WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

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

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

Police Chief we sued in federal court is the subject of a scathing TV news report today.

Awhile back, we filed a federal civil rights lawsuit against the City of Hinton and its police chief, Derek Snavely.  Mr. Snavely was no stranger to the media, even then. Here is the Complaint:

McPherson v. Snavely, et al.

Well, he is back in the news this morning.  Check out this TV news clip from WVNS.

WVNS – Hinton police chief on leave; forced to turn in service weapon, badge and police cruiser

August 16, 2018 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Lawsuits, Lawyers, Media Coverage | Leave a comment

What kind of paperwork is generated during 40 years of wrongful imprisonment?

This is it.  This is the paperwork generated by the justice system during 40 years of wrongful imprisonment.

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People assume that people convicted of murder get a large amount of appeals, and have judges looking over their case to make sure everything was constitutional and fair . . . .  Nope.  This folder contains no actual direct appeal of James McClurkin’s murder conviction.

His lawyer who represented him during the 1977 trial which convicted him dropped the ball completely.  He filed the notice of intent to appeal, but never actually followed through.  Apparently he was waiting on payment from Mr. McClurkin’s family prior to filing the appeal.  However, James’ father, who had hired him initially, passed away two weeks prior to the trial, and had spent all he had on James’ trial.  The result was that Mr. McClurkin did not receive a direct appeal for his murder conviction.  The State of South Carolina filed a motion to dismiss the notice of intent to appeal based on the failure to take any action beyond filing the notice.  So the “appeal” was dismissed forever.  What followed is paperwork which mostly discusses legal technicalities such as failure to comply with deadlines, and the discussion of rules which forbid inmates from bringing up old issues.  It doesn’t appear that Mr. McClurkin ever had the assistance of a lawyer at all up until 1992, when the real murderer confessed.  Every document James filed throughout his incarceration always mentioned first that James had exhausted his appeals.  Well, he never got an appeal, and it is a fiction – a lie – that he exhausted his appeals.

The notoriously racist trial judge, Judge Moss, who in 1985 created “controversy” by using the “N word” from the bench (in response to black protestors following the conviction of a black man accused of shooting a white man – ironically similar to James’ conviction).   Here is an article I tracked down from January 28, 1985, as it appeared in the South Carolina Herald-Journal.

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This file contains almost no discussion of the evidence upon which James’ murder conviction stands.  At one point, a lawyer for the South Carolina Appellate Public Defender’s Office filed a motion to withdraw from representing James due to the case being “without merit.” He didn’t bother to mention the evidence from the 1970’s, or the lack thereof.  He didn’t even look into the 1992 confession and testimony of the real murderer.  This was 2004.  James would spend another 12 years in prison.

This should be a real wake-up call.

July 6, 2018 Posted by | Civil Liability, Evidence, Governmental Liability, Judges, Judicial Misconduct, Lawsuits, Lawyers, McClurkin Case, Media Coverage, Murder, Police Misconduct, Prosecutors, Trials, Wrongful Imprisonment | Leave a comment

State trooper we sued in the news yet again

Apparently former State Trooper, Ralph Justus, made the news yet again for being the subject of a sexual assault lawsuit.  Here is my last post about him.

WV state trooper accused of sexual assault in lawsuit

A State Police spokesman said last week that Justus no longer is employed by the State Police. An agency spokesman said Monday that his termination was the product of a completed internal investigation, and that a criminal investigation is underway.

Keep in mind that when we first took this guy on, he had been named State Trooper of the Year by the American Legion.  Sometimes it just takes one victim to take the first step, and other victims come out of the woodwork.  The system did not flush this guy out by themselves.  It took outside lawyers, such as myself, to investigate him and file civil lawsuits.

May 1, 2018 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Lawsuits, Lawyers, Media Coverage, Police, Police Misconduct, Uncategorized | Leave a comment

Search and Seizure Case From Berkeley County In The News

Last week we filed a lawsuit in federal court on behalf of John W. Orem and his wife.  The Complaint alleges three civil rights violations: an illegal search, an illegal arrest, and an illegal violation of the right to privacy.

Former Berkeley County sheriff candidate sues state police

Former Berkeley Co. sheriff candidate sues police over drug arrest

Former Berkeley County Sheriff candidate files civil lawsuit against police

In the lawsuit, John Orem and his wife, Sher Orem, claim Trooper Matthew D. Gillmore, on Aug. 2, 2016, conducted an unreasonable search and seizure at their home in violation of the Fourth Amendment.

The civil suit requests the court to award damages against the defendants in an amount to be determined at a trial by jury for past, present and future medical expenses; past, present and future pain and suffering; loss of enjoyment of life; psychological and emotional distress; reasonable attorney fees and costs, as well as other compensatory and punitive damages.

John Orem told The Journal Tuesday that he did not want this to go this way.

“I made a complaint with (West Virginia State Police) and tried to get them to handle the issue within their department,” Orem said in an emailed statement. “Then after a year and never sending anyone out to look into the issue or speak to anyone, they said they see nothing wrong.

“So although all officers are human and make mistakes, I believe that we need to trust our law enforcement to self-police and correct errors. If they can’t do that, they force us to sue. Since the (West Virginia State Police) have immunity to civil suits, this is the only way to have them correct issues and help them to provide a better service to our community.”

Copy of the Complaint

This is the photo which was uploaded to social media, while Mr. Orem was still sitting handcuffed inside the Martinsburg state police detachment.  We allege this was taken and uploaded by employees of the West Virginia State Police in order to destroy Mr. Orem’s reputation and political campaign.

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The strategy worked well.  The arrest quickly made national headlines.

A few examples:

Sheriff’s candidate in West Virginia charged in heroin case – CBS News

Candidate For Sheriff In West Virginia Charged With Heroin Possession Authorities said they found John Orem unresponsive in his home. – Huffington Post

Mr. Orem was kept sitting on the bench for several hours prior to his arraignment – even though a magistrate was available to arraign him.  The Complaint alleges the delay was due to the fact that the State Police contacted the media, in order to be sure they were waiting with cameras to catch Mr. Orem being perp-walked into the courthouse, with the arresting officer proudly displaying his catch.  Here is a photo of the next morning’s newspaper:

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After both the prosecutor and the defense attorneys agreed that the arresting officer had performed an illegal search, and asked the court to dismiss the charge against Mr. Orem, this arresting officer wrote a letter to the court objecting to the dismissal.  The court ignored the letter and dismissed the charge.

April 11, 2018 Posted by | Civil Liability, Elections, Governmental Liability, Lawsuits, Media Coverage, Police, Police Misconduct, Prosecutors, Searches and Seizures, State Agencies | Leave a comment

Excessive Force Lawsuit Filed Against Logan County Deputy

The Charleston Gazette-Mail today reported on a lawsuit we filed late last week against a Logan County police officer for the use of excessive force against Mark Messer.

Here is the article:

Lawsuit: Logan deputy’s excessive force led to 17-day coma, long-term injuries

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Mark Messer was never convicted of any crime.  However, during his arrest, his life was changed forever due to having his skull crushed on the asphalt by a Logan County, West Virginia deputy.

When Johnson began to walk Messer to his police vehicle, Messer turned his head and asked Johnson, “Who do you work for, the State Police, or the county?” according to the lawsuit.

The deputy “aggressively” replied, according to Messer’s lawsuit, then tripped Messer and pushed him to the ground. “Witnesses observed Johnson purposefully slamming plaintiff into the ground, in an apparent action in response to plaintiff’s question,” the lawsuit states.

 

With his hands cuffed behind him, Messer fell face-first onto the ground, as witnesses heard his head and face “loudly crack” on the ground and saw him “immediately start bleeding profusely,” according to the lawsuit.

 

Here is a previous post on the plight of Mark Messer, from back when he was still in a coma:

In the news: our client is on life support after use of force during an arrest

Katrina Seabolt says she witnessed a Logan County Sheriff’s deputy throw her brother to the ground about three weeks ago….

Mark Messer, 54, has been on life support in a Charleston hospital ever since an incident on Mud River Road in Logan on Aug. 18.

“It’s under investigation right now,” Logan Chief Deputy Mike Mayes said on Friday. “Whenever it involves use of force, this office investigates it.”….

Messer’s family has hired Monroe County lawyer John Bryan. He said last week that no one from the sheriff’s department has reached out to the family since the incident.

“My goals are to find out what happened,” Bryan said. “I want any documentation from law enforcement about the incident.”

Mark Messer was forced to go through an extended period of rehabilitation.  He had to relearn how to walk; how to talk.  Still, he never received any communications from Logan County.  Not an apology.  Not a conclusion to their “investigation.”  Not compensation for his severe life-long medical injuries.  Fortunately, he has the option of going to the federal courts to seek justice.

April 10, 2018 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Lawsuits, Media Coverage, Police, Police Misconduct, Uncategorized | Leave a comment

US Supreme Court takes up an excessive force case

Yesterday the United States Supreme Court issues a per curium opinion in a police excessive force 1983 lawsuit out of Arizona.  The case was Kisela v. Hughes.

There was no new law created.  Essentially, the SCOTUS was beside themselves that the 9th Circuit Court of Appeals got the case so wrong.  The SCOTUS reiterated some of the basic tenants of excessive force case law and explained why the officer could not be held liable under the circumstances.

A police officer shot a woman holding a knife.  The woman was acting erratically, was within striking distance of a bystander, and ignored orders to drop the weapon.  Pretty standard case for qualified immunity.  Take the knife out of the equation, and it would be a different situation.  Take the bystander out of the equation, and it would also be different (because there was a chain link fence between the officer and the suspect).

April 3, 2018 Posted by | Civil Liability, Excessive Force, Governmental Liability, Lawsuits, Police Misconduct | Leave a comment

So you want to sue the police, Part II

Back in 2010, I wrote a post entitled, So you want to sue the police . . . . , and it has had an overwhelming number of reads.  Well, it’s been 8 years since then, and I’ve learned a lot  I’ve tried cases since then.  Appealed cases.  Settled cases.  Won cases.  Lost cases.  I’ve reviewed probably thousands of allegations.  Since this appears to continue to be a popular topic, here is part II.

  •  Have documentation.  When people call our office about allegations of police misconduct, and/or civil rights violations, we first ask them if they have any documentation.  Here is what we need:
    • Police Report.  This could be what is referred to in West Virginia as a “Criminal Complaint.”  Or, it could be any other official report containing a narrative, or version of the events, written by a police officer.
    • Medical Records.  If the complaint is that injuries were caused by the police, we would like to see documentation of those injuries.  Was there a hospital visit, or doctor’s office visit pertaining to the injuries?  If so, you are entitled to the records, and we will need to review them.
    • Photographs.  Again, if the complaint is that injuries were caused by the police, we would like to see photographs of the injuries.
    • Video Footage.  It goes without saying that if video footage exists of the incident, we want to see it.  It may be the case that footage exists, but the police are in possession of the video.  In West Virginia, and most states, there is a right on behalf of private citizens to request that footage.  This is called a Freedom of Information Act Request, or FOIA request.   If criminal charges were filed, a defendant is going to have a right to receive a copy of the footage.
  • Don’t Wait.  In West Virginia, you generally have 2 years to file a lawsuit based on a civil rights violation.  Other states may have different statutes of limitations periods, even though they are all the same type of claim under federal law.  In some cases it could be less.  Don’t wait 2 years and then call us the day before the statute of limitations expires.  We will not take the case.  Yes, people do this.
    • Witnesses.  Witness recollection of incidents gets worse over time.  Witnesses may die and their testimony may be lost forever.
    • Evidence.  Some evidence disappears with time.  911 records and transcripts may disappear in as little as 30 days if not requested.
  • Do not make a formal complaint to the police.  At least not without acting through competent legal counsel.  Police should never investigate themselves. But that’s exactly what happens in West Virginia, and many other states.  In regards to the West Virginia State Police, in particular, and other larger agencies, this is a huge mistake that people make.  Why?
    • Witness Intimidation.  If an individual makes a formal complaint, for instance to the State Police, they are presented with a piece of paper they are forced to sign which warns them that they will be prosecuted if they are found to have given false information.  This is purely a threat meant to having a chilling effect and to scare off victims of police misconduct who would otherwise complain.
    • Interrogation.  The next thing that happens is, an “investigator” from the agency will want to interview you.  This is not an actual unbiased interview.  This is an interrogation.  They will, perhaps secretly, record the questioning.  Without a lawyer present, a detective will perform an interrogation. They will ask you leading questions.  They will essentially take your deposition, but without your lawyer present.  You will not be given a copy of the recording.  The agency will save it, and later use the recording against you in court.  I have seen it happen many times.
    • Building a defense.  The “investigator” will obtain information from you – not for the purposes of determining whether the complaint is justified, but for the purposes of undermining your allegations.  If you tell them a particular person witnessed the event, they can now go confront that person.  They can tailor their defense to counter your exact allegations.  I am generalizing.  Of course some investigators are honest and will do the right thing.  But for the purposes of protecting yourself, you should assume they are not.
    • Photographs.  If the complaint pertained to excessive force, or resulted in injuries, the “investigator” will take photographs of you.  These photographs may be taken at a time when injuries have become less visible, or healed.  They may be taken in such a way as to minimize their appearance, rather than to document the truth.
  • Call an attorney experienced in civil rights law as soon as possible.  You can’t call just any lawyer for a civil rights case.  The area of civil rights, and in particular police misconduct, is a small niche area of the practice of law. Most licensed lawyers will be inexperienced in civil rights law.  There are only a handful of competent civil rights plaintiffs’ lawyers in West Virginia who regularly handle these types of cases.  I often get referrals from other lawyers across West Virginia who encounter clients with civil rights complaints. There are special aspects of the law in these types of cases that have nothing to do with automobile accident cases, or even criminal defense cases.  Make sure whichever lawyer you call can demonstrate a record of successfully handling these types of cases.  For years, I have been teaching other lawyers, government leaders, and law enforcement administrators, seminars on the law of police liability and civil rights litigation.

March 29, 2018 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Lawsuits, Lawyers, Police, Police Misconduct, Searches and Seizures, Trials | Leave a comment

New Summary of the Sawyer v. Asbury Opinion

I just went back through the Sawyer v. Asbury opinion in this post on the Use of Force Source.  If you have followed the case on this blog, it’s interesting to take a step back and analyze the Court’s ruling as it finds its place in Fourth Circuit excessive force case law.

April 9, 2014 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Judges, Juries, Lawsuits, Lawyers, Police, Police Misconduct, Trials | Leave a comment