The Walker Open Carry Case Turns Into a Fight Over the “AR-15”

UPDATE 2/5/20: Here’s our reply to the defense theory of Anti-AR-15:

Central to the Reply is newly discovered evidence. The defendant police officers argued to the Court that even though there’s no indication of it from the video, they actually weren’t checking to see if Michael Walker was a person prohibited from possessing a firearm, but rather that he was a potential school shooter, because it was “morning,” and a school some undetermined distance down that road was “in session.”

Well, the video was originally broadcasted on Facebook Live. Somebody was able to go back and screenshot it, and as it turns out – oops – it was actually 6:00 p.m…. I guess that explains the crickets around the 2:50 mark on the video.

WalkerLiveShot2:21:18.JPG


So, here’s the response we received from Putnam County in response to our pretrial motion asking the Court to stop the Putnam County deputies from presenting anti-AR-15 propaganda and irrelevant media reports of mass shootings at the jury trial in the Michael Walker Open Carry case.

Here was my last update, wherein I posted our motion to exclude the unrelated matters from trial, if you haven’t been following along.

This response is an outrageous attack on the Second Amendment, which ironically was filed by lawyers for West Virginia’s first so-called “Second Amendment Sanctuary” county – Putnam County.  Yesterday we all appeared at the federal courthouse in Huntington, West Virginia, for the pretrial hearing on various motions, including this one.

It was almost surreal to hear the other side argue to the Court that by virtue of the fact that Michael was safely carrying a completely legal AR-15 style rifle, in a non-threatening manner, that police should be able to search and seize him just because the AR is the “preferred weapon of mass shooters,” and so on.  Citing news media reports about the Parkland shooting.  They actually argued in court, that it would not have been suspicious if he had a shotgun, or a handgun.  It was mentioned that AR-15s aren’t used for hunting in West Virginia.  Which is of course completely false, and besides the point.

This is a reality check for people who value the Second Amendment, as well as the Fourth Amendment.  If you live in the Fourth Circuit: West Virginia, Virginia, Maryland, North Carolina, or South Carolina, unless there’s a SCOTUS opinion on point, your constitutional interpretation/law comes from the Fourth Circuit. We’re on the edge….

Right now U.S. v. Black (2013), written by a federal appellate judge who is a staunch defender of the Second Amendment, Judge Gregory, whom I’ve had the honor of arguing in front of, protects citizens who open carry firearms in open carry states.  The police cannot harass you, detain you, search you, seize you, just by virtue of the fact you have a firearm. As we know from the past, that was the original purpose of gun control measures in many of the southern states, such as North Carolina (which is where US v. Black came out of).

Black was narrowed by US v. Robinson in 2017, which said that anyone in a vehicle lawfully stopped for whatever traffic violation, or pre textual reason whatsoever, can be disarmed and searched, because firearm possession automatically makes you dangerous.   Judge Gregory wrote an amazing dissent in that en banc opinion, which specifically mentions this scenario as it pertains to West-by-God-Virginia. However, that wasn’t extended to open carriers who are not already legitimately subjected to a forced encounter with police.  Well, they’re now trying to extend this to open carriers through anti-AR-15 propaganda.

If they succeed, guess what can happen next time thousands of open carriers bring their ARs to the state capitol in peaceful protest and free speech?  It’s game on if law enforcement wants to disarm you, run your background checks, search your pockets, etc. As Judge Gregory warned in the Robinson case dissent:

In my view, states have every right to address these pressing safety concerns with generally applicable and evenhanded laws imposing modest burdens on all citizens who choose to arm themselves in public. For instance, many states—though not West Virginia— seek to reconcile police safety and a right to public carry through “duty to inform” laws, requiring any individual carrying a weapon to so inform the police whenever he or she is stopped,4 or in response to police queries.5 And if a person fails to disclose a suspected weapon to the police as required by state law, then that failure itself may give rise to a reasonable suspicion of dangerousness, justifying a protective frisk.

West Virginia, however, has taken a different approach, permitting concealed carry without the need for disclosure or temporary disarmament during traffic stops. For the reasons described above, I do not believe we may deem inherently “dangerous” any West Virginia citizen stopped for a routine traffic violation, on the sole ground that he is thought to have availed himself fully of those state-law rights to gun possession. Nor, in my view, does the Fourth Amendment allow for a regime in which the safety risks of a policy like West Virginia’s are mitigated by selective and discretionary police spot-checks and frisks of certain legally armed citizens, by way of pretextual stops or otherwise. Cf. Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (invalidating discretionary spot-checks of drivers for licenses and registrations in furtherance of roadway safety). Absent some “specific, articulable suspicion of danger” in a particular case, see United States v. Sakyi, 160 F.3d 164, 168–69 (4th Cir. 1998), West Virginia’s citizens, including its police officers, must trust their state’s considered judgment that the benefits of its approach to public gun possession outweigh the risks. See Northrup, 785 F.3d at 1133.

. . .

That is particularly so given that West Virginia does not require that people carrying firearms inform the police of their guns during traffic or other stops, even if asked. See supra at 50. Where a state has decided that gun owners have a right to carry concealed weapons without so informing the police, gun owners should not be subjected to frisks because they stand on their rights. Cf. Northrup, 785 F.3d at 1132 (“impropriety” of officer’s demand to see permit for gun being brandished in public is “particularly acute” where state has not only legalized open carry of firearms but also “does not require gun owners to produce or even carry their licenses for inquiring officers”). Under a different legal regime, different inferences could be drawn from a failure to answer an officer’s question about a gun. See supra at 50–11. But I do not think we may presume dangerousness from a failure to waive—quickly enough—a state-conferred right to conceal a weapon during a police encounter.

Again, I recognize that expanded rights to openly carry or conceal guns in public will engender genuine safety concerns on the part of police officers, as well as other citizens, who more often will find themselves confronting individuals who may be armed.

But where a sovereign state has made the judgment that its citizens safely may arm themselves in public, I do not believe we may presume that public gun possession gives rise to a reasonable suspicion of dangerousness, no matter what the neighborhood. And because the rest of the circumstances surrounding this otherwise unremarkable traffic stop do not add appreciably to the reasonable suspicion calculus, I must conclude that the police were without authority to frisk Robinson under Terry’s “armed and dangerous” standard.

Accordingly, I dissent.

United States v. Robinson, 846 F.3d 694, 714, 716 (2017).

Don’t forget that Heller, i.e., the Second Amendment, has not yet been extended outside one’s home. It hasn’t been applied to open carry yet, or anywhere outside the home in the Fourth Circuit – nor by SCOTUS. See United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), other courts are divided on the question, compare Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right to keep and bear arms for personal self-defense … implies a right to carry a loaded gun outside the home”); Palmer v. Dist. of Columbia, 59 F.Supp.3d 173, 181–82 (D.D.C. 2014) (holding that Second Amendment right recognized in Heller extends beyond home), with Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (“[T]he Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.” (emphasis added)); Young v. Hawaii, 911 F.Supp.2d 972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in public do[ ] not implicate activity protected by the Second Amendment.”); Williams v. State, 417 Md. 479, 10 A.3d 1167, 1178 (Md. 2011) (holding that regulations on carrying firearms outside the home are “outside of the scope of the Second Amendment, as articulated in Heller and McDonald“).

So, are Montani Semper Liberi, or not? It remains to be seen. Right now, definitely not in Putnam County. And if they get their way, neither here, nor our neighbors in Virginia, and below…..

Update on the Walker Case (Fourth Amendment Open Carry Lawsuit)

In case you’re following along with the Walker v. Donahoe, et al. Fourth Amendment open carry civil rights lawsuit, we have a jury trial scheduled for February 19, beginning at 8:30 a.m. at the federal courthouse in Huntington, West Virginia. As of right now it’s still on.  Both sides have asked the court for summary judgment, which basically means that both sides claim to have the law completely on their side.  The court has not ruled as of yet. Pretrial documents have been submitted, including motions in limine, which are trial issues anticipated by the parties, which are best argued prior to the start of the trial.  If you haven’t seen the video of the incident in dispute, here it is:

The defendants are seeking to exclude portions of this video showing the “investigatory detention” of Michael Walker by the Putnam County Sheriff’s Department.  Not surprisingly, they want the part of the video where the police officer calls Michael a “co*ksucker,” repeatedly, among other things to be kept away from the jury.  Here’s their argument:

Also not surprisingly, we strongly disagree.  Here’s our response.  The judge will decide at some point, and generally has the broad discretion to control the flow of what the jury gets to see, and what they don’t:

We also filed a few motions in limine of our own, including our attempt at stopping the defendants from bringing up the Parkland school shooting, which they have announced is their attention, and which has absolutely nothing to do with the case.  They are also seeking to make the case that because Michael had an AR-15 style rifle, that a reasonable officer could suspect him of being a potential school shooter, or something to that effect.  Which is of course highly offensive, and antithetical to both the Fourth Amendment and the Second Amendment to the U.S. Constitution:

In case you’re curious about the current status of laws pertaining to the open carrying of firearms in West Virginia, check out the last post I did on it.  It should still be the same. Of course, this case could change that if it doesn’t go our way…..

Update on the Drug Task Force Civil Rights Lawsuit out from Fayette County, W. Va.

Here’s an update on the Fourth Amendment civil rights lawsuit we filed in the Sizemore case, which involved a federal criminal prosecution which was dismissed following a federal judge making a finding that officers in the Central West Virginia Drug Task Force made false statements to a magistrate in order to illegally procure a search warrant. We filed suit to establish civil liability for a violation of the Fourth Amendment, which specifically requires probable cause and a search warrant.

Well, we made it past the defendants’ motions to dismiss, and now we are proceeding to the discovery stage, which is essentially the exchange of information and the questioning of witnesses via depositions. The federal court denied the motions, and has ruled that we get to proceed.

You can look back at my last update to read their argument, as well as our response.  As I predicted then, it didn’t turn out as they expected.

From the order:

First, I must note this Court is at a loss to understand Defendants’ assertion that because this case involves “a search warrant, rather than an arrest warrant,” it therefore “does not require a showing of probable cause.” Defs.’ Mem. Mot. Dismiss [ECF Nos. 6, 9]. More confusing, Defendants cite favorably to Illinois v. Gates, 462 U.S. 213 (1983), a case which describes the standard for probable cause in a search warrant. Though puzzling that this is necessary to explain to a member of the bar, “the Fourth Amendment requires that no search warrant shall issue without probable cause.” United States v. Daughtery, 215 F. App’x 314, 316 (4th Cir. 2007).

Indeed, the text of the Fourth Amendment, which has been in place since the adoption of our Constitution and Bill of Rights, states that individuals have the right to be protected “against unreasonable searches and seizures,” and “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV (emphasis added). And a search and seizure without probable cause is unreasonable. Miller, 475 F.3d at 627. This is especially true for searches of the home, which “is first among equals” regarding the Fourth Amendment. Yanez-Marquez v. Lynch, 789 F.3d 434, 464–65 (4th Cir. 2015) (quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)).

Yep. It says “probable cause” in the Constitution. Hard to get around that…..

 

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)).

Update on the Sizemore “search and seizure” civil rights case

Here’s an interesting, and academic (for Constitution nerds), update on the Sizemore federal civil rights lawsuit, which had been in the news recently.

This is the one where the drug “task force” had found heroin in the client’s home, but the case was dismissed after a federal judge found that the officers had made numerous false statements to the magistrate in order to get the search warrant.  This is also actually the case I last posted about, since I haven’t been posting much on here lately.

Should the fact that officers were found to have made false statements under oath to get a fraudulent warrant, have been allowed to go away quietly since drugs were actually found, or should something have been done about it?  The news media wasn’t happy about it, necessarily, but I elected to do something – heroin or no heroin.  And here’s why:

Either “equal justice under the law,” etched into the walls of the Supreme Court, is just decoration, or it actually is enforced and put into practice.

Here is the response brief we just filed to some of the defendants’ motion to dismiss.  I really enjoyed writing this one, because it was as if I were back in my old baseball days, and being a kid who was bigger than most, the pitcher gave me an underhand slow pitch, just begging me to hit it out of the park.  Maybe I’m missing something, but I don’t think so.  I really look forward to reading the outcome of this one.  I don’t think it’s going to turn out like they had hoped . . . .

 

Here is the motion to dismiss the defendants filed:

 

Here is the original Complaint itself:

 

New Civil Rights Case Filed out of Fayette County: Sizemore vs. Members of the WV Drug Task Force

Here is the copy of a civil rights lawsuit we filed in the U.S. District Court for the Southern District of West Virginia late last week.  It has now been assigned to Judge Goodwin in Charleston, WV. The case comes out of Fayette County, West Virginia, and involves a criminal investigation and prosecution gone awry.

Sizemore Complaint

My client, Keith Sizemore, had his home searched, via a SWAT team style raid, while he and his 16 year old son were home.  In the subsequent federal prosecution, the federal judge presiding over the case ended up suppressing evidence obtained during the search, and issuing an order finding that members of the Drug Task Force had lied to the Magistrate Court of Fayette County in order to obtain the search warrant for Mr. Sizemore’s residence.  It’s really an astonishing order:

Sizemore Suppression Order

The order shines the light on what has become a common scenario: a drug raid with some sort of seizure of illegal drugs, and then there is a civil forfeiture proceeding in WV State Court, in which the owner of the items has all the items confiscated under color of law.  In this case, our lawsuit alleges that the state civil forfeiture machine had already seized and became the new owner of Mr. Sizemore’s home and 2017 pickup truck, before the criminal indictment was even served on him.  However, interestingly, the criminal prosecution exploded with the suppression order finding that the task force members lied to obtain the warrant.

I wonder what will happen?  We shall see…..

Open-Carry of Firearms in WV in 2019: “Am I being detained?”

This is the current state of open-carry law in West Virginia (in my opinion), and it’s tricky relationship with a police officer’s right to do a “Terry” frisk under certain instances, as of February of 2019. Note: government lawyers do, and will, disagree with my analysis.  But mine’s supported by the law. However, proceed at your own risk, and the law may change after I write this, especially since litigation is ongoing….

1. If you’re in a vehicle, and an officer has a suspicion you may be armed, or sees that you’re open-carrying, you may be frisked and temporarily disarmed; 

2. If you’re not in a vehicle subject to a traffic stop, a police officer must have some reasonable articulable suspicion that you are engaged in criminal activity in order to seize and disarm you. Open-carrying a firearm alone is not justifiable suspicion to perform an investigative detention, unless the officer has information that you are a prohibited person unable to possess a firearm.

91063853-D5A6-44CD-B396-8E75736D5093

Many of you have probably seen the recent lawsuit I’ve been involved with in the Michael Walker v. Putnam County case where we sued over the violation of Mr. Walker’s right to open carry a firearm in West Virginia.

The defense from the government so far is that they are allowed to perform what’s called a “Terry” stop and frisk when they see someone with a gun.  Just to clarify the law, since they obviously misunderstood then, and continue to misunderstand.

A person’s Fourth Amendment rights under the U.S. Constitution to be free from unreasonable search and seizure are triggered whenever a “seizure” occurs.

When does a seizure occur?

A person is “seized” within the meaning of the Fourth Amendment if, “ ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they “touched the defendant or made any attempt to physically block his departure or restrain his movement”; (v) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”; (vi) whether the officers informed the defendant that they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature”; and (vii) “whether, if the officer requested from the defendant … some form of official identification, the officer promptly returned it.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Gray, 883 F.2d at 322–23.

The Fourth Circuit has noted that though not dispositive, “the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis.” United States v. Black, 707 F.3d 531, 538 (2013) (citing Weaver, 282 F.3d at 310 (emphasis added)). In Black, the Court found that, “[i]t is clear that when Officer Zastrow expressly told Black he could not leave, Black was already seized for purposes of the Fourth Amendment.” Black at 538 (emphasis original).

When can a “seizure” be legal as a justified “Terry” Stop and Frisk under Terry v. Ohio?

Federal case law has long been clear that the police officers cannot perform a “Terry stop” of a person lawfully open-carrying a firearm for the purposes of checking his ID and running a background check to determine whether the person is a prohibited person, or to otherwise disarm him, without more.  Although brief encounters between police and citizens require no objective justification, United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002), it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868 (1968). 

To be lawful, a Terry stop “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752 (1980).  The level of suspicion must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009).  As such, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. 1868. Moreover, the Fourth Circuit has already made it very clear that in states where open carry is legal, such as West Virginia, if officers have no individualized information that a particular individual who is lawfully open-carrying is a prohibited person, the mere exercise of their rights by open-carrying “cannot justify an investigatory detention.”  Indeed, the Court held that “Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 540 (2013) (quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).

Occupants of a vehicle subject to a lawful traffic stop are a different analysis altogether, and are more likely to be subject to a Terry seizure.  An officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene. Robinson at 696 (2017 case) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

The importance of the Black case to open-carry rights in our circuit:

In 2013, Judge Gregory of the U.S. Fourth Circuit Court of Appeals, whom I have had the honor of appearing in front of, issued an opinion in the case of United States v. Black, 707 F.3d 531, 540 (2013), which is central to the rights of West Virginians to open carry firearms.  Although that case was from North Carolina, it applies equally here.  In his opinion, he admonished law enforcement for regularly abusing the Terry Stop procedure to violate the rights of lawful gun owners:

At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir.2011); Massenburg, 654 F.3d 480;United States v. Digiovanni, 650 F.3d 498 (4th Cir.2011); and United States v. Foster, 634 F.3d 243 (4th Cir.2011). Although factors “susceptible of innocent explanation,” when taken together, may “form a particularized and objective basis” for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion. 

Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See Powell, 666 F.3d at 188 (“[A] prior criminal record is not, standing alone, sufficient to create reasonable suspicion.” (citation omitted)). Moreover, we “ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the individualized suspicion requirement “have been upheld only in ‘certain limited circumstances,’ where the search is justified by ‘special needs’ ”—that is, concerns other than crime detection—and must be justified by balancing the individual’s privacy expectations against the government interests. Id. (quoting Chandler v. Miller, 520 U.S. 305, 308, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)); see Treasury Employees v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that suppress the normal requirement of individualized suspicion. 

Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14– 415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded. 

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections. 

United States v. Black, 707 F.3d 531, 540 (2013).

 

Summersville Speed Trap/Scam on Route 19 in West Virginia Claims an Innocent Disabled Man

UPDATE 8/20/18:  Our FaceBook post on the topic.

UPDATE 8/17/18: I obtained the Criminal Complaint from the incident.  It is indeed signed by both the sheriff’s deputy who was the arresting officer, as well as the Summersville PD officer.  It’s not a notarization, but it is a signature.  While it doesn’t make sense as to why they did it that way, that process would be legal.  The following is the full text of the narrative, which is sworn under oath as the probable cause basis for the arrest:

ON THE ABOVE DATE IN SUMMERSVILLE NICHOLAS COUNTY, WV, I CONDUCTED A TRAFFIC STOP ON A MAROON CHEVY COLORADO BEARING WV REG. XXXXXX FOR NO BRAKE LIGHTS.  THE DRIVER WAS IDENTIFIED AS JEFFREY JONES.  WHILE SPEAKING TO THE DRIVER I OBSERVED HIM TO BE DISORIENTED, DROWSINESS, CONFUSED, BLOOD SHOT EYES, AND HE DID HAVE SLURRED SPEECH.  MY FIRST OBSERVATION HE WAS SWEATING PROFUSELY AND DID HAVE HIS HEAT ON IN HIS TRUCK. HE WAS ALSO FUMBLING HIS ITEMS AND DROPPING MONEY OUT OF HIS WALLET.  I PERFORMED THE HGN TEST ON JEFFREY AND WHILE ADMINISTERING THIS TEST HE DID SHOW IMPAIRMENT. JEFFREY WAS TAKEN TO SRMC FOR A BLOOD DRAW.  WHILE UNDER MIRANDA, JEFFREY DID ADMIT THAT HIS BROTHER KENNY HAD GIVEN HIM A PILL THAT HIS WIFE TAKES FOR ARTHRITIS AND PAIN. A DRE EVALUATION WAS DONE ON JEFFREY. THE INFORMATION PROVIDED IN THIS COMPLAINT IS BASED ON THIS OFFICERS INVESTIGATION.

According to Mr. Jones’ brother, they picked his truck up later that same day/night at the local impound for the exorbitant sum of $350.00, and it was driven home, with a vehicle following behind.  The brake lights worked just fine.  The narrative included no allegations of improper driving.  That means, the only basis for the stop was for a improper equipment violation which didn’t exist.  In other words, it appears to be a lie.  Without improper driving, what other information did this deputy have to want to stop Mr. Jones?  The only information he had was the color of Mr. Jones’ skin.  This is unfortunate, but not unheard of.  The same basis was used to stop my client Antonio Tolliver.  That state trooper is now a former state trooper.

What does that mean?  If the State/Prosecutor can’t prove that the vehicle had no brake lights, in light of testimony and evidence from Mr. Jones’ family and friends that the car’s brake lights worked just fine, the stop will have been illegal.  Under the “fruit of the poisonous tree” doctrine, everything that happened subsequently, is inadmissible in court.  Even assuming the blood draw was legal, which is a big “if,” and the supposed statement about the pill for arthritis and pain was legal, they cannot be used against Mr. Jones.  The arrest, and everything which happened afterwards,  is unconstitutional and illegal.

So he’s driving perfectly normal, gets pulled over for an equipment violation which doesn’t exist, gets put through field sobriety tests and supposedly fails.  So why at that point didn’t they give him a breathalyzer?  Instead they call Deputy Junk Science to arrive, who took a class on recognizing people who had taken prescription drugs?  Then forcibly taken to a hospital and forcibly withdraw blood from his body? He was driving normally, and wasn’t bothering anyone.  The only thing he did wrong was drive into a notorious speed trap, where officers are itching to pull over someone who looks like they’re coming down from one of the rust belt cities with a load of heroin.  Which brings us back to racial profiling.  It would be interesting to look at some of the other cases of stops on Route 19 in Summersville over the past few years.


Yesterday, WVVA ran a story about Jeffrey Jones, a man local to Greenbrier County, who had an unfortunate encounter with the police in Summersville, West Virginia – a place with the reputation as a well known speed trap extortion racket.  As a disclaimer, I don’t represent him in any way, but I do know the man since he works at my local Kroger.  He is the nicest guy, always smiling, and always helpful.  Everyone loves him.  What other grocery store employee has customers that take photos such as these?

 

These photos speak for themselves, which were posted on the WVVA website.  From the article:

SUMMERSVILLE, W.Va. (WVVA) Jeffrey Jones of Lewisburg is no stranger to hard knocks. As a child, he battled Spinal Meningitis, a condition that left him 90 percent deaf and with one leg longer than the other.

“Growing up, I had Meningitis. Everyone always thought I was stupid because I couldn’t hear. And because I was the smallest in the class, everyone picked on me.”

Despite the physical limitations, Jones said he never misses at day of work keeping track of the carts at the Ronceverte Kroger; the same place where his family said he was hit by a car a couple years ago and broke a hip.

“He stops and checks on everyone everywhere he goes,” said his friend Brianna Barkley. “There’s not a person that’s a stranger. He spreads happiness and friendship to everyone he sees.”

That job may be in jeopardy after Jones said he was unlawfully stopped by a Nicholas County Sheriff’s deputy on Sunday, August 5th, for a broken brake light. He was arrested and charged with Driving Under the Influence (DUI).

Then there was a phone call from a local legislator, to the Attorney General’s Office on his behalf:

Through his work at Kroger over the years, Jones has made friends from all walks of life, including Greenbrier County Del. Jeff Campbell, (D) 42nd Dist., who on Tuesday, personally requested the West Virginia Attorney General’s Office for an investigation.

“I would like to see the charges dismissed. I would like to see the $350 he spent to get his truck out of impound reimbursed. I think his wages should be reimbursed. And I’d like to see an apology.”

Oops.  So the Summersville Chief of Police contacts the news station and makes a stunning denial:

UPDATE: Summersville Police Chief John Nowak said Thursday his officers did not participate in the arrest of Jeffrey Jones on Sunday, August 5th.

Although Patrolman R.L. McClung with the Summersville Police Dept. signed both pages of the criminal complaint, the chief said the officer merely notarized the document for the arresting officer, Deputy J.D. Ellison with the Nicholas County Sheriff’s Dept.

Ok, say what?  Your officer “notarized” a criminal complaint?  Here is a sample Criminal Complaint, which is actually a form provided by the West Virginia Supreme Court, from a recent case of mine (which resulted in a large settlement and an officer being fired):

ExampleCriminalComplaint

As you can see, there is no signature block for a “notarization.”  Criminal Complaints, which are standardized forms meant to comply with state and federal constitutional requirements applicable to the process of putting a person temporarily behind bars, are signed by the “Complainant,” who is almost always a sworn law enforcement officer.

The Criminal Complaint notes that the complainant must be present in person before the Magistrate, who will authorize the arrest and subsequent incarceration, assuming the Magistrate believes probable cause exists based on the sworn written testimony/explanation offered by the Complainant/Police Officer.

In my 12 years of experience practicing law around the State of West Virginia, I have never heard of a police officer “notarizing” the Criminal Complaint of another police officer.  And being a civil rights lawyer, I have examined probably thousands of Criminal Complaints.  It would be understandable for one officer to draft and sign the complaint where there were multiple officers involved.  They don’t all have to sign their name to the complaint.  But I’ve never heard of another officer, from an entirely different agency, who wasn’t even present at the incident/arrest, to apply under oath for the signature of the Magistrate, which is effectively an arrest warrant.  That would be hearsay, and would not establish probable cause.  No competent Magistrate would sign such a Criminal Complaint.  The only exception would be, if the Magistrate did not know because that fact was concealed.

I’m not posting Mr. Jones’ Criminal Complaint, but somebody has some explaining to do in Summersville.  I wonder how many other arrests/tickets given by the county sheriff’s department were actually signed by a city police officer in Summersville, given their reputation as a well known speed trap extortion operation?  Hmmm.  Like all the old ways in West Virginia, it all comes down to money.  Maybe when the legislature finishes cleaning up the Supreme Court mess, they can come follow this money trail in Summersville.  I’m sure he isn’t the only victim – just one innocent enough to have people stand behind him.