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

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

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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

Another civil rights case settled….

This was actually a few weeks back and was posted on our Facebook.  For posterity, I’ll post here as well….

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This is my client, Robert McPherson. Today we reached a settlement in our lawsuit against the City of Hinton, WV and former police chief, Derek Snavely.

This case was on the front page of the Charleston Gazette-Mail a month or so back, which published a full copy of the federal lawsuit:

https://www.wvgazettemail.com/…/article_13d20637-f1d0-5c6e-…

“John Bryan, a Union-based attorney representing Robert McPherson, a man who filed a lawsuit in the Southern District of West Virginia against Snavely and the city of Hinton alleging excessive force by Snavely, said he wasn’t surprised to hear about the former police chief’s troubles of three weeks ago. Bryan said he had heard several people voicing concern about Snavely for a while.

“This is kind of a problem West Virginia has — if someone leaves a position, even if they should [leave] for a good reason, it’s cheaper to hire them on somewhere else instead of hiring someone who doesn’t have that certification,” Bryan said. “Unless that certification is gone, they are probably going to be picked up somewhere else.”

In his lawsuit, McPherson alleges that, in January 2016, Snavely punched him in the face — unprovoked — before proceeding to “violently beat” him outside a Kroger store.”

More about the lawsuit, and Snavely, here, on my blog:

https://wvcriminaldefenseattorney.wordpress.com/…/mcpherso…/

The terms provide for an award of $75,000.00 to Mr. McPherson. It’s always easier to make a client happy when you get to give him money, instead of the other way around.
😄 I’m glad it all worked out in the end.

Update: Charleston Gazette-Mail article: https://www.wvgazettemail.com/…/article_304c067d-079f-5ae8-…

October 23, 2018 Posted by | Excessive Force, Governmental Liability, John H. Bryan, Lawsuits, Lawyers, Media Coverage, Police, Police Misconduct, Searches and Seizures | Leave a comment

The moment I saved this young man’s life….

 

Somebody sent me a copy of audio which was recorded almost a decade ago at a criminal felony jury trial.  It is the audio of my closing argument to the jury in a First Degree Arson Trial in February of 2010.  Wow, it brought back memories.  Here is the last 11 and a half minutes of it.  Listen to how I hand the case over to the jury at the end…..   I got that from Gerry Spence.

People ask lawyers all the time: do you ever think your client is guilty? The worst possible scenario as a trial lawyer is to be responsible for defending someone who is actually innocent, and screw something up.  This young man was innocent.  Yet he was facing 20 years in prison.  His family came to me and asked me to save their son.  He had done a stupid, ridiculous thing, and had given a false confession to a girl over the telephone, for some reason thinking it would impress her.  He bragged that he started a fire which had burned down a big barn, which had been a local mystery up to that point.  But he didn’t actually do it.  But…. he was caught on a recorded phone conversation stating that he did.

He was charged with first degree arson.  I ended up proving to the jury that he had lied about it, and that he was actually innocent.  Talk about a difficult task.  But I did it.  This was the fastest I’ve ever had a jury return a verdict.  It took maybe 6 or 7 minutes.  This guy/kid could have spent the last decade sitting in prison….

Choosing a lawyer is an important decision.  With this audio, you can hear an example of me speaking for somebody in court, in a situation when that individual’s liberty was at stake, and see the end result.  Pretty cool.

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October 18, 2018 Posted by | Arson, John H. Bryan, Juries, Lawyers, Trials | Leave a comment

West Virginia State Police and asset forfeiture in the news this weekend. The ugly truth.

The Charleston Gazette-Mail had an article this weekend on a New Jersey couple who were pulled over by a West Virginia State Trooper on their way to a casino.  They had $10,000.00 with them.  The state trooper took all but $2.00 and sent them on their way.  He also took their cell phone (presumably to search it for evidence of a crime, such as drug dealing).

This highlights what is perhaps the ugliest, most unconstitutional, most nazi-ish, thuggish, and un-American behavior engaged-in by the government at the present time: asset forfeiture.  This is the way it works.  You get pulled over for a traffic offense.  You have cash on you, or in the vehicle.  The officer seizes the cash, because they consider the cash itself to constitute evidence of being a drug dealer.  They don’t have to charge you criminally whatsoever.  They then serve you with a notice that, if you want to redeem your cash, you have to contact the court and the prosecuting attorney, and formally claim the cash.  In so doing, the process implies that have to explain to the court, and the prosecutor, where you obtained the money, etc.  The theory is, that drug dealers are not going to claim the money.  The the law enforcement agency gets to keep it, and the prosecutor’s office gets 10%.  Talk about a conflict of interest . . . .

In reality, the law provides that in order to keep the currency which was seized from the citizens, the State, pursuant to W. Va. Code § 60A-7-703(a)(6) (1988), is required to demonstrate by a preponderance of the evidence that there is a substantial connection between the property seized and an illegal drug transaction.  This finding is in addition to the initial finding of probable cause that an illegal act under the drug law has occurred. See Syllabus Point 4 of State v. Forty-Three Thousand Dollars, No. 31224 (W. Va. 11/26/2003) (W. Va. 2003).

Only after the State has filed a civil forfeiture petition, and met its’ burden of proof by a preponderance is the citizen required to prove how he/she/they came into ownership of the currency. Id. at 6.

In the case of the couple in the Gazette article, Dimities Patlias and  Tonya Smith, they got nowhere until they contacted the media.  The reporter, Jake Zuckerman, started making some phone calls, including to the prosecuting attorney, and voila, their money was returned in full.  Now the couple is rightly pissed off, and much of the public is learning about this un-American scheme for the first time.

The Prosecuting Attorney of Jefferson County, who returned the money is a good guy.  Kudos to him for doing the right thing after looking into it.  I actually had an asset forfeiture case with him previously, and he returned the money in that case as well.  I also represented some of his family members in a real estate related jury trial, which we won, thankfully.  This is a problem in a national scale.  This occurs everywhere, and is practiced by the federal government as well.

August 27, 2018 Posted by | Corruption, Media Coverage, Police, Police Misconduct, Searches and Seizures, Vehicular Crimes | Leave a comment

McPherson Case makes front page news this morning

This morning, investigative reporter Catie Coyne had a great article on the front page of the Charleston Gazette-Mail about the McPherson case, and the firing of Hinton police chief, Derek Snavely.

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I’ve been doing this for awhile.  Usually after the news dies down, a fired police officer will quietly appear somewhere else – usually a small municipality or county somewhere. I’ve seen it happen again and again.  When the reporter called me about the case, I shared my frustration with her.

The Hinton police chief — who is the target of a federal lawsuit filed in December alleging that he used excessive force on a Summers County man by beating him and hitting him three times with a stun gun without provocation — was terminated this week based on his “job performance,” according to Hinton City Councilman Larry Meadow….

John Bryan, a Union-based attorney representing Robert McPherson, a man who filed a lawsuit in the Southern District of West Virginia against Snavely and the city of Hinton alleging excessive force by Snavely, said he wasn’t surprised to hear about the former police chief’s troubles of three weeks ago. Bryan said he had heard several people voicing concern about Snavely for a while.

“This is kind of a problem West Virginia has — if someone leaves a position, even if they should [leave] for a good reason, it’s cheaper to hire them on somewhere else instead of hiring someone who doesn’t have that certification,” Bryan said. “Unless that certification is gone, they are probably going to be picked up somewhere else.”

August 23, 2018 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Lawsuits, Media Coverage, Police, Police Misconduct | Leave a comment

My early training as a trial attorney

I recently found some old photos of my experience as a captain of the UCF Trial Team, one of the best mock trial programs in the country in the early 2000’s.

https://www.facebook.com/JohnBryanLaw/posts/1052250548310140

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August 22, 2018 Posted by | John H. Bryan, Trials | Leave a comment