ATV laws in West Virginia and McDowell County, W. Va.

So a few days ago, I represented a guy down in McDowell County, West Virginia, on a misdemeanor charge of driving on a two-lane road in an ATV/UTV/side-by-side. West Virginia law allows you to do this. But apparently there is confusion, or ignorance, in the local sheriff’s department and/or prosecutor’s office. We were forced to have a trial, which resulted in a not guilty verdict. Here’s the actual criminal complaint charging my client with the non-crime of operating an ATV on a two-lane road in West Virginia:

Clearly this police officer was wrong about the law.

W. Va. Code Section 17F-1-1 allows ATVS to:

  1. Operate on any single lane road (most roadways in rural West Virginia).
  2. Operate on a two-lane road for a distance of 10 miles or less, so long as the ATV it is either on the shoulder of the road, or as far to the right on the pavement as possible if there is insufficient shoulder to ride on, and at a speed of 25 mph or less, in order to travel between “a residence or lodging and off-road trails, fields and areas of operation, including stops for food, fuel, supplies and restrooms.” If operated at night, an ATV must be equipped with headlights and taillights, which must be turned on – obviously. Read it for yourself, here: https://www.wvlegislature.gov/WVCODE/Code.cfm?chap=17f&art=1

So, slightly confusing and a few grey areas, but if you’ve been around the Hatfield & McCoy Trails, you know that it’s necessary to use a two-lane road at times to get where you need to go on an ATV. And in other counties, where there are no Hatfield & McCoy Trails, we still need to go down two-lanes at times to get from one place we’re allowed to ride, to another (whether farms/fields/one-lanes/gas stations, etc.)

Me negotiating down a black diamond trail in the Hatfield & McCoy Trail system. Pocahontas Section, I believe.

Unfortunately however, when we arrived to court on this particular case, the prosecutor looked at me in amazement when I told her that the client hadn’t committed a crime, even assuming all the allegations in the criminal complaint are true. She said dismissively that the client could plead guilty and pay the fines. Of course, I said, “no way, Jose.”

So we had a trial. During the trial, the charging police officer testified that no ATVs are ever allowed to be on a two-lane road, and that his supervisor instructed him, in accordance with this, to “clear” ATVs from the roads, because the Hatfield & McCoy system was closed by the Governor due to COVID-19.

But that has nothing to do with the statute. The Governor can’t change the ATV laws by executive order; nor did he attempt to. Accessing the H&M trails isn’t the only reason ATVs are used in West Virginia. The officer cited 17F-1-1 as his legal authority to “clear the roads.” But in reality, the law still says what it says. Therefore, the magistrate judge correctly found my client not guilty.

There had been no allegations of unsafe or improper operation of the ATV – just that he was on a double yellow line. The officer testified that he didn’t know where the client was coming from – nor where he was going. He had no evidence that my client had been illegally operating on the H&M trail system. The complaint itself corroborates this. It didn’t mention anything other than the fact that he caught him on a two-lane.

However, there were facts pertaining to the officer’s conduct. He got angry and took the citation back, after the mayor of the town where this occurred – Northfork – apparently said that ATVs were welcome and allowed in her ATV-friendly town. Muttering the “F word,” the officer left the city hall, confiscated citation in hand. The testimony at trial was that about an hour later, the officer showed up at my client’s residence – the client wasn’t even home at the time – and threw the citation inside the empty, parked ATV in the driveway. That wasn’t the reason for the not guilty verdict, just a bizarre way to re-issue a ticket. But in any event, it was a non-crime, so the verdict was rightly “not guilty.”

Following the trial, I posted on Facebook that my client had been found not guilty, and that the Governor’s tyrannical executive orders had no effect on the state’s ATV laws, and expressed disbelief that the local sheriff’s department and prosecutor’s office would hassle ATV riders, when that’s really the only thing the local economy has going for it at this point. Did I bash a county by saying this? No, facts are facts. I said nothing about the county, unless you’re referring to the sheriff’s department and the prosecutor’s office prosecuting an innocent man for a non-crime.

Let’s look at the facts though…..

To argue that McDowell County doesn’t have a crisis economy is to stick your head in the sand. Pointing this out is not bashing, nor exploiting, the county. Anyone who makes such an accusation, is either ignorant, or a willing propagandist. Hell, in 1963 – I’ll repeat: 1963 – President John F. Kennedy said:

I don’t think any American can be satisfied to find in McDowell County, West Virginia, 20 or 25 percent of the people of that county out of work, not for 6 weeks or 12 weeks, but for a year, 2, 3, or 4 years.

The situation has only worsened there. McDowell County has been classified as a “food desert” by the USDA. In 2017, there were two full-sized grocery stores serving the county’s 535 square miles. The only Walmart super center in the county closed in 2016 Coyne, Caity (April 7, 2018). “In McDowell County ‘food desert,’ concerns about the future”Charleston Gazette-Mail. Retrieved January 19, 2020. I don’t know that I’ve ever seen another closed Walmart anywhere in the country.

Vacant Walmart building in Kimble, W.Va.
CREDIT ROXY TODD/ WVPB; https://www.wvpublic.org/post/what-happens-when-walmart-closes-one-coal-community#stream/0

State officials estimate that there are between 5,000 to 8,000 abandoned homes and buildings in McDowell County alone that need to come down. Legislation was introduced this year to fund the removal of many of these “blight” areas. See https://www.register-herald.com/opinion/editorials/editorial-removing-blight-swope-s-measure-important-to-west-virginia/article_6d4359cf-8b21-5430-9769-2f874e8fee9b.html They’ve been working on this for years. From a newspaper article from 2015:

WELCH — For years, it has been difficult for McDowell County officials to recognize the obvious fact that deserted and dilapidated structures countywide represent a negative image for visitors to the county.

“U.S. Route 52 is the gateway to our county,” Harold McBride, president of the McDowell County Commission said during a press conference Friday morning at the McDowell County Public Library in Welch. “It looks like a Third World country,” he said and added that most of the dilapidated buildings are owned by people who live outside the state and “think they have something.”

https://www.bdtonline.com/news/officials-and-coal-operators-work-to-remove-blighted-structures/article_e4961188-00f9-11e5-86d4-4b27287a4886.html?mode=jqm

From the Charleston Gazette in 2013:

There were 100,000 people in McDowell County in 1950. Today, there are about 22,000 residents,” Altizer said.From 2000 to 2010, McDowell County’s population dropped by nearly 20 percent, from 27,329 people to 22,064 people, according to the U.S. Census Bureau.”It is so sad we are losing so much population. Half of our homes are on homestead exemption, which lowers property taxes for people who are over 65 or disabled,” Altizer said during a recent interview in the McDowell County Courthouse.Today, Altizer said, most income to county residents come from coal and natural gas jobs, or from checks retired people receive — Social Security, black lung, the Veterans Administration and United Mine Workers.”The monthly West Virginia Economic Survey prepared by Workforce West Virginia recently reported there were about 6,000 people working in the county, many of them with government jobs or fast-food jobs. We have an older population today. And there are not new jobs here,” Altizer said.”Coal and gas are keeping us going. 

https://www.wvgazettemail.com/business/mcdowell-county-fighting-long-term-decline/article_cb381937-e129-59fd-8d7d-f1fb88dbe6a1.html

Here’s an interesting article, with photos from an actual photographer, rather than the few I snapped with my obsolete iPhone. Take a look for yourself and determine if the few pictures I snapped were somehow misleading about the blight in the county:

https://architecturalafterlife.com/2018/01/12/welcome-to-welch/

From the article:

This decline in work lead to the creation of modern era food stamps. The Chloe and Alderson Muncy family of Paynesville, McDowell County were the first recipients of modern day food stamps in America. Their household included 15 people. The city of Welch, and crowds of reporters watched as Secretary of Agriculture Orville Freeman delivered $95 of federal food stamps to Mr. and Mrs. Muncy on May 29, 1961. This was an important moment in history, as it was the first issuance of federal food stamps under the Kennedy Administration. This federal assistance program continued to expand for years to come, and is commonly used across the United States today.

https://architecturalafterlife.com/2018/01/12/welcome-to-welch/

Fortunately for the county, in 2018, the state opened two new trail connections in McDowell County. From a May, 2018 newspaper article:

WELCH — Two new ATV trail connections opening today in McDowell County will give visitors direct access to the city of Welch and the town of Kimball, the Hatfield-McCoy Regional Recreation Authority’s executive director said Tuesday.

“As of in the morning (today), we’ll have the town of Kimball and the city of Welch will be connected to the Hatfield-McCoy Trail in the Indian Ridge system,” Executive Director Jeffrey Lusk said. “This will allow riders of the trails to go into those communities to get food and fuel and to stay. These are two new towns that weren’t on the system. Up until today, the only two towns that were connected were Northfork and Keystone….

The new Warrior Trail will connect with Gary and Welch. ATV riders will be able to travel from the town of Bramwell to the town of War starting on Labor Day, he added. More lodging opportunities are needed to help McDowell County’s communities benefit from the increase ATV tourism traffic.

“We’re opening the Warrior Trail System up on Labor Day Weekend,” Lusk said. “We’re in desperate need of places to stay in War, Gary and Welch come Labor Day Weekend.

Tourism traffic continues to grow on the Hatfield-McCoy Trail’s overall system, Lusk stated. Last year, overall permit sales were up by 15.1 percent, and both Mercer and McDowell Counties had the highest growth in sales. 

https://www.bdtonline.com/news/new-trail-links-opening-on-hatfield-mccoy/article_6d82ce36-5e22-11e8-a13b-a3912708cd04.html

Being an ATV rider myself, I know first hand how the community benefits from the ATV economy. Local entrepreneurs now have opportunities to open ATV resorts, restaurants, and other businesses, which cater to ATV riders. ATV riders bring money. These new ATVs are 15-30k vehicles, each, when it comes to the side-by-sides, and not far off from that for the individual four wheelers. Watch them drive in. They’re driving 70k trucks, pulling 10k trailers, in many instances. They’ve invested heavily in the hobby. They spend money, not only on their equipment, but on food, lodging, gas, and so on. And they come from all over. I’ve even seen guys who drove all the way from Mexico to ride these trails.

Riding somewhere down there….

Some of them even invest in local real estate, such as the client I represented in this case, who loved the community so much, he bought his own place. But go on and attack me for daring to “bash” McDowell County…. So let’s continue with some facts, instead of knee-jerk emotion.

What are some of the side effects of the economic problems?

Of 3,142 counties in the U.S. in 2013, McDowell County, West Virginia ranked 3,142 in the life expectancy of both male and female residents. See http://www.healthdata.org/sites/default/files/files/county_profiles/US/2015/County_Report_McDowell_County_West_Virginia.pdf,; see also https://en.wikipedia.org/wiki/McDowell_County,_West_Virginia

 Males in McDowell County lived an average of 63.5 years and females lived an average of 71.5 years compared to the national average for life expectancy of 76.5 for males and 81.2 for females. Moreover, the average life expectancy in McDowell County declined by 3.2 years for males and 4.1 years for females between 1985 and 2013 compared to a national average for the same period of an increased life span of 5.5 years for men and 3.1 years for women…..

Then there’s the drug problem. In 2015, McDowell County had the highest rate of drug-induced deaths of any county in the U.S., with 141 deaths per 100,000 people. The rate for the U.S. as a whole is only 14.7 deaths per 100,000 people. (Same citation).

So back to my original point. There’s 99 problems there, and ATVs ain’t one of them. So why hassle ATV riders when they’re bringing money, jobs and fun into the local economy?

Again, ATVs are allowed on single lane roads in West Virginia, and are also allowed on two-lane roads, to get from one place they’re allowed to operate, to another place they’re allowed to operate, so long as it’s a distance of 10 miles or less, and so long as they operate on the shoulder, or as far as the right as possible, and under the speed of 25 mph. Counties and cities in West Virginia are granted the authority by the legislature to increase ATV freedoms. Other than interstate highways, they can authorize ATVs to use two lanes within their jurisdictions with no restrictions whatsoever. That would be what signage would refer to as being “ATV Friendly.”

That’s the law anyways. Whether or not law enforcement and prosecutors in any particular county care or not…. well that’s a different issue.

Update regarding the new Senate Bill 690:

Senate Bill 690 is now in effect in West Virginia. ATVs, side by sides, UTVs, can now be made “street legal” in West Virginia. They are calling this group of vehicles with confusing names, “Special Purpose Vehicles.”

SPVs can now be turned into “street legal SPVs.” The following requirements must be met:

(1) One or more headlamps;

(2) One or more tail lamps;

(3) One or more brake lamps;

(4) A tail lamp or other lamp constructed and placed to illuminate the registration plate with a white light;

(5) One or more red reflectors on the rear;

(6) Amber electric turn system, one on each side of the front;

(7) Amber or red electric turn signals;

(8) A braking system, other than a parking brake;

(9) A horn or other warning device;

(10) A muffler and, if required by an applicable federal statute or rule, an emission control system;

(11) Rearview mirrors on the right and left side of the driver;

(12) A windshield, unless the operator wears eye protection while operating the vehicle;

(13) A speedometer, illuminated for nighttime operation;

(14) For vehicles designed by the manufacturer for carrying one or more passengers, a seat designed for passengers; and 

(15) Tires that have at least 2/32 inches or greater tire tread.

Senate Bill 690

Golf carts are being excluded:

(uu) “Low-speed vehicle” means a four-wheeled motor vehicle whose attainable speed in one mile on a paved level surface is more than twenty miles per hour but not more than twenty-five miles per hour.

WV Code §17A-1-1(uu)

A “Special Purpose Vehicle” is defined as:

“Special purpose vehicle” includes all-terrain vehicles, utility terrain vehicles, mini-trucks, pneumatic-tired military vehicles, and full-size special purpose-built vehicles, including those self-constructed or built by the original equipment manufacturer and those that have been modified.

There is a 20 mile limit on the travel on a two-lane road. Controlled-access highways are excluded. That would be interstates and four lanes where there are dedicated access points (on ramps, off ramps, and the like).

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…..

Braxton County Wrongful Arrest Case Working its Way through the System…. Can you lie to the police in West Virginia?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Thoughts from the news: Casey Anthony and NC Troopers

Yes, once again it has been sometime since I have posted.  I just don’t have the time that I used to to comment on various things.  That being said, there are a few different things which have popped up in the news that I just can’t resist.

1. Casey Anthony.  Good for her attorney calling out all of the talking head lawyers who gave their b.s. opinions on the case throughout the last several years, and especially during the last few days of the trial.  He also gave the media “the bird”.   I was really getting aggravated with all of the “former prosecutor”[s] running their mouth on every cable channel about how she was going to be convicted of first degree murder and about how good the prosecutors were.  They are pretty much all the same.  They are mostly blonde (sometimes brunette) females.  Almost none of them could be considered unattractive or overweight.  They have loud, big, mouths and holier-than-thou attitudes – especially if other females/children are somehow involved in the subject on which they are running their mouths.  Fox News / CNN have determined that they are qualified to bestow their opinions onto us due to their looks, and due to the fact that they used to be a “prosecutor.”  Then there is Nancy Grace.  She is the queen of the former prosecutors.  She actually does have experience.  She is a defendant’s worst nightmare: a bitter loud-mouthed prosecutor who is willing to do unethical things in order to win.

It was courageous for these 12 jurors to acquit Casey Anthony despite the all-knowing public and media having already deemed her guilty.  How dare politicians/pundits condemn the jurors for their decision.  I have said it before and I will say it again: it is the “law and order” people in our midst who will be our ruination.  They are obsessed with their own personal safety.  The same people who claim to stand for smaller government and more individual freedom are often the first ones to condemn jurors for upholding our constitution.  The reason is because they are cowards: they are afraid for their own safety and so they worship law enforcement.  They are also playing politics and know that the majority of voters / people who watch the news are older citizens, who are also obsessed with their own safety.  We need less laws, not more.

I could care less about Casey Anthony.  I believe she was involved in her daughter’s death.  However, it was very satisfying to see the prosecutor, Linda Drane Burdick, who was so pompous, arrogant and self righteous in her demeanor be brought so low by the loss of the century.

2.  The North Carolina troopers who arrested the trial lawyer’s wife.  Being a Tarheel, I have been watching what has been going on with the NC troopers and the trial lawyer’s wife.  Again, it is sickening that politicians and supposed proponents of freedom and smaller government support police-state behavior.  Even though NC, like VA, is a conservative state politically and socially, it is a police-state when it comes to law enforcement.  For some crazy reason, conservative voters support massive government when it comes to Criminal Law – including its creation, enforcement and prosecution.  Again, I believe they are either older people obsessed with their safety, or they are cowards (they place fear of personal safety over our country’s liberty), or they are obsessed with being politically correct (it is generally politically popular, especially where there are senior citizen voters, to be “tough on crime”.

Anyways, this trooper pulls over a relatively attractive woman driving a Lexus SUV.  Big surprise.  I have discussed before the intense security threat posed by attractive women driving expensive SUVs.  The trooper, who of course sports the obligatory military-esque hairdo, asks the woman if she was drinking.  She had a sip of wine at some banquet she was driving home from.  The trooper then makes her get out of the car and asks her to blow in the portable BAC device.  She refuses and instead opts to be taken to the real breathalyzer machine (they used to use “intoxalyzer 5000’s” in NC).  In NC, you are entitled to call a witness for the test and the witness has 30 minutes to get there.  Naturally she calls her lawyer husband.  The husband shows up and she blows two 0.00’s.  Obviously she is not intoxicated.  There was no other evidence of intoxication.

North Carolina is a DWI state (or at least it used to be when I prosecuted DWI’s there), meaning that you couldn’t convict somebody of DWI based on the BAC alone.  The officer would have to testify to erratic driving and/or the person failing field sobriety tests.  You are legally allowed to be above the BAC of 0.08 if it was not proven that you were in fact intoxicated.  At this point, since the lawyer husband is present and is angry at the kidnapping of his wife, the trooper refuses to release the woman, and instead is arrests her and keeps her in handcuffs.

So in essence, a private American citizen was taken in handcuffs out of her car and incarcerated/kidnapped.  But that’s okay right?  According to a local magistrate, and according to the cops, that is just standard procedure.  He was just following procedure.  These people ought to be run off of the taxpayer payrolls.  How dare they tell the citizens that it is their procedure to arrest somebody with no probable cause and hold them against their will.  Impeachment is also a procedure.  Maybe the magistrate, and the storm trooper, should be prosecuted for kidnapping and battery.  We can follow procedure to the letter.

The storm trooper then allows the woman’s husband to follow him to the magistrate’s office so that she could be arraigned and post bond, etc.  While following the storm trooper the husband gets pulled over by another storm trooper – for speeding (despite the fact that he was following another trooper).  The troopers report stated that he did not have any communication with the other trooper and that there was no set-up involved.  First of all, anyone who would believe that is a complete fool.  And anyone who would deny that it was a set-up is a complete liar.  Since then, text messages have been released from between the officers which show that there was communication.  Not only that, but the officers were discussing the lawyer and his wife and saying things like “f**k him” and “f**k her”.  The second trooper, who pulled over the husband, sent the following text message to his trooper buddy, who was transporting the wife:

Trooper Smith then wrote at 12:31 a.m.: “TELL HIM IF HE WANTS TO COP AN ATTITUDE TO FEEL FREE AND COME BACK AND ILL S—– HIM THAT SPEED.”

How dare these troopers use their sacred position of trust to violate the liberties of law-abiding citizens of this country.  Nevertheless, ignorant kool-aid drinker NC state senator Thom Goolsby decided to run his mouth in the media and support the troopers.  These are the dangerous ones.  The politicians who are so worried about keeping their political jobs that they are willing to throw innocent citizens under the bus.  This guy is willing to allow troopers to kidnap citizens under color of law just to spite a trial lawyer and his wife.  He needs to be run out of office.

Not only should these delta-force wannabes be fired, they should be criminally prosecuted for kidnapping and battery.  If they are allowed to keep their jobs, it is telling every other crooked cop out there that it is okay to abuse their position of trust in order to spite somebody.

Tyrannical prosecutors protecting tyrannical cops

When you cross a police officer, in many West Virginia counties, you also cross one or more “badge bunny” prosecutors.  I have found that the difference between a good prosector and a bad one is their backbone and their integrity.  Confident, knowledgeable, experienced and honest prosecutors are independent.  They do what is right.  They know what is right – and what is wrong.  Others lack confidence, as well as the backbone to be independent from law enforcement.

As you venture between various counties in West Virginia, you will encounter prosecutors of both types.  I have encountered the badge bunny prosecutor derangement syndrome in one particular West Virginia county several times now.  In these badge bunny jurisdictions, even the magistrates are not immune from infection.  In fact, some are former police officers themselves.  Unfortunately, almost none are former lawyers.  Hell, who needs legal training when deciding bothersome legal issues, such as one’s freedom?  Magistrates are almost always infected where there is an outbreak among prosecutors.  If a prosecutor or a cop says the sky is purple, then the sky is purple.  Defendants and defense attorneys are scum – even if they are not scum.  They are worthless bastards.

If you want to experience injustice, piss off a cop in one of these counties.  For instance, you could have an affair with his wife.  He may be of the sort to arrest you illegally and beat you down when no one is looking, and while you are handcuffed.  A badge bunny prosecutor would proceed to prosecute you.  You could show him evidence that you were illegally arrested, and that you were illegally beaten.  The evidence could be indisputable.  But your barking up the wrong tree.  Unlike the good prosecutors, justice is not his concern, getting convictions is.  Protecting “his” or “her” law enforcement officers is priority numero uno.

So you then could file some civil lawsuits.  Then you have really made it personal to the prosecutor.  Justice gets thrown to the wayside altogether, and you now  have crosshairs on your back.  Your only way out is through a trial.

Now compare this to the often-seen scenario when a police officer violates the law.  He gets a sweetheart deal and fades from the spotlight conviction-free.  If it doesn’t piss you off now that this injustice and tyranny exists in West Virginia, then just wait until it happens to you.  Good people get wrongfully arrested in West Virginia.  Then you will need a lawyer who has the guts to stand up to these scoundrels and fight them on their home field.  Choose carefully.

So far away, yet so similar…

While perusing Fort Worth criminal defense attorney Shawn Matlock’s blog, I came across a post describing the world of Texas’ Magistrate Court, which seems to be strikingly similar to West Virginia’s Magistrate Court. Apparently we are not that unique with respect to the concept of speed-pleading. And I thought that I was the only one who felt uncomfortable in that type of judicial atmosphere…

– John H. Bryan, West Virginia Attorney.

This Blog Makes Front-Page News…

Note: this post was initially much more extensive.  Pursuant to the advice of my beautiful wife, against whom I have never won an argument (and suspect I never will), and who’s advice has the usual effect of making my hot-heated initial reactions seem childish and ineffective, I have revised this post.

It seems that my humble commentary regarding the Register-Herald op-ed piece detailed in my last post touched quite a few nerves at the Monroe Watchman newspaper. For those of you who may not know, the Monroe Watchman is the main newspaper for Monroe County, West Virginia, and it has been continually published since 1872. It’s a great paper. I read it every week, and I am also a paying advertiser. They are also located right across the street from my office building.

Why should they care about my commentary in this post? Because the Watchman is owned by the family of the former prosecutor who I allegedly criticized, and understandably, they are protective of their family members. And also understandably, the former prosecutor is deeply hurt as a result of the lost election.  And I completely understand the hurt, as I suffered through my father’s election defeat as a college student.  It’s not easy to see negative television commercials about your father running during prime-time every couple of minutes for a month straight.  Your natural reaction is to lash-out at your perceived threat, and I guess that that is what I was doing as well in my initial response in this post.  And so I also understand why the former prosecutor feels the need to protect himself and his family.

This situation is not about me, it’s not about the former prosecutor, nor the current prosecutor, nor the magistrate – nor the Watchman.  This is about Mr. Watson, who made the intentional choice to consume alcohol and drive a dozen children off of a 120 foot cliff in a Monroe County school bus.  This is about Mr. Watson, who tried to save his own skin by lying and claiming that he consumed Nyquil the night before.  This is about Mr. Watson, who misled much of the community into believing that he was innocent, only to let them down with the sad truth – that he had an alcohol problem.  But, he still didn’t want to lose his job, and he didn’t want to lose his retirement.  That was what Mr. Watson was worried about.  Was he worried about the children on board his reckless DUI school bus?  No, he was worried about himself.  This is about the fact that Mr. Watson received a plea deal where only two days was recommended, and where he only received twelve (to serve on the weekends at his leisure).  

When I was working as a young prosecutor in Raleigh North Carolina, I tried a man for 2nd offense DUI.  He was convicted and sent to jail for one year.  There was no accident, no children in the car, no adults in the car – nobody injured whatsoever.  He was just some guy who got pulled over and failed some field sobriety tests.  That was a serious charge.  He was the first person I sent to jail as a prosecutor.  I’ll never forget the image of a deputy walking up behind the man and putting him into handcuffs.  Imagine if this man, when he was pulled over, had a child in the car?  Imagine if he had a dozen children in the car.  Imagine if he had a dozen children in the car and drove off a 120 foot cliff.  Imagine that he did this with your child in the car, entrusted to his care, and that afterwards he lied and told you that it must have been the Nyquil he took the night before?  My point is, this is about protecting the children.  We should have made an example of this man.  He was a school bus driver for heavens sake!  The citizens of Monroe County trusted him to drive their children to school and back every day!

I have been on the other side of the coin as well.  As a defense attorney in Greenbrier County several years ago, I had a client who was convicted of 2nd offense DUI.  We begged and pleaded to the judge for a light sentence, since he wanted to join the military.  The guy was sentenced to one year in jail – and he actually went to jail for about 8 months before he got out of jail.  He wore the orange jumpsuit and ate the awful food for breakfast, lunch and dinner – everyday.  He did his time.  He didn’t whine or complain.  He served his debt to society. 

My argument is simply this: did this man not deserve a real punishment?  Would it really have been a great miscarriage of justice if this man had really been forced to serve a real sentence in jail?  I don’t think so.  It happens all the time in 2nd or 3rd offense DUI cases.  Is it not more egregious for a man to get drunk and then drive a school bus loaded with children?  And then to actually crash off a cliff?

Since the Editor criticized me for making “no effort to discuss the issue with Mohler before writing [my] scathing assessment…” then I will reiterate the same offer that always exists on this blog – both to subjects of my posts and to casual observers: if you disagree with something I have said, then please, by all means, leave a comment on the blog. As always, anonymity will be maintained where requested.

– John H. Bryan, West Virginia Attorney