WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

Lawsuit filed against Ritchie County on behalf of former deputy

As was reported in the Charleston Gazette today, on Friday, together with Ron and Scott Windom of Windom Law Offices in Harrisville, WV, we filed a lawsuit against Ritchie County, including the Sheriff of Ritchie County, and the Chief Administrator.

The Gazette reported:

A former Ritchie County sheriff’s deputy has sued the sheriff who fired him, claiming his civil rights were violated when the sheriff installed a GPS tracking device on his police cruiser without a warrant.

James Asbury, 49, of Berea, filed the lawsuit against Ritchie Sheriff Bryan Backus and Ronald Barniak, a former sheriff in Ritchie County and Backus’ chief administrator. In the complaint, which was filed in Ritchie Circuit Court on Friday, Asbury claims that Backus and Barniak have a history of violating deputies’ constitutional right to be free of unreasonable search and seizure.

Yes, even though the County owns a police cruiser in the possession of a deputy, federal law provides that a GPS search of that vehicle cannot be performed without a warrant.  Police officers have constitutional rights just like the rest of us.

What is even more interesting about this story is that my client, Jim Asbury, was a former defendant in an excessive force 1983 lawsuit I filed on behalf of Brian Sawyer – which was perhaps my most infamous case.  But it doesn’t stop there.  Opposing counsel, at least at the pre-litigation stage, is the same lawyer who represented Deputy Asbury at the two jury trials, and two Fourth Circuit appeals against me in that case.  So, same police officer involved.  Same two lawyers.  But now the one suing him is representing him.  And the one defending him is opposing him.

A little more from the Gazette article:

Asbury’s lawsuit also claims that the sheriff told grand jurors about the locations Asbury traveled while off duty and reminded them that their taxes pay for Asbury’s expenses.

“You guys need to know that I think everybody here knows me, and they know that I handle problems. Look at my record with employees in the past,” the lawsuit alleges the sheriff told grand jurors. “I try to take care of problems  It’s your money  It’s taxpayer money that he was taking from  It’s a very bad situation.”

This sheriff appears to be using a criminal grand jury as an HR department.  I guess that’s one way around the civil service rights of deputies.


May 24, 2016 Posted by | Uncategorized | Leave a comment

New lawsuit filed against the WVSP for unreasonable search and seizure in violation of the Fourth Amendment of the US Constitution


We filed suit yet again against the West Virginia State Police for what appears to be another pattern and practice of unconstitutional conduct.  The WVSP is tasked by statute with “verifying” sex offender registry addresses.  As we allege, the only time this particular client was ever “verified” was when they were seeking to search for unrelated evidence without the bother of swearing under oath to a magistrate or judge that probable cause exists for a search warrant.

In other words, do registered sex offenders who are not on parole, probation, or supervised release, have any Fourth Amendment rights not to have their home searched at the will of the WVSP with no warrant?  I don’t think so.

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May 13, 2016 Posted by | Uncategorized | 1 Comment

Competed in another WV Strongman Contest


I got fourth place in the open heavyweight division.  But there were some very big guys in my weight class.  It was great fun.

April 21, 2016 Posted by | Uncategorized | Leave a comment

Elderly Abuse Defendant We Sued is Sent to Jail

On Monday, I had the pleasure of sitting through the sentencing of Betty Brown, who is the defendant we sued in the elderly abuse civil case that won a good-sized jury verdict back in December of 2014.  The sentencing made the news.  She was Vice President of a local bank where my elderly client kept her modest amount of money (before it was stolen).

Mrs. Brown pled no contest to a felony and chose not to speak in her own defense.  What could go wrong?  Both the prosecutor and the judge threw the proverbial book at her.

In any event, I am proud that the justice system has sent a message to other sharks out there who are thinking about stealing from the elderly.  That elderly person might walk into my office one day and expose you.  And I will take you down, just like Betty Brown.

I ended up getting much of the stolen money back, all of which went directly towards my client’s care.

Me with the family following the jury verdict:

IMG_4623 copy

April 21, 2016 Posted by | Uncategorized | Leave a comment

Elton Wine lawsuit against the West Virginia Police settled

We settled the Elton Wine lawsuit against the West Virginia state police on the eve of trial.  Part of the settlement includes the re-training of all West Virginia State Police officers on the knock and announce requirements under federal constitutional law.  The other part of the settlement is the payment of $85,000.00 by the state police’s insurance carrier.

The settlement is important because there is no longer any doubt that law enforcement in West Virginia have a legal obligation to “knock and announce” prior to entering a home pursuant to a search warrant.  They can no longer perform a no-knock entry without either a no-knock warrant signed by a judge, or exigent circumstances.

Media reports:

The State Journal

December 29, 2015 Posted by | Uncategorized | Leave a comment

Wrongful Death Section 1983 Lawsuit Involving the West Virginia State Police and “No-Knock” home entries

I don’t believe I ever posted anything about this case. It involves the death of Elton Wine, a 71 year old man who was suspected of having a fugitive in his home. A search warrant was obtained for his home and a “no-knock” entry was made by the WVSP “SRT” (SWAT) team into his home. He died shortly thereafter while in police custody. The fugitive was not found in his home. The case is currently in litigation.

Important in this case is the fact that officers admit to executing a “no-knock” entry into the home, but did not have a warrant authorizing such an entry. This is an important area of civil rights law which is currently developing. We’ll see what happens.

News Report

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June 24, 2015 Posted by | Uncategorized | Leave a comment

Recent settlements in WV police misconduct cases

Just to give an update, we have recently settled several police misconduct / civil rights cases. However, the insurance companies, and defendants, have started including confidentiality, or quasi-confidentiality provisions in them. So. . . . I can’t really comment. I really do work on them to completion. They’re not just dying on the vine.

I’ve recently been contacted about some cases with some appalling accusations of police misconduct, and I’m excited (if that’s the right word) to prosecute them. I still have time for another [good] case or two to work on this year if anyone wants to bring them to me. I also am still accepting co-counseling arrangements with other lawyers who think they have a client with a case.

March 20, 2015 Posted by | Uncategorized | 2 Comments

2015 West Virginia Strongest Mountaineer II Event

This weekend I won first place in my division at the West Virginia Strongest Mountaineer II strongman competition.

2015-03-14 11.36.42

March 16, 2015 Posted by | Uncategorized | Leave a comment

U.S. Supreme Court to hear cell phone seizure case – United States v. Wurie

Cell phones are increasingly becoming a primary component of any encounter between police and civilians.  Along with that comes the warrantless seizure of cell phones.  After all, they hold great evidentiary value from a law enforcement perspective.  Neither the Fourth Circuit, nor the U.S. Supreme Court, has yet taken a position on whether there is a First Amendment (and therefore Fourth Amendment) right to videotape police officers.  This isn’t exactly the same issue, since it mostly deals with seizing and searching cell phones incident to an arrest.  But, the issue is the same when the person filming is arrested, at which point their phone will be seized.

When the phone is seized can the officers go through the phone without first obtaining a warrant?  There is a very well written post on this topic from the Alabama Civil Rights and Civil Liberties Law Review blog, written by Lacy Triplett.  She opined that:

The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurieand find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant. 

In any event, you know that right now across the country, police officers go through the cell phones of arrestees, where they find valuable information such as, every text message conversation the person had in the last year – or even their email history.  They also contain photos, videos – you name it.  Those practices, and law enforcement training, is going to depend on the outcome of Wurie.

April 14, 2014 Posted by | Uncategorized | , , | Leave a comment

Upcoming legal seminar on “Advanced Police Liability” topics

I am co-presenting a legal seminar on April 28, 2014 in Charleston, West Virginia on “Advanced Police Liability Claims.”  I will be the only plaintiff’s attorney presenting.  I will be discussing some interesting areas of the law, including the current hot topics of videotaping police officers, the rights to medical care for those in police custody, and police inaction.

Especially for lawyers who need those CLE credits, this is going to be a good one to attend.  Would you rather learn about subrogation and underinsurance claims, or the law of police/citizen interactions?

You can learn more and register here.

March 18, 2014 Posted by | Uncategorized | Leave a comment