WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

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