Petition for Rehearing En Banc Filed Yesterday with the Fourth Circuit in the Orem Search and Seizure Case

Yesterday we filed a Petition for Rehearing En Banc with the U.S. Court of Appeals for the Fourth Circuit in the Orem case. On May 11, 2020, the Fourth Circuit handed down a panel decision in the Orem v. Gillmore, et al., Section 1983 civil rights lawsuit, arising out of Berkeley County, West Virginia.

Here’s the background post on the initial filing of the lawsuit, in April of 2018. This is the case that made national headlines when a Republican nominee for Sheriff was arrested for allegedly overdosing in his home. He was arrested by a state trooper, who showed up at the scene of the medical emergency, and performed a warrantless search of a bathroom in the house. The trooper’s longtime secretary was the married to one of the candidate’s political opponents. During the arrest booking, a photograph was taken of the client while handcuffed inside a secure area of the state police detachment. It was uploaded to social media as a meme, and quickly went viral. Of course, the state police investigated themselves, and strangely were unable to find the culprit.

The damage was done, as far as the election is concerned. The prosecuting attorney determined that the arrest resulted from an illegal search of the bathroom, and evidently the court agreed. The criminal charges were dismissed. We filed a civil lawsuit in federal court. Unfortunately however, the Court granted the trooper qualified immunity on the search, and claimed that we missed the statute of limitations on the false arrest count. I argued up and down that the judge and the opposing lawyer were confused, and that false arrest has a 2 year SOL – not 1 year, as they claimed. Well, I was right. The Fourth Circuit overturned the ruling on the statute of limitations, holding that I was right about it being 2 years. But then they granted qualified immunity anyways.

Here’s the Petition for Rehearing:

Here’s the opinion, if you want to read it. Unfortunately, the opinion was pretty sparse – granting the defendant police officer qualified immunity, with pretty much no explanation whatsoever. They just said, it was “beyond debate.”

The expansion of qualified immunity to police officers who violate the most central tenant of the Fourth Amendment – a warrantless search of a home – is concerning. Qualified immunity is supposed to apply to the gray areas, where we can’t expect police officers to understand all the nuances and constant changes in case law. But the warrant requirement for searching a man’s home? The U.S. Supreme Court has long held that a police officer cannot be entitled to qualified immunity for the warrantless search of a home. Hopefully we get a rehearing on this and a new opinion, or else we very well may end up there.

Lawsuit being filed against the West Virginia Governor today challenging his COVID-19 executive orders

Being filed today: I’m representing S. Marshall Wilson, of the West Virginia House of Delegates, three other delegates, and one West Virginia Senator, in their challenge to the West Virginia Governor’s COVID-19 executive orders. Here’s the petition being filed. Press conference at the State Capitol, today at 11:00 a.m.

Update: some footage from the press conference at the State Capitol:

Article in Saturday’s Charleston Gazette-Mail:

https://www.wvgazettemail.com/coronavirus/lawmakers-file-petition-with-state-supreme-court-over-governors-actions-during-pandemic/article_009e51a9-70da-5bb3-8e48-e4e37f658448.html

Delegate S. Marshall Wilson (right), I-Berkeley, discusses the filing of a petition seeking a writ of mandamus against Gov. Jim Justice Friday outside the state Supreme Court. Attorney John Bryan (left) filed the petition on behalf of five state lawmakers, including Wilson.JOE SEVERINO | Gazette-Mailhttps://www.wvgazettemail.com/coronavirus/lawmakers-file-petition-with-state-supreme-court-over-governors-actions-during-pandemic/article_009e51a9-70da-5bb3-8e48-e4e37f658448.html

A word of caution from a suspicious lawyer on PPP Loans

A word of caution from a suspicious lawyer . . . .So instead of downsizing our massive behemoth of government bureaucracy, Congress passed the CARES Act, establishing the so-called Paycheck Protection Program (PPP), which allows the SBA to guarantee 350 BILLION in loans to help small businesses. As of April 16, 2020, a total of 1,661,397 loans have been made through 4,975 lenders nationwide, eating up all the available money thus far.

Many businesses and investors believe they’re not going to have to pay back these loans. If you believe that, you don’t know government. But there’s way more at stake here than just being required to pay back a low interest loan. Way more. Expect the DOJ to turn their attention to small businesses in the very near future. They’re gonna “help” small business all right….

Take a look at the bill. It’s “Yuge.”

It’s gonna take more government officials to run this thing than would be necessary to run 10 or 12 third world countries. I’m skeptical about who’s paychecks are being protected here. But it’s not just the size of the program that gives me concern. More importantly, these loans have been rushed through, under the hysterics created by the government itself, as well as the media. What does one facing the apocalypse – basically, the scenario of riding motorcycles with spiked shoulder pads – represent on an emergency rushed bank loan application? Therein lies the question of the very near future.

Due to widespread shutdowns, we’re headed into an epic economic depression. That will be a depression for those of us in the private sector. At least at first. They can always take out more debt and print money. But that will collapse too without the forecast of an income stream of real money. The government will want its money from these PPP loans. The government always wants its money. Several quotes come to mind:

  • 1. “I’m from the government. I’m here to help.”
  • 2. “F*ck you, pay me.”
  • 3. “There’s no such thing as a free lunch.”

The False Claims Act (FCA) is a federal law which imposes liability on persons and companies (see “small businesses“) who defraud governmental programs. This law includes a qui tam provision that allows people who are non-government employees (see lawyers and law firms) called “relators” to file lawsuits on behalf of the government. There’s another name for this: “whistleblowers.” Under the FCA, the relators / whistleblowers receive a portion of any recovered damages – generally 15 to 30 percent. This is the basis or all these pharmaceutical lawyer commercials you see on TV. Those lawyers are gonna jump all over this. We need only look to the last “bailout” from Obama’s TARP program in 2008. Just in 2015 alone, the DOJ recovered over 3.5 BILLION in damages under the FCA. And that was the “fourth consecutive year” for such large damages recoveries, as the DOJ proudly announced. It’s an annual expected component of the budget at this point.

Legal experts who practice in the area of the FCA are already warning other lawyers to expect a heightened focus on individuals and small businesses now that these new loans have been made on such a rushed basis. The DOJ recently restated its “commitment to use the False Claims Act and other civil remedies to deter and redress fraud by individuals as well as corporations.”

And it’s not just the private lawyers. Do you think the mountain of lawyers and investigators at the DOJ are going to sit idly by and do nothing? No, they’re ready to get back to work. Remotely of course. In fact, they’ll need even more resources and employees in order to combat the coming fraud crisis you’ll hear about. “With a new national crises at hand, and an even bigger commitment of federal assistance to combat it, expect a plethora of federal and state agencies to join the effort to police recovery spending. Indeed, oversight mechanisms in the act go beyond establishing the special inspector general and include establishing a Pandemic Response Accountability Committee, which is also charged with oversight.” Id.  

Now that’s an acronym that ought to scare the hell out of anyone involved in the application of these loans. I can see that on the side of a van pulling up next to front doors in a Polish ghetto, looking for whatever is deemed verboten.It’s not just the applicants, but the bankers as well, and anyone else connected to the process, or the business. The FCA lawyers and the DOJ, using a theory of mere “false certification” of application information, can go after individuals, small businesses, and the lenders who participated in the program. All it takes is to show false information included in the laundry list of certifications in the applications, including, but not limited to:

  • the recipients must use the funds to retain 90% of their workforce;
  • the recipients must remain neutral in union-organizing efforts;
  • the uncertainty of economic conditions as of the date of the application makes the loan necessary to support ongoing business operations;
  • the recipient INTENDS to restore not less than 90% of its workforce and to restore all benefits to workers no later than 4 months after the termination of the health emergency;
  • the recipient is not a debtor in a bankruptcy proceeding;
  • the recipient will not pay dividends to stockholders.

What is “necessary” and who gets to determine what was “necessary?” And who gets to determine what the recipient “intended?” If the FBI can make General Flynn into a convicted felon just by asking their questions in a certain tricky way, what can they do to you? Not only that, but these applicants are also certifying to all other information provided in these applications. Just take a look:

Government doesn’t word things in such a way as to be concise and clear so that everybody’s on the same page. They word things in such a way so that, if they want to get you, they’ll get you:

Who’s angus is on the line? It’s not just the person who signs the application, but many other potential individuals within a “small business”:

Lastly, to go after you civilly, rather than criminally, under the FCA, the DOJ doesn’t have the usual constraints of the Bill of Rights and the standard of beyond a reasonable doubt. Instead, they only need to prove the civil standards of “deliberate indifference” and “reckless disregard.” You know, like what happens many times when you rush through an emergency apocalypse relief application. It’s just paperwork….

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” – James Madison

New issues are presented on whether jail and prison inmates in (or from) West Virginia can/should be released due to COVID-19

We’ve been working hard in multiple cases to try to obtain the release of some non-violent jail and prison inmates who are currently stuck in their cells, having completed the bulk of their sentences for nonviolent offenses. Many of the facilities have stopped all academics and facility programming and just leaving people quarantined in their cells. (Update 4/30/20: Success! First one is out!)

Many of these same individuals have the ability to be self-sufficient in the outside world – even during this crises – rather than requiring prison staff to interact with them, feed them, and so on. Not to mention the requirement of we the taxpayers to fund the whole thing. Yet even with this global pandemic, West Virginia’s correctional facilities are still overcrowded, with more inmates incarcerated than there are “beds available.”

As of April 1, 2020, there were still 270 more prisoners incarcerated than available beds. Many of these prisoners, such as the ones we’ve been trying to help, are nonviolent offenders who’ve already served most of their sentence, who pose no real risk to public safety, and who could be assisting their own families at this time. Some of these individuals have underlying health issues which makes them especially vulnerable.

The West Virginia Division of Corrections has come up with a comprehensive plan to mitigate the likelihood of an outbreak in these facilities, but we’ve all heard about the issues at nursing homes in West Virginia, where our outbreak first started. Vulnerable individuals in institutions such as these are at “grave risk of severe illness or death from COVID-19,” and this includes vulnerable prisoners. See Joe Severino, Charleston Gazette-Mail, A WV Nursing Home Had 29 COVID-19 Cases. Here’s How they Contained the Spread (Mar. 31, 2020).

West Virginia recently passed legislation which was intended to address overcrowding, but which also would be perfectly suited to the COVID-19 threat. However, it doesn’t go in effect until June 5, 2020. In that legislation, the DOC is authorized to develop and approve home plans for certain qualifying inmates. This would help, but June is still some time away. In the meantime, inmates are most likely required to go back to their sentencing judge in the court/county in which they were sentenced. That’s what we’ve been doing.

In federal court, there’s a provision for an inmate to petition for what’s called a “compassionate release,” which would apply well to prisoners with an underlying health vulnerability. However, there’s a problem there as well. By law, they’re required to make an administrative request to the federal Bureau of Prisons first, prior to going to the sentencing judge.

Unfortunately, West Virginia doesn’t have an option for “compassionate release” just yet. But something needs to be done. So far, we’ve filed motions for reconsideration of a sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. There’s a time limit of 120 days generally to file this, so most inmates are going to be beyond this number. However, there is an exception which allows a sentencing judge to waive the time limitation so long as it doesn’t “usurp the role of the parole board,” whatever that means. See, e.g., State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). 

We finally have our first hearing coming up this week on a Rule 35 COVID motion. We do know that certain sentencing judges around the state have allowed some of their inmates an early release on bond or home confinement due to COVID-19, but at this point it’s entirely up to the discretion of the court, which means that everything is on a case-by-case basis.

In the federal system, there is a mechanism for release, and there’s a number of set factors for the court to address – also a case by case analysis. But again, there’s that requirement to exhaust administrative remedies from within the BOP first before filing.

So far the ACLU and Mountain State Justice have tried to take action on a multi-client basis and have been denied. Again, these are case-by-case fact-heavy situations which require going to the sentencing judge. In New Jersey, there’s already been a case up to the U.S. Court of Appeals for the Third Circuit on a “compassionate release” petition. (USA v. Raia) However, because they didn’t make the petition to the sentencing judge, and also because the inmate didn’t ask the BOP administratively first, it got sent back with no real decision.

On its own, the West Virginia DOC has already released about 70 parolees who were serving short terms for parole-related violations, and about 70 other work-release inmates on “extended furlough.” Who knows where we go from here, but as they say, “no asky, no gety….”

If you need help with an inmate who you believe is vulnerable medically, or who is a nonviolent offender who has served a substantial portion of their sentence, we would be happy to help. Give us a call. (304) 772-4999. We’re still working, though we’re having all consults via telephone or teleconference.

Case Updates from The Fort

Update on various cases from within the safe confines of our fort headquarters:

Family Court Search Case:

On Monday, Matt Gibson filed a formal complaint with the Judicial Investigation Commission, as well as a written Motion to Disqualify the judge from the video. We will let those take their course and see what happens. I’m told that they may have already been involved prior to the complaint. I still haven’t seen any other cases where this has happened anywhere else in the state, nor anywhere else in the country.  Right now I’ve been informed of multiple instances of this happening – only in this particular county.

Walker Open Carry Case:

We field Notice of Appeal, and it has now been transferred to the US Fourth Circuit Court of Appeals. Soon we will receive a scheduling order and proceed with the briefing process.

Correctional Officer Traffic Stop Case:

The officer from the video, who was more specifically a parole officer for the WV Division of Corrections has since resigned. I’m told there’s a pending criminal investigation. I have reached out to the DOC’s counsel and requested negotiations with their insurance adjustor. If they don’t make Shawn a fair settlement offer, we’ll file suit.

Putnam County Search Cases:

Right now we are prepared to proceed on six separate search cases out of Putnam County, all related to the same unit of individuals. Although there was an “internal investigation” which we assisted in, there has been no information provided; no outcome whatsoever. At least one of the officers is still arresting people, according to information I’ve received.  So it sounds like nothing has happened.  We issued additional FOIA requests, and only one of the cases we’re investigating, so far, has returned any documentation or paperwork whatsoever.

 

Family Court Judge Searches Home


I just uploaded this yesterday afternoon and it’s already over 12k views on Youtube. Probably because most people can relate with having been before a Family Court judge before, whereas they may not be able to automatically relate to someone involved in the criminal justice process.

This is video footage from our client, Matt Gibson, a federal law enforcement officer who had his home searched by a Family Court judge over a year after his divorce was finalized.  This just happened on March 4, 2020. I’ve never seen anything like this before, so needless to say, I’m still researching the mountain of issues here.

 

This isn’t the first viral video showing a West Virginia Family Court judge on a rampage.  Remember Chip Watkins in good ‘ole Putnam County? Man that guy was something else.

 

The Family Court involved in our video is Raleigh County, West Virginia, Judge Louise Goldston. If you know of this happening in other cases, please let me know as I continue to look into this.

UPDATE 3/11/20: Voicemail received by my client from the opposing attorney the evening prior to the hearing, which he himself scheduled. In the recording he says that the Court asked him to call him to convey a settlement offer (which sounds like he’s admitting to an ex parte communication with the judge, meaning without the other party having the opportunity to participate, which is a big no-no) and he demands $5,000.00 to stop the “hearing” which would take place the next day:

UPDATE 3/13/20: TV news segment: