WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

McClurkin Petition filed before the South Carolina Supreme Court

Here is a copy of the petition recently filed with the South Carolina Supreme Court, in an attempt by the South Carolina Actual Innocence Project to reverse the murder conviction of James McClurkin.  This will actually be the FIRST TIME an appellate court has ever examined the facts, or even been presented with the facts, surrounding James’ conviction.

McClurkin Petition to the SC Supreme Court

If the petition is granted, and James’ conviction is reversed, it will re-set the statute of limitations on many of his civil claims.  If not, the civil claims will face substantial hurdles.  Let’s hope that for once, the criminal justice system in South Carolina does right by Mr. McClurkin.

August 10, 2018 Posted by | McClurkin Case, Wrongful Imprisonment | Leave a comment

Forget what you heard: the reality of the law of self-defense with a firearm in West Virginia. What does “castle doctrine” or “stand your ground” actually mean in WV?

Case studies are important aspect of learning and evaluating the law.  Being a Second Amendment supporting state, most West Virginians have heard one thing or another about the “castle doctrine,” or about what the law is regarding self defense with a firearm in West Virginia.

You can read the statutes, and you can read the case law.  You can read advice from anonymous sources on the internet.  But perhaps the best method is to go directly to a case-in-point.  A true nightmare scenario involving a home invader, a shooting, and a prosecution by overzealous authorities.

This case demonstrates a real life scenario.  It shows how the media and law enforcement can shift the narrative very quickly.  Most importantly, it shows the actual charge to the jurors who decided the man’s fate.  I obtained a copy of the jury charge, including the jury instructions, from the circuit clerk’s office, and have uploaded them to this site.  They are linked at the bottom of the page.  I also am providing a complete narrative showing some of the media reports, and how they shifted very quickly, turning on the homeowner.  It also shows how law enforcement used the media against the homeowner, poisoning the potential jury pool.

In March of 2015, a man intoxicated on various drugs, stripped off his clothes and attempted to forcibly enter the home of a family in Huntington, West Virginia.  The homeowner, Micah LeMaster, shot the intruder three times with his handgun.  He then followed the intruder outside towards the sidewalk, where he fired three more shots, resulting in the death of the home invader.  It was undisputed that this was a home invasion.  However, the media and the police quickly turned on the homeowner, resulting in an arrest, charge of first degree murder and a $700,000.00 bond.  The trial took place in November of 2016, resulting in a complete acquittal following his assertion of self defense and West Virginia’s “castle doctrine” law.  

One particular TV station’s website has their reporting of the incident, which in itself is educational.  From oldest to most recent:

LeMaster Media Narrative

If you really want to educate yourself on self defense law in West Virginia, read the actual law given to the LeMaster jury from the presiding trial judge.

The Actual Charge To the LeMaster Jury

The law given to the LeMaster jury contained the following specific instruction on the law pertaining to the West Virginia “Castle Doctrine,” in part:

An intruder is a person who enters, remains on, uses, or touches land or chattels in another’s possession without the possessor’s consent.

Our society recognizes that the home shelters and is a physical refuge for the basic unit of society, the family.  A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.  The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.

The violent and unlawful entry into a dwelling with intent to injury the occupants or commit a felony carries a common sense conclusion that he may be met with deadly force.

The source for this is the fact that West Virginia is a “stand your ground state,” and does not require a person to retreat before using deadly force:

(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary. 
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section. 
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker. 
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force. 

W. Va. Code § 55-7-22(a)-(d). 

Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances: 

– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony; 

– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; 

– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force. 

W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012). 

Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g). 

[As quoted from the West Virginia Gun Law CLE 2017]

I hope this clears up some of the confusion out there regarding West Virginia’s self defense laws, the practical application of what they mean, and how the “castle doctrine” and “stand your ground” actually work.

 

August 3, 2018 Posted by | Media Coverage, Police, Prosecutors, Self Defense, Trials, West Virginia Gun Laws | Leave a comment