No. 3:18-cv-01523 , U.S. District Court for the Southern District of West Virginia

December 18, 2018 Posted by | Uncategorized | Leave a comment

The “Hurt” case against the West Virginia State Police and West Virginia DNR was filed, and is in the news….

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Full Version of the Hurt Lawsuit.

Charleston Gazette-Mail article from this Sunday:

WV family’s call to police ends in excessive force lawsuit

A family from Camp Creek, in Mercer County, is alleging West Virginia State Police troopers and a Division of Natural Resources officer violated their civil rights and exercised excessive force on them after they called police in 2016 to report an armed, unstable neighbor — who later called in a fake hostage situation, stole a police cruiser from a trooper and set it ablaze — according to a federal lawsuit filed last month in the Southern District of West Virginia.

“It was just like boom, out of nowhere all of a sudden my yard was filled with them, all screaming and hollering at [Lilly],” Ronnie Hurt said…..

Wills, who was on the phone with 911 during the entire incident, heard officers yelling at her father to step off the porch with his hands up. Due to health issues and physical disabilities, she knew he needed help climbing the porch stairs, so she went outside to assist.

Within seconds of Willis stepping outside, Trooper John R. Tupper and DNR officer Marshall Richards grabbed her and her father by the arms, yanking them “violently and forcefully” face-first off the porch and onto the ground, the suit reads.

“They didn’t tell me anything, nothing at all,” Wills said. “Not to put my hands up, not to hang up the phone. I didn’t even have a chance before I was on the ground.”

One officer grabbed Wills’ phone, hung up on 911 and threw it on the ground before stepping on it with his boot, she said.

 

December 18, 2018 Posted by | Civil Liability, Excessive Force, Governmental Liability, Lawsuits | Leave a comment