Lifestream Update 7/23 on the Suit Against the WV Governor over his COVID Tyranny

Also from 7/23/20, my appearance on the Tom Roton Show on WVHU in Huntington, West Virginia, discussing the COVID suit:

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:

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-Mail

New Online Resource for Use of Force law

I started a new website called “Use of Force Source” at  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.

Sawyer Case Media Reports

There was a nice article on the front page of the Charleston Gazette this morning about the Sawyer Case.

Ruling Against Wood Deputy in Assault Stands

“Today the citizens of West Virginia, Maryland, Virginia North Carolina and South Carolina have more constitutional protections than they did yesterday,” John Bryan, Sawyer’s attorney, wrote in a statement.

“As a result of today’s ruling, which affirmed the District Court for the Southern District of West Virginia, law enforcement officers will be taught to treat people differently, and that if they fail to do so, there will be consequences. Because of Brian Sawyer, and the federal court system, millions of people have more freedom. And that is something I am very proud of.”

There was also an article in the Parkersburg newspaper:

Asbury Judgment Upheld on Appeal

Well, off to another trial this morning.

ETA:  We won the property dispute trial.  We have been very blessed to have streak of wins in WV state-law easement disputes.  Although they might seem boring, they are quickly becoming one of my favorite types of cases, second only to civil rights cases.  I do enjoy interesting criminal cases.  However, I do not enjoy the stress of gambling with someone’s liberty.  I much rather prefer property rights or money.  The worse case scenario is never the end-of-the-world.

Also an article in the WV Record:

Fourth Circuit Affirms Goodwin’s Ruling in Wood County Civil Rights Case

Victory at the Fourth Circuit

We won the Sawyer case at the U.S. Court of Appeals for the Fourth Circuit.  The audio from the oral arguments is one post down.  Here is the opinion.  I have been unable to discuss the case for about a year.  Obviously, this is what has been happening.  I believe this is, and will be, a very important decision.  Although there was no new law created, this has greatly clarified, explained, and set the course, for future excessive force litigation and instruction.

Our Brief:

WV Supreme Court Justices “give attorney tough time during arguments”

An article in the West Virginia Record commented on several West Virginia Supreme Court Justices, Justices Ketchum and Davis in particular, giving an attorney a “tough time” during oral arguments:

The examination of Attorney L. during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas M., who represented Pullman and Structural, not say anything that would lose him the case.

And when Tiffany D., who was arguing for Ershigs, reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”

This brought back memories.  I was once before the WVSC for oral arguments and my opponent was given a really “tough time”.  After they finished, they told him to sit down, pointed at me, and told me to stand up, it was my turn.  I looked at them and said, “your honors, I think I’ll just quit while I’m ahead.”  One of the same Justices said “I think that’s a good idea”.  So I basically just sat down.

Sawyer v. Asbury defendants asking the 4th Circuit to stop the trial

I know that many people have been following this case, so here is an update.  On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case.  The new jury trial on damages is scheduled for next week.  I was given until yesterday to respond.  Unless the Fourth Circuit says otherwise we are having a trial on Tuesday.  Here is our response:

(Yes I did this in two days, so please excuse any mistakes)

New Rules for West Virginia Appeals and Sex Offense Convictions

As explained by the Charleston Gazette this morning, new rules have been adopted for West Virginia appeals to the WV Supreme Court of Appeals, which will become effective in December of this year.  This is a significant change for criminal defense in West Virginia.  The Court will still be able to deny a criminal defendant’s appeal.  However, from that point forward, the Court will have to give a reason for that denial.

Since 2004, it has been a concern of mine that persons convicted of sex crimes in West Virginia essentially will have no possibility of appeal.  The problem is that the justices must campaign for election or reelection.  In 2004 a justice lost his bid for reelection, mostly due to negative campaign advertising alleging that he freed a convicted sex offender (despite the fact that it was the correct decision legally – and despite the fact that there was obviously a majority consensus in that particular case since no justice can act alone).  After that, what justice is going to want to reverse a conviction for any sex offense, regardless of what the correct legal decision is?

I’m not trying to protect child molesters.  The fact is that “sex crimes” have turned into Salem witch hunts.  The average person would be stunned at how many “sex crimes” there are.  The small minority involve conduct which the average person would deem to be child molestation.  The end result is that we have watered down the sex offender registry with individuals about whom people are generally not concerned.  So when you actually have a child molester, it basically goes under the radar.

The average person would also be staggered at the volume of legislation and bureaucracy dealing with sex offender registration.  It has taken over West Virginia’s criminal code, and is beginning to take over parole in West Virginia.  Now, sex offenders will almost always qualify for “extended supervision” by WV parole officers.  So if you are convicted of a sex offense, at the behest of the prosecutor, even after you serve your time you can be supervised (basically be on probation) for decades – in addition to already being required to register as a sex offender for life (the rules and intricacies of which would take about a week to explain).  You can be forced to take polygraphs and wear an ankle bracelet.

We should be provided an accounting of how much taxpayer money is spent on the sex offender system.  I bet it would be staggering.  I would also like to know how many children it has saved from harm.  Probably very few.  Its like making schools “gun free” zones.  It does nothing to accomplish its alleged purpose, and actually ends up doing more harm than good.  Teachers or adult students cannot be armed to defend themselves and others.  Likewise, parents will have no idea a real sex offender is in their neighborhood – because there are so damn many “sex offenders” that the truly dangerous ones get lost in the crowd.

Good people, who pose no threat to the public, can and have gotten caught up in this witch hunt.  Politicians, nor judges, are willing to take a step back.  This is a mob mentality.  The “sex offender” brand rules – just like a witch.  If you step into the way of one of these prosecutions, you are in support of child molesters – you are a witch, and you lose your seat, or lose your bench.

Of course, we don’t need career politicians anyways.  Maybe judges, but not politicians.  At least now there is a right to be told why a criminal appeal is being denied.  Next, we need reform.  Just like taxes should be cut, laws should be cut.  Let’s stick to the basics.  When we make everything a crime, we give corrupt or power hungry prosecutors the power to charge anyone for anything at anytime.  Never a good idea.  Some are just bad apples.  The scary thing is, that bad prosecutors have a common trait:  their will to win and avoid embarrassment is greater than their respect for justice.  They will convict an innocent person to save face, or even to achieve personal retribution or revenge.  And the ignorant electorate has no idea.  They hear a radio ad touting how “tough on crime” the prosecutor is, and they vote for him.  Elections are not won by promising to ease up on criminal prosecutions, or by promising leniency or mercy.  Again, it’s a mob mentality.  The WV Supreme Court should be completely insulated from the mob.  Hopefully that will be a future reform.