Category Archives: Governmental Liability

Law enforcement is [apparently] not a profession

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It is often said that the definition of a profession is a group of persons who engage in the same occupation and police themselves.  Physicians authorize and discipline their own.  Lawyers authorize and discipline their own.  The same goes for veterinarians, pharmacists, and so on.  Cops do not police themselves.  They do not proactively sort out the bad apples.

Case in point: former Montgomery, WV PD officer Matthew Leavitt.  He successfully got his municipality sued multiple times and cost their insurance company six figure settlements.  This could have been avoided years earlier if anyone in the law enforcement field would have given a damn.  The Charleston Gazette published a story on his career.  According to the Gazette, his resume includes the following:

November 2000-June 2001:

Leavitt is employed at South Central Regional Jail.

June 25, 2001:

Leavitt is arrested for driving under the influence.

December 2001-December 2004:

Leavitt is in the U.S. Army. While there, he is disciplined for drinking on duty.

March 2005:

Leavitt is employed as a Cedar Grove Police officer.

January 2006:

Leavitt’s certificate of completion of West Virginia State Police Basic Training is signed.

April 2006:

Leavitt is charged with battery by Charleston police for a bar fight.

June 2006:

Leavitt leaves the Cedar Grove department and is hired by the Madison Police Department.

July 13, 2006:

Leavitt goes to Elsie Keffer’s house in Madison at 7:45 a.m. and harasses her, her boyfriend and her daughter, according to Madison Police records subpoenaed in the Reynolds’ civil suit.

August 2006:

Leavitt resigns the Madison Police Department.

October 2006:

Leavitt is hired by the Smithers Police Department.

Nov. 6, 2006:

Leavitt is hired by the Mount Hope Police Department.

Nov. 24, 2006:

Leavitt leaves the Mount Hope department.

Nov. 29, 2006:

Leavitt is hired by the Gauley Bridge Police Department.

In his employee file, provided to the Gazette by Reynolds’ attorney Mike Clifford, there is a paper where Gauley Bridge Chief L.S. Whipkey and Mayor Damon Runyon kept notes from interviews with Leavitt’s references.

Madison Chief C. Burgess said, “he would love to have him back” and that he “gets along well with other people.” Smithers and Cedar Grove police chiefs also recommended Leavitt to Whipkey.

December 2006:

Hutchinson is hired by Smithers.

January 2007:

Leavitt is terminated by Gauley Bridge for sleeping on duty.

January 2007:

Leavitt is hired by Montgomery.

September 2007:

Hutchinson and Leavitt allegedly assault Roderick and Lakisha White after responding to an incident at their home, according to a lawsuit filed in Kanawha County Circuit Court.

“[Leavitt] threatened to ‘blow my fat black ass away,'” Lakisha White told the Gazette. “He said, ‘Bitch, I own you. I own the streets of Montgomery.'”

December 2007:

Hutchinson receives certificate of completion of West Virginia State Police Basic Training.

February 2008:

Leavitt leaves the Smithers Police Department. (During Leavitt’s tenure at Smithers, he worked for other departments concurrently, a common practice among small-town officers.)

March 2008:

Leavitt, recently hired by Cedar Grove, along with another Cedar Grove officer and a Kanawha County sheriff’s deputy, allegedly sexually assaults Patricia O’Scha on a hill across from Riverside High School, according to a suit filed by O’Scha in Kanawha County Circuit Court.

The three allegedly told her that if she would have sex with them, she wouldn’t have to go to jail. O’Scha said that while she was alone with Leavitt at the Montgomery police station, he implied she should have sex with him or give him oral sex, according to the complaint. Just when he stopped working for Cedar Grove is unclear.

March 2008:

Hutchinson resigns from Smithers and is hired in Montgomery.

August 2008:

Leavitt allegedly handcuffs Gregory Lee Payne and drives him to a wide spot in the road just before Interstate 64 near Cabin Creek. There he chokes and hits Payne, then leaves him by the side of the road, according to a lawsuit filed in Kanawha County Circuit Court.

Aug. 23, 2008:

Leavitt allegedly assaults 17-year-old Sherkiri Terrell. She alleges that after he pushed her head against a wall, he slammed her cell phone to the ground. As the two struggled, she says she put the phone down her pants. She alleges that when it began to ring, he put his hands down her pants to get the phone, according to Terrell.

Aug. 27, 2008:

Joey Carr knocks over a soda machine in Montgomery. Leavitt stops him, takes him to the police station and assaults him. When Leavitt pepper sprays him at close range, Carr says he tries to run away.

“He grabs me and throws me down, kicks me in the stomach and Maces me again,” Carr told the Gazette previously. “When he handcuffs me, he throws me against the car and told me to ‘Quit screaming like a little bitch.'”

Sept. 26, 2008:

Leavitt and Hutchinson assault Twan and Lauren Reynolds. Leavitt hits Twan over the head with a blackjack, kicks him in the back and sprays his eyes with pepper spray at close range.

He also uses a racial epithet and licks Lauren Reynolds on the neck during an interrogation, saying, “Little whore, you like it like that.” Their 4-year-old daughter witnesses much of the assault.

Sept. 27, 2008:

Montgomery officials suspend Leavitt and fire Hutchinson for the incident.

Sept. 29, 2008:

Montgomery police start an internal investigation into the Reynolds beating.

Oct. 1, 2008:

Hutchinson is employed as a Glasgow police officer.

Oct. 21, 2008:

Hutchinson’s last day as a Glasgow police officer.

April 2009:

Leavitt is terminated by Montgomery Police.

April 2009:

Hutchinson is employed by Chesapeake Police, where he is still an officer.

June 10, 2009:

Leavitt is indicted on federal civil rights violations for beating Twan Reynolds and falsely charging his wife, Lauren Reynolds, with a DUI.

July 6, 2009:

Leavitt pleads guilty to two misdemeanor civil rights violations in federal court. During the sentencing Oct. 22, Chief U.S. District Judge Joseph R. Goodwin said Leavitt remains defiant.

“He has stated that he only pleaded guilty because he feared that due to, quote, ‘idiots,’ unquote, on the jury, it was the, quote, ‘smarter thing to plead guilty,’ unquote,” Goodwin said. “He stated he wants the Court to know, quote, ‘I stand by my actions that day.'”

This generally is not the case with the State Police.  But when the State Police fires somebody, or they resign due to misconduct, they usually go to some small municipality just as Leavitt did.  Another case-in-point, Derrick Snavely.  According to the Charleston Gazette, this is what was alleged:

In an interview with The Charleston Gazette in December 2008, the woman said Snavely told her she was driving in the middle of the road, then performed a field sobriety test on her. She asked him if she was going to get a DUI, and he told her he didn’t think she was that drunk.

Eventually they drove in separate cars to another spot, where Snavely, who is in his early 20s, began kissing and fondling her, she said. Then they drove in separate cars to her house, she said. “I went in survival mode,” she said at the time. “I couldn’t call anybody because he was the police.”

Snavely admitted to the sexual encounter, but claimed that there was no resistance.  Though he was fired, he was not prosecuted.  Prosecutors concluded that it was not a criminal offense for a trooper to have sex while on duty.  They really stuck up for him.

Kanawha County prosecutors declined to bring charges against Snavely after reviewing the evidence, said Dan Holstein, assistant prosecutor for Kanawha County. The case was independently reviewed by two assistant prosecutors and they agreed that there was no prosecutable offense, he said. . . .

“To have a sex offense under those circumstances, you have to prove beyond a reasonable doubt that there was forcible compulsion. … And in this case there was no resistance at all, not even in word,” Holstein said. . . .

Prosecutors reviewed all the evidence, including a videotape inside the woman’s home that shows the officer there that night.

“If the Legislature wants to make it a crime to have sex with someone on duty, they can do that,” Holstein said. “But so far they haven’t. Just because he was a police officer and on duty doesn’t mean it was a crime.”

This should really piss you off.  He pulled some girl over.  Undisputed.  She admits she was drunk.  He ends up having sex with her at an apartment.  Undisputed.  (Undisputed only because it was caught on videotape).  She is not charged with DUI.  Undisputed.  Prosecutors go out of their way to conclude that no crime was committed.  Needless to say, her lawyer, Mike Clifford, disagrees:

“Any time a state trooper is in a squad car in uniform with a gun and a badge, the standing and negotiation powers for sex or anything else is severely restricted,” Clifford said.

Clifford, who has filed multiple lawsuits accusing police officers of wrongdoing in the past year, said he tells his clients that it’s best to follow police orders when they are stopped.

“Go along with whatever they do. We have the option in open court to figure it out,” he said.

So where does Snavely go after he resigns?  Hinton, WV PD.  A small municipality with a history of law enforcement issues.  He is now Chief.  I actually have met him, and he seemed like a nice guy when I met him.  But the point is, there is a complete lack of sanity in the hiring of police officers by municipalities.  These people are then given a gun and authority to point it at you.  This helps put West Virginia last on the list of where people want to come visit – or start a business.  Less officers is better than enough officers unqualified.

Officers who resign or are fired from counties also end up in these shady municipalities, such as Robert Alkire, Jr., about whom I have previously posted, who allegedly shot his gun off during an on-duty altercation with his girlfriend, and is now working at the Ronceverte, WV police department.  The Charleston Gazette has also published articles on him.

This is what you get when you unionize government.  This is what you get with big government: a complete lack of accountability, a complete lack of sanity.  Just wait until it affects you, and then you will care.  It happens.

– John H. Bryan, West Virginia Attorney.

So you want to sue the police….

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I get calls every day from people in West Virginia, or from elsewhere who were arrested, etc., in West Virginia, who want to sue the police.  To be honest with you, I only seriously consider very, very few of these types of cases.  Sometimes, from what I hear in the first few minutes, or in a description of what allegedly happened, I don’t even want to get involved with it.

Since I know that people researching the law with regards to filing lawsuits against the police and police misconduct in West Virginia end up on the site, let me go ahead and tell you what I personally look for in a police liability case.

Number one, credibility.  If it’s going to be your word against the officer’s.  There must be some indication of credibility on your part.  That means preferably no criminal history.  College education is a plus.  A good career is a plus.  A good family is a plus.  Being married is a plus.  Being otherwise successful in life seriously bolsters your credibility.

Number two, corroborating evidence.  It is almost necessary to provide some corroborating evidence that the police engaged in misconduct.  It could be a witness (again, see comments on credibility), or it could be a videotape, an audio recording.  It could be found in official documentation, such as a police report or internal investigation, or even in a cruiser dashboard camera, or a police report.  It could be corroborated by law enforcement itself, such as through disciplinary action taken against the officer, or through a criminal prosecution of the officer.

Number three, damages.  If you have no damages, in most instances, there’s nothing to compensate you for.  This goes hand in hand with credibility.  Generally, if you are a credible, upstanding citizen, it will cause you damage to be wrongly arrested.  You might get fired.  You might lose business.  These are damages.  Maybe you were beaten and ended up in the hospital.  Medical bills, pain and suffering, etc., are damages.

Number four, your story of what happened to you has to piss me off.  If after hearing what happened to you really pisses me off, then I get excited about it.  Those are the types of cases I like to take.  One’s that I feel comfortable with taking to a jury and shoving down the state’s throat.  Where I feel truth and justice is on my side.

Number five, and lastly, I have to have a good feeling about the client.  I don’t want to take a risk for someone – and these cases are risky – if I don’t like them.  Because if I don’t like them, chances are a jury may not like them.

Unfortunately, it’s not possible for me, or for other attorneys, to take every justified case.  Other considerations are always at play.  It is one of the faults of our justice system.

But it doesn’t hurt to ask.  If you call me with your story, I will at least be able to tell you pretty quickly whether I would be interested in taking the case or not.

– John H. Bryan, West Virginia Attorney.

Police Liability Seminar CLE

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In a few weeks, I will be partially presenting a police liability seminar CLE in Charleston, WV.  This will be the second year in a row I have done this.  Last year was successful.  There were a lot of highly-respected attorneys there, many of whom were defense lawyers representing the state, counties, and cities, and many were plaintiffs attorneys.  A lot of good information was exchanged.  For better or worse.

Here is a link to the brochure, with all of the relevant info.

http://www.nbi-sems.com/Enbi/Brochurepdfs/51523.pdf

Perhaps, the most advantageous lesson to be learned is immunity law and procedure as it applies to other types of governmental liability cases (for those who have not yet taken on one of these cases).  Because it is mostly applicable in any type of case where you are suing the state, county, or city.  And other types of cases are generally more profitable to a plaintiff than one in which you have a police officer or department as a defendant.

NC Case Illustrates Abuses of Inmates

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Probably the most vulnerable among us are those who are incarcerated.  I’m all for law and order, as well as punishment, but very few of those incarcerated actually killed somebody or are otherwise going to spend the rest of their lives there.  Many of them haven’t even been convicted of anything yet, they just don’t have the ability to bond out prior to their trial.  Many times these people are physically abused by correctional officers who have the ability to run roughshod over the population.  And people don’t care because they view them as criminals.  

For instance, there was a North Carolina case that just popped up in the news, which captured the beating of an inmate on video – leading to a civil lawsuit.  But if it were not videotaped, nobody would believe it.

In West Virginia, we have some of the worst jails in the country.  I’m not talking about the prisons, but the jails – places where people go who are awaiting trial, or who were sentenced to a short sentence of incarceration.  It seems like every other day there is a correctional officer being fired for sexually assaulting inmates, or dealing drugs with inmates.  And these are just the one’s who get caught.  I’ve heard countless stories from different clients of the abuse perpetrated by guards.  And most of them are almost identical, despite the fact that these people had never met each other.

Don’t be surprised if the Department of Justice announces an investigation….

 – John H. Bryan, West Virginia Attorney.

Venue Issue Decided in Flanary Case

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A venue issue had popped up in the Flanary case when counsel for Pocahontas County filed a motion to dismiss based on improper venue.  Basically, there is a law stating that if you sue a county in West Virginia, you have to sue that county in it’s own courthouse, or in any either county in which the cause of action arose (which would be rare to be anywhere else).  But there is also a law stating that if you sue the State of West Virginia, you must sue in Kanawha County (location of the state capitol).  So what happens when both a county and the State are named defendants in a lawsuit?

Well we faced that very issue, and after the issue was briefed and argued, the Circuit Court Judge ended up ruling in my client’s favor, finding that venue was proper where the lawsuit was originally filed – in Kanawha County.  As a courtesy to defense counsel who represent governmental entities in West Virginia, since they are so generous among themselves with sharing circuit court orders and submitting them against plaintiff’s counsel, I will post a copy of the Judge’s order for submission or review by anyone who may find it helpful.

 – John H. Bryan, West Virginia Attorney.

Police and Governmental Liability Case Filed against the State and Pocahontas County

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Here is a copy of a police liability/ governmental liability lawsuit that I filed last week against various agencies of the State of West Virginia, Pocahontas County, and several private corporations and individuals – including Snowshoe Mountain – on behalf of Brent Carter Flanary.  Since the case is obviously pending, I can’t comment on the facts other than to summarize what is in the pleadings, which are lengthy.  This case is about a man who had everything and ended up with nothing.

 The Complaint alleges that Mr. Flanary, who had a condo at Snowshoe and was going through a bitter divorce, was forced “off the mountain” by Snowshoe officials, with the help of local and state law enforcement – all of whom were communicating with Mr. Flanary’s ex-spouse.  During this process, Mr. Flanary suffered imprisonment, both in a jail and in a mental hospital, for over a month’s time, was beaten, sexually assaulted, attacked with gas grenades, tasers, German Shepherds, and fists – all over allegedly being publicly intoxicated, for which incarceration isn’t even a potential punishment (1st offense).  None of the aforesaid “use of force” incidents were in any way memorialized in a police report or “use of force” affidavit.  Instead, they were covered-up until after the expiration of the one year statute of limitations for false arrest and false imprisonment.  Additionally, much of the conduct underlying these allegations were videotaped.  One of the video tapes emerged nearly two years later, conveniently missing the relevant footage at the end of the digital footage (and also after the lapsing of the aforesaid statute of limitations).  Another video tape has yet to emerge.  But this didn’t stop the prosecutor – and now disbarred assistant prosecutor – from attempting to bring Mr. Flanary to trial on the criminal charges (without production – or even admission of the existence of – the video tapes).

You may not want to take all the time necessary to read the entire document.  However, this Complaint may be useful to other West Virginia attorneys who are facing – or considering –  police liability or governmental liability cases.  The area of law is extremely complex and tricky, and there’s not a whole lot out there to review prior to filing your own case.  A considerable amount of research went in to the drafting of this Complaint, including the review of just about every police liability case filed in West Virginia in the last five years.   – John H. Bryan, West Virginia Attorney

UPDATE:  State Journal story on the Flanary case posted 1/8/09.

                     Pocahontas Times story also posted 1/8/09.

FOIA lawsuit and West Virginia statutory notice provisions

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There was a Charleston Gazette article last week detailing a ruling by a Kanawha County Circuit Court judge dismissing Massey Energy’s FOIA (Freedom of Information Act) lawsuit seeking emails from Supreme Court Justice Larry Starcher.

The grounds for dismissal were failure to comply with the statutory notice provisions.  When you are suing the state, even with respect to a FOIA case, you have to comply with the notice provisions of W. Va. Code Section 55-17-1, et seq. – which means that you have to give written notice via certified mail, return receipt requested, to both the “chief officer” of the state agency and the Attorney General, of the “alleged claim and the relief desired.”  It’s pretty basic really, though I ran afoul once in sending notice to the “general counsel” rather than the “chief officer.”  But regardless, there’s not much case law on the topic for either side in these situations.  But, if you don’t send the notice at all – to anyone – then the suit absolutely cannot proceed.

I was in court this morning on a governmental liability case such as this, and the attorney representing the other side is perhaps the most respected and knowledgeable attorney in West Virginia regarding these types of governmental liability issues.  He told me the behind-the-scenes story behind the adoption of this pre-suit notice statute, which I won’t recite here, but let’s just say that, like everything else in West Virginia, every statute has it’s ulterior motives.  The legislature should be required to put this stuff on the legislative record so that you can bring it up in your arguments.  Circuit Court’s usually don’t take judicial notice of attorney gossip.

One point of confusion is possibly this: if you sue over a FOIA violation against a political subdivision (i.e., county or city), W. Va. Code Chapter 55-17 doesn’t apply – there’s no notice required prior to suit.  The statute only applies to the state and all of it’s agencies and appendages.  And, the Supreme Court is an appendage of the state – and needless to say is usually not a good party to have on the other side of your lawsuit.  But then again, a very prominent attorney in the state asked me, after I brought up this issue, “is there anything wrong with writing someone a letter to tell them your gonna sue them?”  I guess there’s not – especially if you want to put their insurance carrier on notice of the potential claim.

Anyways, as a “little guy” who is almost always the “David” fighting the “Goliath” law firms, it makes me smile a little bit to see a big firm, representing possibly the most lucrative client in the state, make a mistake such as this.  They probably had gobs of lawyers working on this case, and had all the resources in the world at their disposal – and they still messed up. But all clients – even huge corporate clients – in the end, must count on individuals, both with their attributes and their mistakes.  

A Florida trial lawyer who was a family friend once said to my father (talking about taking on big firms): “though they may have a hundred lawyers working on the case, can’t but one of them speak at a time.”

 – John H. Bryan, West Virginia Attorney