As was reported in the Charleston Gazette today, on Friday, together with Ron and Scott Windom of Windom Law Offices in Harrisville, WV, we filed a lawsuit against Ritchie County, including the Sheriff of Ritchie County, and the Chief Administrator.
The Gazette reported:
A former Ritchie County sheriff’s deputy has sued the sheriff who fired him, claiming his civil rights were violated when the sheriff installed a GPS tracking device on his police cruiser without a warrant.
James Asbury, 49, of Berea, filed the lawsuit against Ritchie Sheriff Bryan Backus and Ronald Barniak, a former sheriff in Ritchie County and Backus’ chief administrator. In the complaint, which was filed in Ritchie Circuit Court on Friday, Asbury claims that Backus and Barniak have a history of violating deputies’ constitutional right to be free of unreasonable search and seizure.
Yes, even though the County owns a police cruiser in the possession of a deputy, federal law provides that a GPS search of that vehicle cannot be performed without a warrant. Police officers have constitutional rights just like the rest of us.
What is even more interesting about this story is that my client, Jim Asbury, was a former defendant in an excessive force 1983 lawsuit I filed on behalf of Brian Sawyer – which was perhaps my most infamous case. But it doesn’t stop there. Opposing counsel, at least at the pre-litigation stage, is the same lawyer who represented Deputy Asbury at the two jury trials, and two Fourth Circuit appeals against me in that case. So, same police officer involved. Same two lawyers. But now the one suing him is representing him. And the one defending him is opposing him.
A little more from the Gazette article:
Asbury’s lawsuit also claims that the sheriff told grand jurors about the locations Asbury traveled while off duty and reminded them that their taxes pay for Asbury’s expenses.
“You guys need to know that I think everybody here knows me, and they know that I handle problems. Look at my record with employees in the past,” the lawsuit alleges the sheriff told grand jurors. “I try to take care of problems … It’s your money … It’s taxpayer money that he was taking from … It’s a very bad situation.”
This sheriff appears to be using a criminal grand jury as an HR department. I guess that’s one way around the civil service rights of deputies.
New lawsuit filed against the WVSP for unreasonable search and seizure in violation of the Fourth Amendment of the US Constitution
We filed suit yet again against the West Virginia State Police for what appears to be another pattern and practice of unconstitutional conduct. The WVSP is tasked by statute with “verifying” sex offender registry addresses. As we allege, the only time this particular client was ever “verified” was when they were seeking to search for unrelated evidence without the bother of swearing under oath to a magistrate or judge that probable cause exists for a search warrant.
In other words, do registered sex offenders who are not on parole, probation, or supervised release, have any Fourth Amendment rights not to have their home searched at the will of the WVSP with no warrant? I don’t think so.
I got fourth place in the open heavyweight division. But there were some very big guys in my weight class. It was great fun.
On Monday, I had the pleasure of sitting through the sentencing of Betty Brown, who is the defendant we sued in the elderly abuse civil case that won a good-sized jury verdict back in December of 2014. The sentencing made the news. She was Vice President of a local bank where my elderly client kept her modest amount of money (before it was stolen).
Mrs. Brown pled no contest to a felony and chose not to speak in her own defense. What could go wrong? Both the prosecutor and the judge threw the proverbial book at her.
In any event, I am proud that the justice system has sent a message to other sharks out there who are thinking about stealing from the elderly. That elderly person might walk into my office one day and expose you. And I will take you down, just like Betty Brown.
I ended up getting much of the stolen money back, all of which went directly towards my client’s care.
Me with the family following the jury verdict:
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:
- 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