WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

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

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

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