I started a new website called “Use of Force Source” at UseofForceSource.com. The purpose is to establish an online resource to discuss and compile Fourth Circuit federal case law, and U.S. Supreme Court case law on the use of physical force – both police situations and self defense situations. I have already listed a bunch of black letter law on excessive force in the Fourth Circuit (so Virginia, West Virginia, Maryland, North Carolina and South Carolina). It will be a blog format, and will be specific to use of force cases. My intention is to post about specific cases, going over the facts, as well as the law. I also like to listen to the oral argument audio since it gives you much more insight into the case and the reasoning behind the Court’s decisions.
I already posted my first post today, discussing the November of 2013 Fourth Circuit opinion from Ayala v. Wolfe, which was a police shooting case.
Apparently a West Virginia lawyer was charged with being an accessory after-the-fact in relation to a New Year’s Eve shooting in Charleston, which is a felony. This was reported by WCHS, as well as the Charleston Gazette. Allegedly, after his friend shot a guy after an argument over ordering a pizza, the lawyer took the guy’s cell phone and instructed him to run. And then he was allegedly uncooperative with police when they asked him the identity of the shooter.
It was reported that all of this can be viewed on surveillance footage:
“Conrad is in trouble, because police said he can clearly be seen on surveillance video taking Underwood’s cell phone, which is considered evidence, from the scene and telling the suspect to run.”
So my initial thought is, how can you view what someone is saying on surveillance footage? You can’t. We pretty much know the footage does not contain audio – since that in itself would constitute felony illegal wiretapping in West Virginia, since it would be capturing conversations for which no party has consented.
The police are the first to complain about surveillance footage when they are accused of misconduct, noting that you can’t tell everything from the video. Well you certainly cannot tell what someone is saying to another. How does a video prove that the lawyer was instructing the shooter to flee? And if you can view the cell phone being handed to the lawyer, how can you tell that the lawyer asked for it. And if a cell phone is handed to you in such a situation, does that make you a felon? What if you are a lawyer potentially representing the individual. Can you preserve evidence yourself? Are you compelled to turn over your own evidence to police at their demand? The West Virginia Rules of Criminal Procedure don’t provide for that. In fact, a criminal defendant is not compelled to provide discovery to the prosecution until and unless he or she requests discovery from the State.
As with any of the decaying “cities” in this country where you have arrogant and hypocritical leadership, the City of Charleston was quick to jump into attention-whore mode and to engage in their first attempts at poisoning the jury pool:
“It’s really surprising that someone in a position of authority, and all that he is responsible for, to participate in this criminal conduct,” Lt. Steve Cooper, with Charleston police said.
. . .
Charleston Mayor Danny Jones said he plans to file an ethics complaint with the state bar, against Conrad.
What ever happened to “innocent until proven guilty”? Is it ethical for a police officer, or mayor, to go onto TV and tell the public that an individual who has been charged, and who is presumed innocent, has committed criminal conduct? Or that the individual has abused a position of authority? Or that the person is unethical?
I’m not passing judgment on the lawyer’s actions one way or the other since I don’t know all of the facts. After all, isn’t that what police say when one of their own are accused of misconduct? Well, it’s under investigation and we don’t know all of the facts. So what if he did take the guy’s cell phone and told him to run? What negative consequences did that have? Who is a victim to the lawyer’s alleged crime? None and nobody.
There was an article yesterday in the Charleston Gazette about a gun owner in Logan, WV who stopped a home invasion in progress at his neighbor’s home.
He shot one of the burglars, and held the other at gunpoint until police arrived. This brings up a common topic of interest to people – especially in West Virginia, which has one of the largest percentages of gun owners per capita (we are no. 5 I believe).
When can you legally shoot someone in a home invasion scenario?
In the end, it comes down to whether or not you reasonably believe that you, or someone else (anyone else – it doesn’t have to be a family member) is in imminent danger of death or serious bodily harm. People tend to get obsessed with the “castle doctrine.” Just understand that to mean, that if you are in your home, you have no legal obligation to run out the back door, if given the opportunity. It all comes down to whether you believe you, or someone else, is going to be killed or seriously hurt if you don’t take action.
There is no guarantee that, even if you do believe you’re about to be killed, and you fire your weapon, that the shooting will be deemed justified. Your fear must have been reasonable – based on something that your peers would likely also consider as significant enough to cause them fear as well.
Everyone should think about these types of things ahead of time. You should draw a mental line in the sand regarding when you shoot, and when you do not shoot. What is enough? What if someone in a ski mask is lurking outside your house? What if someone in a ski mask is outside your house with a gun in their hand? What if someone is burglarizing your vehicle in your driveway? What if someone is burglarizing your neighbor’s home? Or car?
There is not necessarily a right answer for these types of scenarios. But you should never pull the trigger unless you really do fear for a life. It’s not that they don’t deserve a dirt nap. If it were up to me, all thieves entering your property at night should be executed. But unfortunately it’s not.
Many people in West Virginia do believe that if someone is breaking into their car at night, that they can run outside and shoot them. Unfortunately, here we are not allowed to use deadly force in order to protect property. For this reason, electric companies are not supposed to keep lines active for the sole purpose of deterring trespassers. Now if the car burglar approaches you, or if he has a weapon and has the imminent ability to use it against you – that is different.
1. It’s always going to be more difficult to justify a shooting where the person shot was “unarmed”. I knife, gun, or even a stick could count as a weapon. It is never a good idea to provide your own weapon after the shooting. The facts are what they are. Never try to change them.
2. It’s always going to be more difficult to justify a shooting where the person shot was shot in the back. This would indicate that the person was walking, or running, away from you. That causes a problem because at that point it’s hard to argue that your fear was reasonable when the threat was leaving. It’s also hard to argue that the threat was imminent. But, if the person shot was in your house, it’s probably going to be a good shoot, because the threat was still in your home. Generally when we shoot someone, our natural tendency is to keep shooting. So there have been cases where the first shot was in the front of the person’s body, and several more shots went into the guy’s back as he turned to run away. Good shoot, but bullets in the back are always going to make things more difficult.
3. In your home, it’s game on. Like I said, draw a line in the sand. If someone maliciously invades your home, you generally can eliminate the threat with extreme prejudice. But it still has to be reasonable. You wouldn’t want to shoot a drunk neighbor who wandered in the wrong house – or a family member sneaking back in from a night of partying. For this reason, always have a good home defense light. You have to know your target – and what’s behind it.
It’s outside the home, where most of the grey areas live. So be very careful venturing outside your castle with a gun in the dark of night. Know where your line in the sand is.
As for the shooting in the article, the 800 pound gorilla is the fact that was left out of the story. Did the shooter believe that the neighbors were in the home at the time he saw the attempted home invasion? If so, good shoot. If not, he may have a more difficult time due to the fact that we are not allowed to use deadly force in order to protect (only) property.
4. Lastly, all gun owners who anticipate ever having to use their firearms in self defense should get some formal training, such as in a defensive handgun class. A basic concealed weapons class does not qualify as training. This is me at a handgun class a couple of weeks ago. It’s a lot of fun, and it’s part of our obligation as citizens under the 2nd Amendment.
The Fourth Circuit issued a decision bolstering our 2nd Amendment rights. The case is styled USA v. Nathaniel Black, out of the Western District of North Carolina. Essentially, a guy who was a convicted felon was open carrying a firearm. He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm. But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?
The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity. The importance of this decision is that it protects our 2nd Amendment rights. If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc. The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).
Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
Several years ago, and again recently, I discussed my frustration at the lack of impartial coverage of high profile criminal cases in West Virginia by TV news media. If you watch our local news around here you will notice two things: lots of mugshots and lots of interviews of police officers. That’s just about all you will see. Of course there are two sides to every story, but you will never, never hear them. You will only hear the law enforcement side.
Recently I became involved in just such a case. The media got involved and started broadcasting stories that just did not portray the situation accurately. They were causing a big stink and provoking people to call the prosecutor and law enforcement to demand that the book be thrown at my client.
The client is a good person; well-liked by just about everybody who knows him. He has never been in trouble before. He was studying to become a police officer. In fact, he was days away from getting a job as a police officer when the news station decided to ruin his life. He was volunteering at a local school with the marching band. He has a concealed weapon permit and had a pistol in his truck. His truck broke down on school property and he had to hitch a ride home with a friend. So he made the mistake of taking the pistol out of his truck and taking it with him. He made the further mistake of showing his friend the pistol as he was taking it out.
Subsequently, the principal was apparently reviewing surveillance footage of the school grounds, and observed the gun. Band director gets fired for having an unauthorized volunteer. The media picks up on it, and eventually people think we have just narrowly-avoided a Columbine incident. A crazy man wielding a gun at a local school. Somebody has to pay.
I encountered the TV reporter in the courthouse. She informed me that she had uncovered the identity of the gun-wielding volunteer and was going to run a story on it that evening. I then offered to give an interview to try and set the record straight. So I did, and I explained the accurate circumstances, on video. Of course when the story was run that night there was a lengthy interview of a sheriff’s deputy explaining that my client had committed a felony and they were going to charge him for it. They also broadcasted his name, age, and the location of his residence. And that was it. Nothing else. No explanation from me. They chose not to include any of my interview. Of course I wasn’t surprised. That is how it usually goes. When your client is charged they show his mugshot and broadcast his name and other information. When he is acquitted it goes unmentioned.
The reason is this: if viewers were to hear my explanation, they would say, “Oh, what’s the big deal about that? They are going to charge this kid with a felony and ruin his life over that?” The story would lose its sensationalism.
Certainly the argument could be made that law enforcement and the prosecutor have no choice. The guy was caught on video possessing a firearm (unloaded) on school property. There is a statute in West Virginia that makes it a felony, with a 2 to 10 prison sentence and no opportunity at probation or parole for possessing a gun on school property, whether or not unloaded, or on any property upon which a school function is occurring. To contrast that with other crimes, that is the same penalty for wanton endangerment with a firearm, which is like shooting a gun at somebody and missing. Brandishing a firearm, which is like pointing a gun at somebody but not firing, is only a misdemeanor with a maximum sentence of one year. So to a certain extent we can blame the legislature for creating an overbroad and unfair law. And I do blame them. Most of them are too cowardly to stand up for common sense and freedom. Attach a school or domestic violence to any vice or allegation of misconduct, and you end up with a capital crime. But I think there is also a place for mercy.
The police do not have to charge, and the prosecutor does not have to prosecute. They have that discretion notwithstanding the legislature. Not every crime has to be punished – nor should it be. Many people would disagree with that. But let those persons throw the first stones who have not themselves committed a crime without being caught or without punishment. In the end it is up to people like me to be the voice of reason to a jury. We are the last and best hope and saving the lives of good people like this young man. It is a heavy burden. You will see things differently when it is your son or daughter, who is a good person, but who has made some sort of mistake and ends up on the receiving end of the criminal justice system. It’s not hard to do. There are so many criminal laws that I do not know them all. Do you think this kid thought that he may have been committing a felony when he took the gun out of his truck? Of course not, yet we are ruining his life as a result. There is a place for mercy and compassion in the court system. But no legislator, prosecutor, sheriff, or judge gets elected by promising mercy and compassion.
From the Beckley Register-Herald:
Note: Isn’t it just like big-government politicians, such as we have here in West Virginia, to give people the right to carry concealed weapons, and then apply a bunch of arbitrary rules that nobody will know or be able to follow? That’s just what West Virginia needs, more rules. Maybe we could get those signs that the State of Virginia has when you drive into it listing everything that the all-knowing politicians have declared as illegal. – John H. Bryan, West Virginia Criminal Defense Attorney.
Legislation on guns causing stir
CHARLESTON — Concealed weapons are making quite a bang in this legislative session.
One such proposal would conceal more than sidearms — it would keep a prying public from knowing just who has secured such permits. But that bill caused such a stir the House of Delegates pulled it off the calendar.
Over in the Senate, two other proposals embracing guns have surfaced.
Sen. Shirley Love, D-Fayette, is attempting to get the National Park Service to either recognize visitors who have concealed weapons permits — including non-residents — or post signs warning them their firearms aren’t allowed on federal land.
In his own measure, Sen. Clark Barnes, R-Randolph, wants to clear up language the attorney general’s office feels is a bit murky on the reciprocal agreements West Virginia holds with other states.
“We’re making lots of progress,” Barnes says. “But the attorneys from the attorney general’s office working on this say we need to clean up in our reciprocity to be able to open it up for other states’ licensees to be able to carry here, or our licensees to be able to carry in other states.”
Love says about 16 states honor West Virginia’s right to keep a hidden weapon on one’s person.
“We’re spending mega dollars to advertise for people to come into Fayette County and see ‘Wild, Wonderful West Virginia,’ and the New River Gorge, ride the whitewater or rock climb,” he says.
“But if you take that pistol off Fayette Station and go down into the gorge, and the NPS would stop you for speeding, they can say to you, ‘Do you have a weapon in your automobile? Do you have a weapon on you?’”
Since firearms are disallowed on federal property, the senator says, any visitor toting one inside the gorge could wind up behind bars, even though West Virginia recognizes such permits in the other states.
In his resolution, now before the Senate Natural Resources Committee, the senator is asking the NPS to at least post warning signs at park entrances if it cannot honor concealed weapons permits.
“That way you could separate the weapon and ammunition, put your weapon in the trunk of the car and lock it, and put the ammo in the glove compartment,” Love says.
“But there are no signs now. This could be entrapment.
“You could wind up probation for a year. It could cause you to lose your pistol permit and bring a fine.”
Love says a bill is pending in Congress to alter NPS regulations so that concealed weapons permits would be honored in the park system.
“But in the meantime, in places like the New River Gorge, let’s at least put signage up and amply warn people coming in from other states.”
The House bill was intended to protect victims of domestic violence by keeping secret their addresses after they file for concealed weapons permits. But concerns raised by the West Virginia Press Association over the public’s right to read public documents prompted the Democratic leadership to pull the bill.
Majority Leader Joe DeLong, D-Hancock, says the proposal can yet find its way back on the special calendar with two weeks left in the session if it can be tweaked to appease the Fourth Estate.
A year ago, the Legislature altered the state’s reciprocity bill, and the attorney general’s office began taking steps to conform, Barnes said.
“What we had to do in our original language is pretty much that their system had to be identical to our system. But there are some other states that don’t necessarily have an identical system but they may have a stronger system that operates differently. So we’re just trying to clean it up to make it more reciprocal with more states.”
From the Beckley Register-Herald:
Note: What public interest is there in the names and addresses of law-abiding citizens who obtain concealed weapons’ permits? And if there is legitimate public interest, then why must the addresses be included? Why not start publishing the names and addresses of welfare recipients? Taxpayer money is being funneled to it, government bureaucrats are administering it, and members of the public are receiving it. The answer: the Press supports expanded welfare programs, but does not support the 2nd Amendment. – John H. Bryan, West Virginia criminal defense attorney.
Concealed weapons bill in limbo in House
By Mannix Porterfield
CHARLESTON — Delegate Rick Moye packs a hidden piece for his personal protection but is ambivalent about a proposal to deny public access to concealed weapons permits.
Moye’s reservations aren’t unique in the House of Delegates.
This week, the Rules Committee yanked from the active House calendar legislation that would make it no one’s business just who is toting a firearm under a court-approved permit. The bill was offered by Delegate Bill Hamilton, R-Upshur, with 10 co-sponsors, among them Delegates Mike Burdiss, D-Wyoming, Joe Talbott, D-Webster, and Mike Porter, R-Mercer.
There is a chance, however, the measure might be tweaked so its scope is narrowed to the very people it was intended to protect — victims of domestic violence.
“I can see both sides of that story,” says Moye, a school bus driver and body shop owner in Raleigh County.
“I can understand why you wouldn’t want that to be public knowledge for everyone to know. On the other hand, it’s a public record. When do you draw the line that you can conceal information?”
Obviously, the Rules Committee had problems wrestling with that as well, especially after the West Virginia Press Association reared itself into the issue, Majority Leader Joe DeLong, D-Hancock, said Thursday.
“I’m not sure where we’re at in the process, but I hope we can go back and revisit that bill and put an exemption in it when it comes to victims of domestic violence,” he said.
“I think that was the original intent of the bill. I think that’s what spurred this legislation.”
Domestic violence victims secured concealed weapons permits, only to have their addressed revealed to the reading public by newspapers, the majority leader said.
“We may be able to carve out an exemption for those people without taking away what’s considered to be the general right of the public to have access to this information,” DeLong said.
“The problem is in trying to strike a balance. There’s a certain segment of people that we’re trying to help. We still need to help those people and protect them. At the same time, we want to recognize the freedom of the press in having this type of information available as it should be in most other cases.”
Moye said he has no problem with people knowing he is legally armed. Without elaborating, the delegate said he got the permit for his personal protection.
“I’m a firm believer in my rights to keep and bear arms,” Moye said.
“I’ll not shy away from that at all. I just feel like it is a right, a privilege that I have, and I will exercise that privilege. And I totally support the Castle Doctrine. Common sense tells me that if someone is going to come and harm me, I don’t want to run from them.”
- 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