WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

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.

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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

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.  You generally have 2 years to file a lawsuit based on a civil rights violation.  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

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

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

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

Homeowner related shooting case

On the Use of Force Source, I just posted my write-up on a fairly recent Fourth Circuit case involving a homeowner who was shot by police while investigating a disturbance outside his home.  If you’re interested:

George Cooper, Sr. v. James Sheehan, et al.

I also recently posted a write-up on another recent Fourth Circuit opinion involving excessive force and bystander liability (e.g., where a group of officers allegedly beat someone and the victim doesn’t know who did what):

Marquis L. Stevenson v. City of Seat Pleasant, Maryland.

April 2, 2014 Posted by | Civil Liability, Excessive Force, Lawsuits, Police, Police Misconduct | Leave a comment

New Online Resource for Use of Force law

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.

March 20, 2014 Posted by | Appeals, Civil Liability, Concealed Weapons, Excessive Force, John H. Bryan, Lawyers, Police, Police Misconduct, Self Defense | Leave a comment

Matthew Cole federal lawsuit settled

For those of you who like to follow cases and not just read headlines about the allegations, I wanted to provide an update on the Matthew Cole case.  It was recently settled, having just been finalized yesterday.  It was originally filed in December 13, 2012.  That is about average from filing to settlement/trial.  It was scheduled to go to trial on March 13, 2014.

All discovery had been completed, including many depositions.  And all dispositive motions, and pretrial motions, had been briefed.  So anyone thinking that these are quick and easy cases to settle would be mistaken.  Most of these cases (and this one was certainly no exception) are hard-fought and highly contested.

March 6, 2014 Posted by | Civil Liability, Excessive Force, Governmental Liability, John H. Bryan, Lawsuits, Police, Police Misconduct | Leave a comment

Federal civil rights lawsuit filed out of Mercer County, WV, alleging denial of medical care for an epilepsy victim

View this document on Scribd

January 31, 2014 Posted by | Civil Liability, Denial of Medical Care, Excessive Force, Governmental Liability, John H. Bryan, Lawyers, Police, Police Misconduct | Leave a comment