I don’t believe I ever posted on this case:

https://wvrecord.com/stories/511259277-woman-sues-braxton-county-sheriff-s-deputy-after-allegedly-being-unlawfully-incarcerated

The Rosa O’Neal Fourth Amendment case against Braxton County, and Deputy Bryce Scarbro.  This is an interesting case because it brings up what is commonly referred to as a “Franks Claim.”

In West Virginia, unless a warrantless arrest is made, that means that a police officer usually wrote out a “Criminal Complaint,” and submitted it to a magistrate for their approval.  This is basically an affidavit for an arrest warrant.  If the arrest was “wrongful,” you can’t sue the magistrate because they have absolute immunity.  You can only sue the police officer who submitted the document to the magistrate.

If the magistrate approved it, then there is basically a presumption that there was probable cause, and therefore not a wrongful arrest.  That leaves you in the position of proving that the officer who wrote the arrest warrant application included false statements, or material omissions, and that they did so with a certain degree of incompetency, or intentionally.

So generally, to sue for Wrongful Arrest in West Virginia:

1.  If there was no arrest warrant, you can just prove there was no probable cause;
2. If there was an arrest warrant (Criminal Complaint signed by a magistrate), then you are required to show false or misleading information was included in the affidavit to the magistrate which, had it been known to the magistrate, probably would not have been signed because there would have been no probable cause.

We are dealing with option No. 2, which isn’t easy.  So, did the police officer mislead the magistrate, and was it just a stupid or reasonable mistake, or was it really incompetent and/or done maliciously or purposefully?

Rosa O’Neal was a 66 year old lady who had never been in trouble in her life, who was physically arrested for allegedly lying to a deputy about two fairly innocuous facts.  She spent 15 hours in jail, and then was released onto the side of the road to hitchhike home.

I took the deputy’s deposition, and he claimed that it is always illegal to lie to a deputy in West Virginia, and because he’s Mr. Truth and Justice, and had her arrested.  That’s just not true.  It’s only illegal to lie to a deputy if it pertains to a material topic for an official felony investigation.  It’s not illegal to lie about a misdemeanor investigation, per se.  And it’s not illegal to lie about something irrelevant; or about something that’s not part of an investigation….

Lies to a police officer in West Virginia? Depends on what the officer is investigating:

1. Felony Investigation:  A person who, with intent to impede or obstruct a law-enforcement officer in the conduct of an investigation of a felony offense, knowingly and willfully makes a materially false statement is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $200, or confined in jail for five days, or both fined and confined.  The provisions of this section do not apply to statements made by a spouse, parent, stepparent, grandparent, sibling, half sibling, child, stepchild or grandchild, whether related by blood or marriage, of the person under investigation.  Statements made by the person under investigation may not be used as the basis for prosecution under this subsection.  For purposes of this subsection, “law-enforcement officer“ does not include a watchman, a member of the West Virginia State Police or college security personnel who is not a certified law-enforcement officer.
2. Misdemeanor Investigation: A person who by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail not more than one year, or both fined and confined.

So option 2 is your basic obstruction.  It actually doesn’t say anything about lying.

Anyways, discovery was completed in the O’Neal case.  Depositions were taken, and everything has been submitted to the federal judge, who will decide whether the evidence is sufficient to present to a jury…..