One of the developers of the multi-million dollar Walnut Springs development in Monroe County made the news last month for pleading guilty in federal court to bank fraud charges.

See Monroe Developer Pleads Guilty to Federal Charges

My clients, as well as myself, were surprised at being the last to know about this development given the fact that we assisted the FBI in developing their case, and were initially labeled as victims.  However, the wheel of justice came to rest on labeling the bank as the victim, leaving the actual victims out of the equation altogether.  Thankfully, the media picked up on this and published another story.

People who purchased land more than a decade ago on a Monroe County mountaintop aren’t surprised, their lawyer says, that the man who was supposed to develop that land pleaded guilty to a federal crime.

What is surprising, said Monroe County lawyer John Bryan, is that developer Daniel Berg hasn’t been charged by federal prosecutors with lying to the people who bought the land. Many of those people claim in a lawsuit that Berg lured them to purchase overpriced property that he had promised to turn into a multi-million-dollar housing subdivision, but never did.

“My clients were surprised,” Bryan said Friday. Surprised because they aren’t considered the victims in the federal case against Berg, he said.

Bryan said he and his clients spent a lot of time working with federal authorities during their investigation into the mountaintop development.

“We were told there was going to be a prosecution and we spent years working with federal investigators, doing victim interviews and showing how they were financially impacted by the fraud,” he said.

Bryan represents 33 plaintiffs in a lawsuit filed in 2009 in Monroe County Circuit Court who purchased property on the mountain and allege a former United Bank vice president worked to inflate appraisals of the property. The lawsuit also claims United Bank knew of the scheme. The bank has denied the allegations, according to court documents.

See Monroe Land Purchasers Say They’re Victims of Developer’s Crime, Charleston Gazette-Mail, by Kate White.

Article in the Charleston Gazette-Mail:

A retired West Virginia State Police trooper claims in a lawsuit that he was beaten up two years ago by three Alderson police officers.

John E. Bumgarner, a retired trooper, filed the lawsuit against the town of Alderson on July 1 in federal court in Beckley. He claims the town, through its police department, encourages the use of undocumented excessive force.

The Complaint:

In the Sunday edition of the Charleston Gazette-Mail, the Carpenter lawsuit, which we recently filed against several West Virginia state troopers, was highlighted in a lengthy article.

State Water Development Authority Director Chris Jarrett had his nephew, a West Virginia State Police officer, send troopers to conduct a search of an Elkview home as part of a custody battle over Jarrett’s 16-year-old granddaughter, according to a lawsuit filed in federal court. 

. . .

The lawsuit asserts that Jarrett’s nephew, Sgt. J.D. Perry, used the sex offender verification requirements as a “‘Trojan horse’ to get into the [Carpenters’] residence in order to search for evidence sought by Jarrett.”

Amid the investigation, Jarrett allowed a trooper to question his granddaughter at the state water agency’s headquarters building in Charleston, said John Bryan, the Carpenters’ lawyer. The officer searched the girl’s cell phone for pictures of her parents using drugs, according to a water agency employee who witnessed the search. 

. . .

The Carpenters’ lawsuit alleges that Jarrett, with the assistance of his nephew who was stationed at the State Police’s Quincy detachment in 2014, sent troopers to the Carpenters’ home to gather information to use against them in Kanawha County Family Court.

. . .

The Carpenters’ lawyer said the lawsuit is the first of its kind in West Virginia to address allegations of troopers using the sex offender verification process to conduct an illegal search.

“I think it’s a pattern or practice that they’ve probably been engaging in for a while and nobody’s called them out on it,” said Bryan, who works from an office in Monroe County.

Bryan said prosecutors across the state have previously told him about troopers using the sex offender registration verification process to conduct warrantless searches.

“Then when I heard about it in this case I looked into it and, when I looked up the actual police reports where these state troopers wrote what their conduct was, I was surprised to see it in black and white,” Bryan said.

Bryan said the Carpenters’ case is similar to a lawsuit he filed that prompted troopers to be re-trained on “no-knock” search warrants.

In that case, a 72-year-old Doddridge County man ended up dying after a State Police SWAT team conducted a no-knock entry into his home. In December, the State Police’s insurance company agreed to pay $85,000 and retrain troopers about no-knock search warrants. A search warrant must be obtained before police are allowed to enter without first identifying themselves.

– See more at: http://www.wvgazettemail.com/news-cops-and-courts/20160605/wv-water-agency-director-had-troopernephew-direct-sex-offender-search-during-custody-battle-suit-alleges#sthash.P1i2Kp1t.dpuf

As was reported in the Charleston Gazette today, on Friday, together with Ron and Scott Windom of Windom Law Offices in Harrisville, WV, we filed a lawsuit against Ritchie County, including the Sheriff of Ritchie County, and the Chief Administrator.

The Gazette reported:

A former Ritchie County sheriff’s deputy has sued the sheriff who fired him, claiming his civil rights were violated when the sheriff installed a GPS tracking device on his police cruiser without a warrant.

James Asbury, 49, of Berea, filed the lawsuit against Ritchie Sheriff Bryan Backus and Ronald Barniak, a former sheriff in Ritchie County and Backus’ chief administrator. In the complaint, which was filed in Ritchie Circuit Court on Friday, Asbury claims that Backus and Barniak have a history of violating deputies’ constitutional right to be free of unreasonable search and seizure.

Yes, even though the County owns a police cruiser in the possession of a deputy, federal law provides that a GPS search of that vehicle cannot be performed without a warrant.  Police officers have constitutional rights just like the rest of us.

What is even more interesting about this story is that my client, Jim Asbury, was a former defendant in an excessive force 1983 lawsuit I filed on behalf of Brian Sawyer – which was perhaps my most infamous case.  But it doesn’t stop there.  Opposing counsel, at least at the pre-litigation stage, is the same lawyer who represented Deputy Asbury at the two jury trials, and two Fourth Circuit appeals against me in that case.  So, same police officer involved.  Same two lawyers.  But now the one suing him is representing him.  And the one defending him is opposing him.

A little more from the Gazette article:

Asbury’s lawsuit also claims that the sheriff told grand jurors about the locations Asbury traveled while off duty and reminded them that their taxes pay for Asbury’s expenses.

“You guys need to know that I think everybody here knows me, and they know that I handle problems. Look at my record with employees in the past,” the lawsuit alleges the sheriff told grand jurors. “I try to take care of problems … It’s your money … It’s taxpayer money that he was taking from … It’s a very bad situation.”

This sheriff appears to be using a criminal grand jury as an HR department.  I guess that’s one way around the civil service rights of deputies.

We filed suit yet again against the West Virginia State Police for what appears to be another pattern and practice of unconstitutional conduct.  The WVSP is tasked by statute with “verifying” sex offender registry addresses.  As we allege, the only time this particular client was ever “verified” was when they were seeking to search for unrelated evidence without the bother of swearing under oath to a magistrate or judge that probable cause exists for a search warrant.

In other words, do registered sex offenders who are not on parole, probation, or supervised release, have any Fourth Amendment rights not to have their home searched at the will of the WVSP with no warrant?  I don’t think so.

I got fourth place in the open heavyweight division.  But there were some very big guys in my weight class.  It was great fun.

On Monday, I had the pleasure of sitting through the sentencing of Betty Brown, who is the defendant we sued in the elderly abuse civil case that won a good-sized jury verdict back in December of 2014.  The sentencing made the news.  She was Vice President of a local bank where my elderly client kept her modest amount of money (before it was stolen).

Mrs. Brown pled no contest to a felony and chose not to speak in her own defense.  What could go wrong?  Both the prosecutor and the judge threw the proverbial book at her.

In any event, I am proud that the justice system has sent a message to other sharks out there who are thinking about stealing from the elderly.  That elderly person might walk into my office one day and expose you.  And I will take you down, just like Betty Brown.

I ended up getting much of the stolen money back, all of which went directly towards my client’s care.

Me with the family following the jury verdict:

We settled the Elton Wine lawsuit against the West Virginia state police on the eve of trial.  Part of the settlement includes the re-training of all West Virginia State Police officers on the knock and announce requirements under federal constitutional law.  The other part of the settlement is the payment of $85,000.00 by the state police’s insurance carrier.

The settlement is important because there is no longer any doubt that law enforcement in West Virginia have a legal obligation to “knock and announce” prior to entering a home pursuant to a search warrant.  They can no longer perform a no-knock entry without either a no-knock warrant signed by a judge, or exigent circumstances.

Media reports:

The State Journal

I don’t believe I ever posted anything about this case. It involves the death of Elton Wine, a 71 year old man who was suspected of having a fugitive in his home. A search warrant was obtained for his home and a “no-knock” entry was made by the WVSP “SRT” (SWAT) team into his home. He died shortly thereafter while in police custody. The fugitive was not found in his home. The case is currently in litigation.

Important in this case is the fact that officers admit to executing a “no-knock” entry into the home, but did not have a warrant authorizing such an entry. This is an important area of civil rights law which is currently developing. We’ll see what happens.

News Report

Just to give an update, we have recently settled several police misconduct / civil rights cases. However, the insurance companies, and defendants, have started including confidentiality, or quasi-confidentiality provisions in them. So. . . . I can’t really comment. I really do work on them to completion. They’re not just dying on the vine.

I’ve recently been contacted about some cases with some appalling accusations of police misconduct, and I’m excited (if that’s the right word) to prosecute them. I still have time for another [good] case or two to work on this year if anyone wants to bring them to me. I also am still accepting co-counseling arrangements with other lawyers who think they have a client with a case.