WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

Forget what you heard: the reality of the law of self-defense with a firearm in West Virginia. What does “castle doctrine” or “stand your ground” actually mean in WV?

Case studies are important aspect of learning and evaluating the law.  Being a Second Amendment supporting state, most West Virginians have heard one thing or another about the “castle doctrine,” or about what the law is regarding self defense with a firearm in West Virginia.

You can read the statutes, and you can read the case law.  You can read advice from anonymous sources on the internet.  But perhaps the best method is to go directly to a case-in-point.  A true nightmare scenario involving a home invader, a shooting, and a prosecution by overzealous authorities.

This case demonstrates a real life scenario.  It shows how the media and law enforcement can shift the narrative very quickly.  Most importantly, it shows the actual charge to the jurors who decided the man’s fate.  I obtained a copy of the jury charge, including the jury instructions, from the circuit clerk’s office, and have uploaded them to this site.  They are linked at the bottom of the page.  I also am providing a complete narrative showing some of the media reports, and how they shifted very quickly, turning on the homeowner.  It also shows how law enforcement used the media against the homeowner, poisoning the potential jury pool.

In March of 2015, a man intoxicated on various drugs, stripped off his clothes and attempted to forcibly enter the home of a family in Huntington, West Virginia.  The homeowner, Micah LeMaster, shot the intruder three times with his handgun.  He then followed the intruder outside towards the sidewalk, where he fired three more shots, resulting in the death of the home invader.  It was undisputed that this was a home invasion.  However, the media and the police quickly turned on the homeowner, resulting in an arrest, charge of first degree murder and a $700,000.00 bond.  The trial took place in November of 2016, resulting in a complete acquittal following his assertion of self defense and West Virginia’s “castle doctrine” law.  

One particular TV station’s website has their reporting of the incident, which in itself is educational.  From oldest to most recent:

LeMaster Media Narrative

If you really want to educate yourself on self defense law in West Virginia, read the actual law given to the LeMaster jury from the presiding trial judge.

The Actual Charge To the LeMaster Jury

The law given to the LeMaster jury contained the following specific instruction on the law pertaining to the West Virginia “Castle Doctrine,” in part:

An intruder is a person who enters, remains on, uses, or touches land or chattels in another’s possession without the possessor’s consent.

Our society recognizes that the home shelters and is a physical refuge for the basic unit of society, the family.  A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.  The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.

The violent and unlawful entry into a dwelling with intent to injury the occupants or commit a felony carries a common sense conclusion that he may be met with deadly force.

The source for this is the fact that West Virginia is a “stand your ground state,” and does not require a person to retreat before using deadly force:

(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary. 
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section. 
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker. 
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force. 

W. Va. Code § 55-7-22(a)-(d). 

Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances: 

– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony; 

– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; 

– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force. 

W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012). 

Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g). 

[As quoted from the West Virginia Gun Law CLE 2017]

I hope this clears up some of the confusion out there regarding West Virginia’s self defense laws, the practical application of what they mean, and how the “castle doctrine” and “stand your ground” actually work.

 

August 3, 2018 Posted by | Media Coverage, Police, Prosecutors, Self Defense, Trials, West Virginia Gun Laws | 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

Our new mission: South Carolina man wrongfully imprisoned for murder from 1977 through 2016

We are pleased to have been hired to represent a man named James McClurkin.  James was convicted of murder in 1977.  In late 2016, law enforcement appeared at his parole hearing and testified that the old murder case was reopened, and that James was innocent.  James was released.  He was 63 years old, and had been in South Carolina prisons since the age of 18.

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South Carolina is one of the states which does not provide compensation to innocent people who are wrongfully imprisoned and then later exonerated.  Hopefully that legislation can soon be enacted in South Carolina.  But until that happens, we are working hard to compensate Mr. McClurkin for the terrible injustice which occurred in his case.

Here are some of the media accounts of his release from prison:

Chester man paroled after 39 years for crime he denies. Were wrong men convicted?

Judge says Chester men must go to S.C. Supreme Court to seek exoneration for murder

‘I am free’: Chester man in prison 43 years goes home, still hoping to be exonerated

‘The air. It smells different. Like freedom.’ Man freed after 39 years in prison for murder police now say he didn’t commit

The sheriff said he didn’t do it and he was released from prison but stigma impossible to shake.

James McClurkin and his co-defendant were convicted of the 1973 murder of laundromat attendant Claude Killian.  James, and his co-defendant Ray Charles Degraffenreid, both African Americans, were convicted under the brutal 1970’s Chester County, South Carolina justice system, which involved, among other things, a presiding trial judge who was known for using the “N word” while on the bench.

The real murderer actually confessed in 1992, which was corroborated by the fact that he was convicted of a similar murder, and by the fact that he had no alibi on the night of the murder.  However, the justice system once again failed James, and he was sent back to prison for another 25 years. Now law enforcement reopened the case, and have concluded that the real murderer was telling the truth.  How did this occur?  Well, among other issues, the mother of the real murderer was apparently the maid of the prosecutor who prosecuted James and Ray Degraffenreid.

This sounds like a novel, but it’s not.  It’s real, and it was only uncovered because a courageous new sheriff was willing to give someone the benefit of the doubt, and double check an old case.  Follow along as we jump into this case and work to reverse the wheels of justice.

IF YOU LIVE IN SOUTH CAROLINA, PLEASE CONTACT YOUR POLITICIANS AND EXPRESS YOUR SUPPORT IN PLACING THESE CASES BEFORE THE GOVERNOR OF SOUTH CAROLINA.  BOTH JAMES MCCLURKIN AND RAY CHARLES DEGRAFFENREID SHOULD BE PARDONED BY THE GOVERNOR OF SOUTH CAROLINA.

You can donate in order to assist with James McClurkin’s living expenses through the following site:

https://www.youcaring.com/jamesmcclurkin-815274

June 22, 2018 Posted by | Civil Liability, Corruption, John H. Bryan, Judges, Judicial Misconduct, Lawsuits, Lawyers, Legislation, McClurkin Case, Media Coverage, Murder, Police, 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

Lawsuit filed against Senator Ojeda

You might have read about this case in the news, as did I, this past week:

Logan Man Fired After Posting Video of Ojeda

Fortunately I was subsequently hired by David Woolsey, the man who lost his job, to get involved.  I worked quickly to draft and file a federal lawsuit on behalf of David Woolsey and against West Virginia Senate member, and congressional candidate, Richard Ojeda.

Here is the video that started it all.

 

 

Here is the response video posted by Sen. Ojeda later that night, and then subsequently deleted:

 

 

The Complaint alleges retaliation by a public official against a private citizen’s First Amendment political expression.

Here is a copy of the Complaint which was filed yesterday:

David Woolsey v. Richard Ojeda, U.S. District Court for the Southern District of West Virginia, Civil Action No. 2:18-cv-00745

Media Reports:

My radio interview with The Tom Roten Morning Show

Charleston Gazette-Mail

WV Record.

WOWK TV

Herald-Dispatch

May 1, 2018 Posted by | Civil Liability, Elections, John H. Bryan, Lawsuits, Media Coverage, 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

Several of my Federal Lawsuits Against West Virginia State Police Troopers In the News

A couple of days ago, the Charleston Gazette-Mail did an expose’ story on a series of 4 lawsuits against a West Virginia State Trooper.  3 of those lawsuits were my cases. They are now settled.

Accusations, lawsuits mount against WV State Police trooper

Four men have sued the same West Virginia State Police trooper in federal court over the past 18 months, alleging he beat them and caused broken ribs, concussions and spinal damage.

Senior Trooper Ralph Justus has been on paid administrative leave for a year, as he is the subject of an active internal investigation, according to State Police. No allegations in the lawsuits line up with the March 2017 administrative change.

Two of the men who sued Justus, Aaron Akers and Antonio Tolliver, settled their lawsuits last December for a combined total of nearly $190,000. Justus allegedly beat the two men in the hallway of the State Police detachment in Welch, beyond the range of building security cameras. Their settlements note they are resolutions of disputed claims, and the defendants are not admitting liability.

Another alleged victim of a hallway beating from Justus, Michael Ferguson, signed a settlement agreement for $75,000 earlier this month. A judge still needs to formally dismiss the case.

A funny part of the story, at least in a sad-funny sort of way, is that the defendant trooper was named “Policeman of the Year” by a local American Legion post.  This was for 2017.  According to the article, he was on administrative leave for  9 months of 2017, presumably due to allegations of misconduct.  Low bar, I guess.

Frank Cooley, a member of the post, spearheaded efforts to find a state trooper to award. He said while he did not remember Justus by name, the post generally makes its picks by calling a branch’s commandeer, asking for recommendations and voting on the shortlist internally. Two lawsuits had been filed against Justus months before the post issued its award.

Frank, you had ONE JOB.

 

March 26, 2018 Posted by | Civil Liability, Excessive Force, John H. Bryan, Lawsuits, Media Coverage, Police, Police Misconduct, Uncategorized | Leave a comment

Monroe County Jury Verdict in Elder Financial Abuse Case

Last week I tried a four day jury trial in the Circuit Court of Monroe County, West Virginia, for a 98 year old lady named Isadora Beavers. On July 23, 2013, she walked into my office in her black and white polka dot dress, and hat, and demanded to see me. She told me that she had a power of attorney whom she suspected was stealing from her. She told me that her power of attorney was also the Vice President of her bank, and that she had been unable to get copies of her bank statements. That same day I helped her revoke the power of attorney and, at her request, demanded copies of ten years of her bank records from her bank.

Shortly afterwards she fell and was admitted into the hospital. I visited her in the hospital and told her what I had found in the past few years of her bank records – primarily lots of “cash” checks. I asked her if she spent much cash. She told me no, that she grew up in the Great Depression era and was thrifty with her money. She did admit that she indulged in getting a fancy haircut every once and awhile. And she liked to eat at Shoney’s. I told her that a deed existed giving her power of attorney joint ownership of all of her real estate, with a right of survivorship. She said, no, that property was supposed to go to her family after her death.

Not long after she began to decline pretty quickly. She started to suffer from dementia. Family members arrived in the area and petitioned the court to become her guardians and conservators, which was granted. They later contacted me and asked me to get the real estate back so they could finance the best possible medical care for Isadora. We demanded the return of the real estate. The response from the ex-power of attorney was that she would deed the property back, but wanted a release from liability in exchange for it. Not surprisingly, this offended pretty much all of Isadora’s relatives, and they gave me the go-ahead to sue her.

Last week, we presented the overwhelming evidence to the jury. They returned with a plaintiffs’ verdict on all counts: fraud, breach of fiduciary duty, conversion and unjust enrichment. They awarded $326,771.06 in damages against the defendant, Betty B. Brown. That included $175,000.00 of punitive damages.

In my closing argument, I asked the jury to send a message that financial abuse of the elderly will not be tolerated. I believe they sent that message loud and clear.  By the way, all money collected is going to Isadora to fund her medical care and expenses.  The defendant is going to be reasonable for paying all of our attorney fees and expenses as well.

Media Reports:

Former bank exec is liable in elder abuse suit

Jury awards $325K to elderly victim of financial abuse

State woman to pay $325,000 in elder abuse case

In the courtroom with some of Isadora Beavers’ nieces and nephews immediately following the verdict:

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December 19, 2014 Posted by | Civil Liability, Corruption, Embezzlement, Financial Abuse of Elderly, Fraud, John H. Bryan, Juries, Lawsuits, Lawyers, Media Coverage, Trials | Leave a comment

Update, and some additional thoughts, on prosecutor mess in Kanawha County

Today there was an article in the Charleston Gazette about the Mark Plants mess in Kanawha County.

On Wednesday, Judge Duke Bloom barred Prosecutor Mark Plants’ office from handling cases involving child abuse and neglect, violent crimes against children by their parent, guardian or custodian and criminal violations of protective orders . . . .

The ruling is in response to a petition from the city of Charleston asking that Plants be disqualified from hearing cases brought by the Charleston Police Department.

Lawyers with the state Office of Disciplinary Counsel filed a petition with the state Supreme Court asking that Plants be immediately suspended or disqualified from prosecuting domestic-violence cases involving parents and minor children. The ODC’s petition said Plants’ belief that the allegations against him aren’t a crime creates a conflict of interest for his office. The Supreme Court has scheduled a hearing on the matter for May 5.

So you have a city applying to a judge to disqualify the elected prosecutor from hearing certain cases, based on pending criminal charges.  Domestic violence accusations pop up from time to time in the personal lives of police officers.  The MO, in my experience, is that they are disarmed and given a desk job until the situation is resolved.  I wonder if the employer, e.g., the City of XYZ, has ever sought to protect the rights of the alleged victims/accusers in domestic violence cases where the investigating officers have had their own history of accusations?  And do they have standing to even have a say in the matter?  After all, the county prosecutor is a position elected by the citizens of the county.  Also, what about all the people who have previously been prosecuted for these types of crimes by Mr. Plants, or his office?  Do they now have some right to have their case reopened, or thrown out?

April 25, 2014 Posted by | Domestic Violence, Judges, Media Coverage, Police, Prosecutors | Leave a comment