Rittenhouse Shootings Analyzed

The Rittenhouse shootings were the next logical step of violent riots, combined with government leaders who allow them to occur. What happens when the right to riot collides with the natural rights or life, liberty and the pursuit of happiness? Or more specifically, the right to life, i.e., the right to self defense? It may be a new normal in 2020, but we build courthouses for a reason: to sort out the facts, and apply the law. The difficult part is to ensure a fair trial without the media poisoning the potential jury pool with misinformation, and misnomers, such as “armed vigilante,” “assault rifle,” “peaceful protestors,” and so on, and to let the true facts fall where they may. In the end, our Founders demanded, and ensured, that we have the right to a jury of our peers for a very good reason. That’s the only thing standing in between an individual in this position, and a lifetime of being locked away in a cage.

The facts can be sorted out. There are multiple videos of the incident. There will be many pictures and screenshots, and slow motion, or frame by frame versions of the incidents. Easier to determine is, what sort of laws will be applied here?

Possession of Firearms in Wisconsin and Illinois:

Wisconsin firearms law provides for open carry of loaded rifles and pistols for those 18 and older not otherwise prohibited from possessing firearms.  Unless Rittenhouse’s age has been incorrectly reported he would be in violation of these statutes. Similar statutes exist in Illinois.
Further, in Wisconsin and Illinois, providing an underaged individual with a firearm is a felony. It seems safe to assume that Rittenhouse’s enthusiasm for firearms was supported at least in some measure by his legal guardians. If they knowingly lent him use of the AR he carried in Kenosha they may face charges under these statutes.

Transportation of Firearms between Wisconsin and Illinois:

Federal law pre-empts the prosecution of illegal transportation via 18 U.S.C. §?926A which provides:

“Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”


Any number of state statutes in Wisconsin or Illinois may govern the illegal importation or exportation of firearms where the “peaceable journey” exemption of 18 U.S.C. § 926A does not preempt. Rittenhouse is in jeopardy here if his age is reported correctly as he is not legally able to possess the AR platform he possessed in Kenosha in either Wisconsin or Illinois.

Self Defense:

In general, and Wisconsin is no exception, a “self-defence” defence to homicide (i.e. “justifiable homicide” or “excusable homicide”) or the use of deadly or potentially force requires several elements. Those claiming self defence must:

1. Have the reasonable belief that…
2. …they or another person…
3. …are in imminent…
4. …danger of death or great bodily harm, and…
5. …that the use of deadly force is necessary to prevent said harm.

Key elements of the defence to hone in on are:


Reasonability. Would a reasonable person fear for your life under the circumstances presented?


Imminent. Is the threatened death or great bodily harm about to occur that moment, or at some other time? It has to be literally about to occur.

Wisconsin incorporates these elements in its excusable homicide statute thus:


“A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” (Wisconsin Updated Statutes 2019 § 939.48(1))


Further, many jurisdictions do not permit defendants to use self-defense as an argument if deadly force was used in a confrontation the defendant him or herself precipitated. Wisconsin is one such jurisdiction, terming the restriction “Provocation” providing:


A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defence against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defence, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.

The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.

A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defence.” (Wisconsin Updated Statutes 2019 § 939.48(2))

Use of Deadly Force By Rittenhouse

Was there a reasonable belief of imminent death or great bodily harm?

Did Rittenhouse provoke the aggressors? In both episodes, Rittenhouse appears to be attempting to retreat. In the first, he is shown on video being chased, and having something thrown at him. In the second episode, they are clearly chasing him, and attacking him. One attacker had a skateboard, and another had a pistol. Moreover, he appears to be using every effort at escaping, i.e., exhausting his reasonable means to escape, in the second episode.

What about the illegal possession of a firearm? That remains to be seen. Self-defense should still apply, whether or not it utilizes an illegally possessed firearm, which is not a requirement of the basic self-defense analysis. Then again, I’m not a Wisconsin lawyer, so…….

BJJ and Police Use of Force – Freedom is Scary Livecast No. 3

In “Freedom is Scary” LIVE No. 3, I discuss Brazilian Jiu-Jitsu (“BJJ”) with former law enforcement officer and BJJ academy owner/coach, Adam Martin.

Why? Because ever since the death of George Floyd, “chokehold” has been the word of the day. Trump brought them up in his June 16, 2020 Executive Order, and now many states have issued orders, or enacted legislation, banning the use of so-called “chokeholds” by police officers.

The problem is, that the term doesn’t mean what they think it means, and in doing so, they’re changing the rules of self defense for police officers. As with other civil rights, if you allow it to be done to one group of people, it always grows like a virus to include groups of people who were not intended to be affected. In this video we discuss what that means.

On June 16, 2020, President Donald Trump (R) issued an executive order, titled Executive Order on Safe Policing for Safe Communities, addressing changes to policing on June 16, 2020.The order directed the U.S. Department of Justice to create an independent credentialing body that would develop a set of criteria for state and local law enforcement agencies to meet in order to be awarded federal grants. The order stated that the criteria should address excessive use of force, include de-escalation training, and ban the use of chokeholds, except when the use of deadly force is lawful.

The chokehold provisions of Trump’s E.O.:

(i)   the State or local law enforcement agency’s use-of-force policies adhere to all applicable Federal, State, and local laws; and

(ii)  the State or local law enforcement agency’s use-of-force policies prohibit the use of chokeholds — a physical maneuver that restricts an individual’s ability to breathe for the purposes of incapacitation — except in those situations where the use of deadly force is allowed by law.

Just what in the hell does that mean anyways…..

Many states have followed suit, banning “chokeholds.” Most notably, I’ll point out that Connecticut actually got the terminology correct, successfully banning pretty much every good submission you’ll see on the UFC.

On July 31, 2020, Governor Ned Lamont (D-Conn.) signed a policing policy bill into law. Under HB 6004, the following was enacted, according to the governor’s office:

On June 15, 2020, Lamont signed an executive order to change law enforcement strategies. The order banned “the Connecticut State Police from using chokeholds, strangleholds, arm-bar control holds, lateral vascular neck restraints, carotid restraints, chest compressions, or any other tactics that restrict oxygen or blood flow to the head or neck,” according to a press release from the governor’s office.

You’ll have to watch the discussion to see what Adam has to say about this policy, but it has something to do with not being a state trooper in Connecticut…..

Update: Podcast version: https://thejohnbryanpodcast.podbean.com/e/freedom-is-scary-no-3-bjj-training-and-police-use-of-force/

What is Qualified Immunity and why does it fail at life?

Section 1983 lawsuits allow private citizens to sue individual government officials, including police officers, for violations of federal rights performed under color of law.

If a government officer violates a federally protected civil right, the citizen has the legal right to file a civil lawsuit against the officer. 42 USC 1983, passed in 1871, allows citizens to sue state and local government officials – especially police officers – for damages when their rights are violated. Even if they’ve suffered no monetary damages, if they are successful, they’re entitled to an award of reasonable attorney fees and expenses. The same sort of lawsuit is available against federal officials pursuant to the U.S. Supreme Court case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971). Those are known as “Bivens actions.” But before these lawsuits can be successful, they have to get past the obstacle of the Qualified Immunity defense.

Qualified Immunity is a defense to civil lawsuits alleging the violation of federal rights while acting under color of law. It does not apply as a defense to criminal prosecution.

Qualified Immunity is a civil defense to these lawsuits, provided to government officials by the Supreme Court initially in the case of Pierson v. Ray in 1967, and then again, in its current form, in Harlow v. Fitzgerald, in 1982. It was rearranged yet again in Pearson v. Callahan (2009) giving federal judges more discretion in granting qualified immunity.

Qualified Immunity has been the subject of intense debate in recent years, and especially in recent months. Many commentators have criticized it as an example of the Court creating legislation from the bench, and in so doing having created a significant problem for citizens seeking to hold their government officials accountable for the violations of their civil rights.

As Ninth Circuit Judge Stephen Reinhardt has written, the Supreme Court’s recent qualified immunity decisions have “created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights.” Three of the foremost experts on Section 1983 litigation—Karen Blum, Erwin Chemerinsky, and Martin Schwartz—have concluded that recent developments in qualified immunity doctrine leave “not much Hopeless for plaintiffs.” 

Although the concept of qualified immunity was drawn from defenses existing in the common law at the time 42 U.S.C. § 1983 was enacted, the Court has made clear that the contours of qualified immunity’s protections are shaped not by the common law but instead by policy considerations. In particular, the Court seeks to balance “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” 

The Supreme Court’s original rationale for qualified immunity was to shield officials from financial liability. The Court first announced that law enforcement officials were entitled to a qualified immunity from suits in the 1967 case of Pierson v. Ray. That decision justified qualified immunity as a means of protecting government defendants from financial burdens when acting in good faith in legally murky areas. Qualified immunity was necessary, according to the Court, because “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

The reality of Qualified Immunity, through my eyes, which are the eyes of someone who litigates civil rights lawsuits mostly as a plaintiff, is that it’s more of an annoyance in the usual case litigated by an experienced civil rights attorney, but that it’s often a problem in those unique cases where justice really should be served, but isn’t. The big problem, in my opinion, is the use of an objective standard. Common sense tells us that bad faith conduct by law enforcement should be punished. But the subjective bad faith, or malicious intentions, of a defendant police officer, surprisingly may not even be admissible in court. Because it’s usually irrelevant under the standard.

Qualified Immunity is analyzed using an objective standard, rather than subjective.

At its inception in 1967, there was a subjective component to the qualified immunity analysis. From 1967, when qualified immunity was first announced by the Supreme Court, until 1982 when Harlow was decided, a defendant seeking qualified immunity had to show both that his conduct was objectively reasonable and that he had a “good-faith” belief that his conduct was proper. In 1982, the Court in Harlow dropped the second part, the subjective good faith belief requirement, finding that such a requirement was “incompatible” with the policy goals of qualified immunity, which now not only was to protect law enforcement officers from financial liability, but also now to avoid subjecting them to either the costs and burdens of trial, as well as the burdens of broad-reaching discovery.

Qualified Immunity cannot be justified as a means of reducing civil litigation surrounding allegations of police misconduct.

In a recent study discussed in a Yale Law Journal article, out of a study of 1,183 lawsuits against state and local law enforcement defendants, over a period of two years, in five federal district courts, it was found that qualified immunity was only raised as a defense in 37% of the cases, and out of those, only resulted in dismissal in 3.6% of the casesSee How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

I’ll repeat that: out of 1,183 lawsuits against police officers for civil rights violations, Qualified Immunity was raised as a defense by the officers in only 37% of the cases, and out of those, only 3.6% resulted in dismissals.

Another study by Alexander Reinert, looking at Bivens actions (against federal officials), found that grants of qualified immunity led to just 2% of case dismissals over a three year study period. However, the big difference in those cases from regular Section 1983 cases, is that the defense attorneys are Assistant United States Attorneys – members of the civil branch of each federal district’s federal prosecutor’s office. As such, they may take a different route of defense, as a matter of DOJ policy. So they are somewhat different creatures, though both involve issues of Qualified Immunity.

Therefore, according to the numbers, “Qualified Immunity” itself is rarely the formal reason that civil rights lawsuits against law enforcement end. Moreover, there are certain types of cases where qualified immunity cannot be utilized, such as those against the employers of law enforcement officers (Monell Claims). Out of the 1,183 cases studied, 8.4% fell into this category. 

The Yale study also showed that most of the qualified immunity litigation is taking place at the summary judgment stage, or even the trial stage, rather than at the motion to dismiss stage, as the Supreme Court apparently intended. That means that litigation is not being avoided. It is perhaps being increased. 

As Alan Chen has observed, when considering the deficiencies of qualified immunity, “the costs eliminated by resolving the case prior to trial must be compared to the costs of trying the case . . . . [T]he pretrial litigation costs caused by the invoking of the immunity defense may cancel out the trial costs saved by that defense.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Moreover, Qualified Immunity likely increases the expense, as well as the delays, associated with federal civil rights litigation.

Although qualified immunity terminated only 3.9% of the 979 cases in my dataset in which qualified immunity could be raised, the defense was in fact raised by defendants in more than 37% of these cases—and was sometimes raised multiple times, at the motion to dismiss stage, at summary judgment, and through interlocutory appeals. Each time qualified immunity is raised, it must be researched, briefed, and argued by the parties and decided by the judge. And litigating qualified immunity is no small feat. John Je ries describes qualified immunity doctrine as “a mare’s nest of complexity and confusion.”155 Lower courts are “hopelessly conflicted both within and among themselves” as a result. One circuit court judge reported that “[w]ading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Qualified Immunity cannot be justified as a means of protecting police officers from personal financial liability.

In the study of 1,183 civil lawsuits, police officer defendants paid little, to none, of settlement or verdict amounts. Out of the 44 largest law enforcement agencies included in the study, which included 70 agencies overall, the individual officers paid just 0.02% of the dollars awarded to the plaintiffs in those suits. In the 37 smaller and midsize law enforcement agencies, no individual officer contributed any amount to any award to a plaintiff during this period. All of the officers were indemnified by the employers, even where they were fired, disciplined, or even criminally prosecuted for their conduct. This has been my experience as well, except in one particular case I’ve personally been involved with. I only know of one other instance in West Virginia where there was a second occurrence.

Qualified Immunity cannot be justified as a means of protecting police officers and government officials from the non-financial burdens of discovery and trial.

Often discussed in Qualified Immunity caselaw is this phrase, and so-called policy objective, of shielding government officials from the burdens of participating in a lawsuit, including the discovery process and the trial itself. For this reason, courts have the discretion to apply Qualified Immunity early in the litigation, including at the motion to dismiss stage, prior to any discovery being conducted. However, the study shows that this policy goal is not being met.

I found that, contrary to judicial and scholarly assumptions, qualified immunity is rarely the formal reason that civil rights damages actions against law enforcement end. Qualified immunity is raised infrequently before discovery begins: across the districts in my study, defendants raised qualified immunity in motions to dismiss in 13.9% of the cases in which they could raise the defense. 

These motions were less frequently granted than one might expect: courts granted motions to dismiss in whole or part on qualified immunity grounds 13.6% of the time.Qualified immunity was raised more often by defendants at summary judgment and was more often granted by courts at that stage. But even when courts granted motions to dismiss and summary judgment motions on qualified immunity grounds, those grants did not always result in the dismissal of the cases—additional claims or defendants regularly remained and continued to expose government officials to the possibility of discovery and trial. Across the five districts in my study, just 3.9% of the cases in which qualified immunity could be raised were dismissed on qualified immunity grounds.

And when one considers all the Section 1983 cases brought against law enforcement defendants—each of which could expose law enforcement officials to whatever burdens are associated with discovery and trial—just 0.6% of cases were dismissed at the motion to dismiss stage and 2.6% were dismissed at summary judgment on qualified immunity grounds.

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Thus, Qualified Immunity was the reason for dismissal in only 3.2% of the 1,183 lawsuits in the study. The defendants raised the defense in 37.6% of the cases where the defense was available. Out of these, only 13.9% of these were raised at the earliest point available – that is, the motion to dismiss stage – that being the only method of avoiding the burden of participating in the discovery process. Courts granted less than 18% of those motions raised at the motion to dismiss stage, which includes motions granted “in part,” which means that only some claims were dismissed, and that others were allowed to proceed. 

Therefore, the existence of Qualified Immunity is not serving the alleged policy goal of shielding government officials from the burden of participating in the litigation process. Unless, of course, one considers 3.2% to be a substantial shield from litigation. To the contrary, it arguably has increased the negative public perception of a lack of equal justice in the justice system as a whole.

How to strip a police officer of Qualified Immunity

To strip a police officer of qualified immunity in a civil rights lawsuit, a plaintiff must establish that:

1. the officer’s conduct violated a federal statute or constitutional right; and

2. the right was clearly established at the time of the conduct, such that

3. an objectively reasonable officer would have understood that the conduct

violated that right.

Which comes first? Until recently, the United States Court of Appeals required a court to first determine whether or not a constitutional right had been violated and then determine whether an officer was entitled to qualified immunity. See Saucier v. Katz, 121 S.Ct. 2151 (2001). Courts and attorneys were routinely ignoring this mandate and somewhat recently, the United States Supreme Court in Pearson v. Callahan (2009) reverted back to its initial analysis and now courts are free to evaluate these issues in whatever order the court desires. 

The real world application of Qualified Immunity.

1. There generally tends to be a “grace period “between a change in the law, and then moment it becomes “clearly established” for qualified immunity purposes.

2. Qualified Immunity is generally a poor defense to claims of excessive use of force by a police officer. The reason for this is because this often involves highly contested disputes of fact which make a trial likely. For example, a plaintiff alleges an officer kicked him in the groin while he was handcuffed. The officer responds that the plaintiff is lying, and that he did no such thing. This is most certainly going to require a trial to decide the truth of the matter. It doesn’t really involve a legal analysis of whether a police officer would know it would be a civil rights violation to kick a handcuffed detainee in the groin for no good reason. The primary exception to the excessive force rule is police shooting cases where the plaintiff is dead. Such a case usually involves family members of the decased filing suit. As such, the plaintiff himself/herself cannot tell his/her side of the story. With only one side available in many such cases, the court may grant qualified immunity based on the officers’ un-contradicted affidavits or deposition testimony.

3. Qualified Immunity is a very effective defense when dealing with search and seizure issues, which are rapidly developing and changing (due to commonly being involved in criminal litigation, which occurs in much greater volume and frequency). This creates so-called “grey areas” of the law, for which courts tend to give police officers the benefit of the doubt, so to speak.

4. An officer’s mistaken understanding of the law, or a reasonable misapprehension of the propriety of his conduct, can still provide a defense under Qualified Immunity. See Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.”).

5. Qualified immunity applies as an effective defense in wrongful arrest cases, where the Court looks at the facts in the record and determines that probable cause exists, or that the officer made a reasonable mistake as to the existence of probable cause.

Therefore, ironically, Qualified Immunity is not much of a bar to a plaintiff seeking to hold a police officer responsible for the use of excessive force, such as in the recent death of George Floyd. Without a doubt, no court in the land would grant Qualified Immunity to the officer involved in Mr. Floyd’s death. There would be, or probably will be, factual issues to be determined at trial. Rather, it mostly is going to apply to those “grey areas” of search and seizure law. Moreover, it’s going to apply usually without regard to the officer’s subjective ignorance, or expertise, regarding the law. It’s an objective, fairly low standard.

For this reason, I agree with the author of the Yale Law Review study, in that rather than calling for the end of Qualified Immunity, it might be best to return to a subjective standard version of Qualified Immunity, where police officers who act in bad faith, as well as those who act in good faith, though objectively unreasonably, can be held accountable. But as for Qualified Immunity itself, whether it exists, or does not exist, it’s not going to apply to any of the officers directly involved in Mr. Floyd’s death. But it will be involved in many other cases, including cases where there certainly was police misconduct, for which the victim will be barred from recovery. That can’t be a good policy, in my opinion.

Fayette County Search Case was Settled

I’ve had several people ask me about an update on the Sizemore case, which was a search and seizure case out of Fayette County, West Virginia, involving a multi-jurisdictional drug task force who were found by a federal judge to have included false allegations in a search warrant application. The federal criminal charges were dropped after the evidence seized during the search was suppressed from evidence. Then the case was brought to me for a civil lawsuit. We filed in in September of 2019. We recently settled the case.

This was the case where the Charleston Gazette newspaper thought it was shocking that we filed a lawsuit over an illegal search where, despite the illegal warrant, drugs actually were found in my client’s house. I believe the headline was, “Officers found his $25k of heroin. He walked free, and now he’s suing police.”

In my December 2019 update, in response to the police officers’ motion to dismiss the lawsuit, I reiterated that equal justice under the law should mean that even people found with drugs should be entitled to the equal application of law and posted our response brief, as well as their motion.

In my January 2020 update, I posted a copy of the federal court’s memorandum opinion and order denying the motion to dismiss, and denying the application of qualified immunity, ordering that the case proceed. You’ve been hearing a lot about qualified immunity lately. The order in this case denied qualified immunity to the officers:

As previously explained, Defendant Morris violated Plaintiffs’ Fourth Amendment protections. Thus, the next question is whether the violated right was clearly established at the time of the events in question. “[I]t has long been established that when law enforcement acts in reckless disregard of the truth and makes a false statement or material omission that is necessary to a finding of probable cause, the resulting seizure will be determined to be unreasonable.” Gilliam v. Sealey, 932 F.3d 216, 241 (4th Cir. 2019); see Franks, 438 U.S. at 157. 

As the Fourth Circuit has explained, “a reasonable officer cannot believe a warrant is supported by probable cause if the magistrate is misled by statements that the officer knows or should know are false.” Miller, 475 F.3d at 632 (quoting Smith v. Reddy, 101 F.3d 351, 355 (4th Cir.1996)).

Qualified immunity is actually pretty rare in excessive force lawsuits – at least where the plaintiff’s attorney knows what he or she is doing. Ideally, there is a dispute of facts, which requires a trial. But in search in seizure cases, it’s usually less of a factual dispute, and more of a legal dispute. The gist of qualified immunity is that courts give some leeway to police officers, who can’t be expected to automatically know each and every new case that comes out. Some courts expand it, unfortunately, but many don’t.

Here, the court equally applied the Fourth Amendment and justice was served. A police officer should not be allowed to lie in order to obtain a search warrant, even where they believe that the ends justifies the means. Here’s the full order, which was quoted above:

WV prison guard stops our client at gunpoint in Doddridge County, WV

Check out this new case. Police officer impersonation incident by a WV Division of Corrections CO / Parole officer. We met with investigators already, who were extremely concerned about what they saw here….

If you have any information, please contact us.

Episode 1 of the JOHN BRYAN PODCAST – impeachment, constitutional law, gun laws, self defense laws, and glucose meters are screwed up….

https://www.podbean.com/eu/pb-tqqbg-cb4067

Check out Episode 1 of the John Bryan PODCAST, where I pontificate on several topics, including impeachment evidence we’ve supposedly been hearing about, some search and seizure issues pertaining to the open carry of firearms, some self defense firearms issues, and a really crazy discovery that generic brand blood glucose meters, used by diabetics, are apparently way, way off……

 

The “Hurt” case against the West Virginia State Police and West Virginia DNR was filed, and is in the news….

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Full Version of the Hurt Lawsuit.

Charleston Gazette-Mail article from this Sunday:

WV family’s call to police ends in excessive force lawsuit

A family from Camp Creek, in Mercer County, is alleging West Virginia State Police troopers and a Division of Natural Resources officer violated their civil rights and exercised excessive force on them after they called police in 2016 to report an armed, unstable neighbor — who later called in a fake hostage situation, stole a police cruiser from a trooper and set it ablaze — according to a federal lawsuit filed last month in the Southern District of West Virginia.

“It was just like boom, out of nowhere all of a sudden my yard was filled with them, all screaming and hollering at [Lilly],” Ronnie Hurt said…..

Wills, who was on the phone with 911 during the entire incident, heard officers yelling at her father to step off the porch with his hands up. Due to health issues and physical disabilities, she knew he needed help climbing the porch stairs, so she went outside to assist.

Within seconds of Willis stepping outside, Trooper John R. Tupper and DNR officer Marshall Richards grabbed her and her father by the arms, yanking them “violently and forcefully” face-first off the porch and onto the ground, the suit reads.

“They didn’t tell me anything, nothing at all,” Wills said. “Not to put my hands up, not to hang up the phone. I didn’t even have a chance before I was on the ground.”

One officer grabbed Wills’ phone, hung up on 911 and threw it on the ground before stepping on it with his boot, she said.

 

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://thecivilrightslawyer.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-…

McPherson Case makes front page news this morning

This morning, investigative reporter Catie Coyne had a great article on the front page of the Charleston Gazette-Mail about the McPherson case, and the firing of Hinton police chief, Derek Snavely.

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I’ve been doing this for awhile.  Usually after the news dies down, a fired police officer will quietly appear somewhere else – usually a small municipality or county somewhere. I’ve seen it happen again and again.  When the reporter called me about the case, I shared my frustration with her.

The Hinton police chief — who is the target of a federal lawsuit filed in December alleging that he used excessive force on a Summers County man by beating him and hitting him three times with a stun gun without provocation — was terminated this week based on his “job performance,” according to Hinton City Councilman Larry Meadow….

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.”

McPherson Case defendant, Snavely, fired as police chief of Hinton

The City of Hinton has now fired its police chief, Derek Snavely.  Snavely is the primary defendant in the McPherson v. Snavely, et al. excessive force lawsuit currently pending in the federal district court for the Southern District of West Virginia.

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From the Register-Herald newspaper this morning:

HINTON – Mayor Joe Blankenship announced Tuesday that Hinton Police Chief Derek Snavely has been terminated.

An emotional Blankenship made the announcement during a city council meeting in Hinton, not long after reports surfaced that Snavely had been placed on leave following a domestic dispute.

During his tearful speech, Blankenship said that Snavely was promoted to police chief in 2009 without his recommendation, due to the fact that he was dating his daughter, Bethany. Blankenship also stated that he has always recused himself from meetings concerning raises for Snavely.

“City code states that the office of police chief is at the will and pleasure of the mayor in every municipality, therefore I feel I cannot stand aside any longer concerning this situation,” Blankenship stated. “As Bethany’s father and best friend, I feel that I’m aware of everything.”

At the time the City of Hinton hired Mr. Snavely, Mr. Snavely was in the news for having been effectively fired by the West Virginia State Police for misconduct.  This information was also known at the time the City of Hinton promoted him to police chief. See Trooper Accused of Rape Resigns, Charleston Gazette-Mail, http://www.wvgazettemail.com/article/20081211/ARTICLE/312119998.  He was also in the news for allegedly falsifying police records to cover up his misconduct. See Prosecutor Not Told Ex-Trooper Falsified Log, Charleston Gazette-Mail, http://www.wvgazettemail.com/article/20081211/ARTICLE/312119998. 

The State Police even took the unprecedented step of making a public statement about Snavely.  It was reported in the Herald-Dispatch newspaper, that the newly-appointed West Virginia State Police spokesperson said, of Snavely, “We can’t have things like this,” waving a newspaper with an article about Snavely’s alleged misconduct, stating that, “it reflects poorly on me and [the superintendent] . . . it kills me.”  He noted that it was important for the state police to do “everything we an to acknowledge and address these incidents, and then we need to move forward.” See W. Va. State Police Col. Focusing on Standards, The Herald-Dispatch, http://www.herald-dispatch.com/news/recent_news/w-va-state-police-col-focusing-on-standards/article_2d9b2963-a067-59b1-93d1-ac4e8004ccfe.html.  

This was all known (1) before he was hired by the City of Hinton; and (2) before he was promoted to police chief.  I’m sure the fact that he was dating (and now married to) the mayor’s daughter had nothing to do with it.  This is not the first time a police officer resigned due to misconduct and then was hired by some small town in West Virginia.  That’s been a recurring problem across the state.