WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

New Civil Rights Case Filed out of Fayette County: Sizemore vs. Members of the WV Drug Task Force

Here is the copy of a civil rights lawsuit we filed in the U.S. District Court for the Southern District of West Virginia late last week.  It has now been assigned to Judge Goodwin in Charleston, WV. The case comes out of Fayette County, West Virginia, and involves a criminal investigation and prosecution gone awry.

Sizemore Complaint

My client, Keith Sizemore, had his home searched, via a SWAT team style raid, while he and his 16 year old son were home.  In the subsequent federal prosecution, the federal judge presiding over the case ended up suppressing evidence obtained during the search, and issuing an order finding that members of the Drug Task Force had lied to the Magistrate Court of Fayette County in order to obtain the search warrant for Mr. Sizemore’s residence.  It’s really an astonishing order:

Sizemore Suppression Order

The order shines the light on what has become a common scenario: a drug raid with some sort of seizure of illegal drugs, and then there is a civil forfeiture proceeding in WV State Court, in which the owner of the items has all the items confiscated under color of law.  In this case, our lawsuit alleges that the state civil forfeiture machine had already seized and became the new owner of Mr. Sizemore’s home and 2017 pickup truck, before the criminal indictment was even served on him.  However, interestingly, the criminal prosecution exploded with the suppression order finding that the task force members lied to obtain the warrant.

I wonder what will happen?  We shall see…..

September 10, 2019 Posted by | Civil Liability, Drugs, Governmental Liability, John H. Bryan, Judges, Lawsuits, Magistrates, Searches and Seizures, Suppression, Uncategorized | Leave a comment

Open-Carry of Firearms in WV in 2019: “Am I being detained?”

This is the current state of open-carry law in West Virginia (in my opinion), and it’s tricky relationship with a police officer’s right to do a “Terry” frisk under certain instances, as of February of 2019. Note: government lawyers do, and will, disagree with my analysis.  But mine’s supported by the law. However, proceed at your own risk, and the law may change after I write this, especially since litigation is ongoing….

1. If you’re in a vehicle, and an officer has a suspicion you may be armed, or sees that you’re open-carrying, you may be frisked and temporarily disarmed; 

2. If you’re not in a vehicle subject to a traffic stop, a police officer must have some reasonable articulable suspicion that you are engaged in criminal activity in order to seize and disarm you. Open-carrying a firearm alone is not justifiable suspicion to perform an investigative detention, unless the officer has information that you are a prohibited person unable to possess a firearm.

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Many of you have probably seen the recent lawsuit I’ve been involved with in the Michael Walker v. Putnam County case where we sued over the violation of Mr. Walker’s right to open carry a firearm in West Virginia.

The defense from the government so far is that they are allowed to perform what’s called a “Terry” stop and frisk when they see someone with a gun.  Just to clarify the law, since they obviously misunderstood then, and continue to misunderstand.

A person’s Fourth Amendment rights under the U.S. Constitution to be free from unreasonable search and seizure are triggered whenever a “seizure” occurs.

When does a seizure occur?

A person is “seized” within the meaning of the Fourth Amendment if, “ ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they “touched the defendant or made any attempt to physically block his departure or restrain his movement”; (v) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”; (vi) whether the officers informed the defendant that they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature”; and (vii) “whether, if the officer requested from the defendant … some form of official identification, the officer promptly returned it.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Gray, 883 F.2d at 322–23.

The Fourth Circuit has noted that though not dispositive, “the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis.” United States v. Black, 707 F.3d 531, 538 (2013) (citing Weaver, 282 F.3d at 310 (emphasis added)). In Black, the Court found that, “[i]t is clear that when Officer Zastrow expressly told Black he could not leave, Black was already seized for purposes of the Fourth Amendment.” Black at 538 (emphasis original).

When can a “seizure” be legal as a justified “Terry” Stop and Frisk under Terry v. Ohio?

Federal case law has long been clear that the police officers cannot perform a “Terry stop” of a person lawfully open-carrying a firearm for the purposes of checking his ID and running a background check to determine whether the person is a prohibited person, or to otherwise disarm him, without more.  Although brief encounters between police and citizens require no objective justification, United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002), it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868 (1968). 

To be lawful, a Terry stop “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752 (1980).  The level of suspicion must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009).  As such, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. 1868. Moreover, the Fourth Circuit has already made it very clear that in states where open carry is legal, such as West Virginia, if officers have no individualized information that a particular individual who is lawfully open-carrying is a prohibited person, the mere exercise of their rights by open-carrying “cannot justify an investigatory detention.”  Indeed, the Court held that “Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 540 (2013) (quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).

Occupants of a vehicle subject to a lawful traffic stop are a different analysis altogether, and are more likely to be subject to a Terry seizure.  An officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene. Robinson at 696 (2017 case) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

The importance of the Black case to open-carry rights in our circuit:

In 2013, Judge Gregory of the U.S. Fourth Circuit Court of Appeals, whom I have had the honor of appearing in front of, issued an opinion in the case of United States v. Black, 707 F.3d 531, 540 (2013), which is central to the rights of West Virginians to open carry firearms.  Although that case was from North Carolina, it applies equally here.  In his opinion, he admonished law enforcement for regularly abusing the Terry Stop procedure to violate the rights of lawful gun owners:

At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir.2011); Massenburg, 654 F.3d 480;United States v. Digiovanni, 650 F.3d 498 (4th Cir.2011); and United States v. Foster, 634 F.3d 243 (4th Cir.2011). Although factors “susceptible of innocent explanation,” when taken together, may “form a particularized and objective basis” for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion. 

Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See Powell, 666 F.3d at 188 (“[A] prior criminal record is not, standing alone, sufficient to create reasonable suspicion.” (citation omitted)). Moreover, we “ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the individualized suspicion requirement “have been upheld only in ‘certain limited circumstances,’ where the search is justified by ‘special needs’ ”—that is, concerns other than crime detection—and must be justified by balancing the individual’s privacy expectations against the government interests. Id. (quoting Chandler v. Miller, 520 U.S. 305, 308, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)); see Treasury Employees v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that suppress the normal requirement of individualized suspicion. 

Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14– 415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded. 

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections. 

United States v. Black, 707 F.3d 531, 540 (2013).

 

February 21, 2019 Posted by | Governmental Liability, John H. Bryan, Judges, Lawsuits, Police, Police Misconduct, Searches and Seizures, Vehicular Crimes, West Virginia Concealed Carry Laws, West Virginia Gun Laws, Wrongful Arrest, Wrongful Imprisonment | 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

West Virginia State Police and asset forfeiture in the news this weekend. The ugly truth.

The Charleston Gazette-Mail had an article this weekend on a New Jersey couple who were pulled over by a West Virginia State Trooper on their way to a casino.  They had $10,000.00 with them.  The state trooper took all but $2.00 and sent them on their way.  He also took their cell phone (presumably to search it for evidence of a crime, such as drug dealing).

This highlights what is perhaps the ugliest, most unconstitutional, most nazi-ish, thuggish, and un-American behavior engaged-in by the government at the present time: asset forfeiture.  This is the way it works.  You get pulled over for a traffic offense.  You have cash on you, or in the vehicle.  The officer seizes the cash, because they consider the cash itself to constitute evidence of being a drug dealer.  They don’t have to charge you criminally whatsoever.  They then serve you with a notice that, if you want to redeem your cash, you have to contact the court and the prosecuting attorney, and formally claim the cash.  In so doing, the process implies that have to explain to the court, and the prosecutor, where you obtained the money, etc.  The theory is, that drug dealers are not going to claim the money.  The the law enforcement agency gets to keep it, and the prosecutor’s office gets 10%.  Talk about a conflict of interest . . . .

In reality, the law provides that in order to keep the currency which was seized from the citizens, the State, pursuant to W. Va. Code § 60A-7-703(a)(6) (1988), is required to demonstrate by a preponderance of the evidence that there is a substantial connection between the property seized and an illegal drug transaction.  This finding is in addition to the initial finding of probable cause that an illegal act under the drug law has occurred. See Syllabus Point 4 of State v. Forty-Three Thousand Dollars, No. 31224 (W. Va. 11/26/2003) (W. Va. 2003).

Only after the State has filed a civil forfeiture petition, and met its’ burden of proof by a preponderance is the citizen required to prove how he/she/they came into ownership of the currency. Id. at 6.

In the case of the couple in the Gazette article, Dimities Patlias and  Tonya Smith, they got nowhere until they contacted the media.  The reporter, Jake Zuckerman, started making some phone calls, including to the prosecuting attorney, and voila, their money was returned in full.  Now the couple is rightly pissed off, and much of the public is learning about this un-American scheme for the first time.

The Prosecuting Attorney of Jefferson County, who returned the money is a good guy.  Kudos to him for doing the right thing after looking into it.  I actually had an asset forfeiture case with him previously, and he returned the money in that case as well.  I also represented some of his family members in a real estate related jury trial, which we won, thankfully.  This is a problem in a national scale.  This occurs everywhere, and is practiced by the federal government as well.

August 27, 2018 Posted by | Corruption, Media Coverage, Police, Police Misconduct, Searches and Seizures, Vehicular Crimes | Leave a comment

U.S. Supreme Court Case on Cell Phone GPS Data

Today the SCOTUS released a decision pertaining to cell phone GPS data obtained without a warrant.  I wish this case existed back when I was litigating the constitutionality of warrantless GPS trackers on police vehicles, which ultimately was decided against us.

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as inJones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information ob- tained from Carpenter’s wireless carriers was the product of a search.

The opinion describes the nature of what makes such a “search” a violation, and unreasonable:

As with GPS information, the time- stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, reli- gious, and sexual associations.” Id., at 415 (opinion of SOTOMAYOR, J.). These location records “hold for many Americans the ‘privacies of life.’ ” Riley, 573 U. S., at ___ (slip op., at 28) (quoting Boyd, 116 U. S., at 630). And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools. With just the click of a button, the Government can access each carrier’s deep repository of historical location information at practically no expense.

This essentially mirrors the arguments we made in the Asbury vs. Ritchie County case.

In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container inKnotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thor- oughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. See id., at ___ (slip op., at 19) (noting that “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admit- ting that they even use their phones in the shower”); contrast Cardwell v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion) (“A car has little capacity for escaping public scrutiny.”). Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

Justice Alito dissents and argues that such information should be available without a warrant. I am at a loss to understand how a justice alleged to be a strict constitutionalist sides with the government in a dispute about whether a warrant should be obtained?  Shouldn’t someone who respects the original intent of the constitution always side with a warrant over a warrantless search?  After all, warrants are a piece of cake for law enforcement to obtain.  But at the very least, they have to create a paper trail.

 

June 22, 2018 Posted by | Searches and Seizures, 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.

IMG_5936 (002)

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

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

Civil Rights Trial in Federal Court in Charleston This Week

Starting tomorrow, the Carpenter civil rights case will be tried before a jury in federal court in Charleston.

The U.S. District Court for the Southern District of West Virginia already issued an order finding that the Carpenters civil rights were likely violated, and ordering the case to trial:

Carpenter v. Perry (S.D. W. Va., 2017)

December 4, 2017 Posted by | Civil Liability, John H. Bryan, Searches and Seizures, Trials | Leave a comment

Fourth Circuit Open Carry Decision

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).

March 20, 2013 Posted by | Concealed Weapons, Police, Police Misconduct, Searches and Seizures, Self Defense, Suppression, West Virginia Concealed Carry Laws, West Virginia Gun Laws | 3 Comments

New West Virginia Search and Seizure Statute

New legislation has been passed in West Virginia dealing with search and seizure.  It was pushed by the ACLU, who of course were only concerned for minorities having their rights disregarded.  But the fact is that everyone, across the board, has had their rights trampled when it comes to traffic searches and seizures.

It essentially provides that no longer can law enforcement merely testify after-the-fact that the vehicle owner consented to a search of his or her vehicle.  This, by the way, is pretty much the foundation for 80% of criminal prosecutions.  Either people are too dumb/ignorant/naive  to realize that they can say “no” to the officer who is asking to search their vehicle, or the cop just “testi-lies” after-the-fact that consent was given, when in fact it was not.  Who do you think the judge is going to believe, the law enforcement officer, or the guy who had marijuana/concealed weapon, etc. in his car?

Pursuant to this new statute, consent must now be recorded, either in writing through an approved form, or through an audio/video recording.  It must be communicated to the suspect that he or she has the right to refuse the search.  It also provides that he or she can revoke their consent at any time.  Though this may be dicey, because the revocation would not be recorded unless there was a dash cam, or other recorder, recording the audio.  The one exception for the recordation of consent is if there is an issue of officer safety.  Basically, if the cop can articulate some justification for believing there may be some weapon that could potentially harm him or her, then the statute flies out the window.

Remember, states are generally free to provide greater protection of civil liberties than is provided for in the U.S. Constitution (i.e., the US Supreme Court), which West Virginia has done here.  However, states are not free to provide less protection.  Hence, West Virginia could not pass a statute (that would be constitutional) which would allow officers to search vehicles without probable cause or consent.

The statute will take effect January 11, 2011.

Here is the statute:

A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all relating to searches of motor vehicles by law- enforcement officers; establishing criteria; and requiring rules.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all to read as follows:

ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-10. Motor vehicle searches.

(a) A law-enforcement officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the law-enforcement officer:
(1) Has probable cause or another legal basis for the search;
(2) Conducts a search for weapons based on an articulation of a reasonable fear for the officer’s safety or the safety of others;
(3) Obtains the written consent of the operator of the vehicle on a form that complies with subsection (b), section eleven of this article; or
(4) Obtains the oral consent of the operator of the vehicle and ensures that the oral consent is evidenced by an audio and video recording that complies with subsection (c), section eleven of this article.
(b) This section takes effect on January 1, 2011.

§62-1A-11. Rules for certain evidence of consent to vehicle search.

(a) To facilitate the implementation of section ten of this article the Director of the Governor’s Committee on Crime, Delinquency and Corrections, in consultation with the Division of Motor Vehicles, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code to establish the requirements for:
(1) A form used to obtain the written consent of the operator of a motor vehicle under section ten of this article; and
(2) An audio and video recording used as evidence of the oral consent of the operator of a motor vehicle under section ten of this article.
(b) At a minimum, the rules adopted under subsection (a) of this section must require the form to contain:
(1) A statement that the operator of the motor vehicle fully understands that the operator may refuse to give the law- enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is freely and voluntarily giving the law-enforcement officer consent to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) A description of the motor vehicle to be searched; and
(6) The name of each law-enforcement officer conducting the stop or search.
(c) At a minimum, the rules adopted under subdivision (2), subsection (a) of this section must require the audio and video recording to reflect an affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the operator may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving the law-enforcement officer consent to search the motor vehicle; and
(3) The operator of the motor vehicle was informed that the operator may withdraw the consent at any time during the search.
(d) The Director of the Governor’s Committee on Crime, Delinquency and Corrections shall adopt the rules required by this section no later than December 31, 2010.

NOTE: The purpose of this bill is to provide procedures to protect motor vehicle operators with regard to searches of their motor vehicles by law-enforcement officers.

§§62-1A-10 and 62-1A-11 are new; therefore, strike-throughs and underscoring have been omitted.

April 14, 2010 Posted by | Searches and Seizures, Suppression, Vehicular Crimes | 4 Comments