Category Archives: West Virginia Gun Laws

Officer Meltdown During Open Carry I.D. Refusal in WV | What Happened in Court

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On February 21, 2018, Putnam County Sheriff’s Office Deputy B.E. Donahoe responded to a complaint relayed from the emergency dispatch center that someone had reported that there was an individual walking down the side of a public road while in possession of a firearm.  The individual was the plaintiff, Michael Walker, who being a victim of epileptic seizures, does not have a driver’s license.  He was headed coyote hunting, and had a rifle strapped over his back, along with a backpack.  Deputy Donahoe brutally insulted Mr. Walker, who was being polite, but insisting that he had committed no crime, and therefore should not be stopped and forced to hand over his ID. Donahoe repeatedly called him a “c_cksucker” while forcibly detaining him and running a criminal background check on him and questioning him as to why he would need an AR-15. The incident was fully captured on video by Mr. Walker.

At the time Deputy Donahoe responded to the scene, he possessed no prior knowledge of Mr. Walker.  All he knew about Mr. Walker is what he observed when he arrived at the scene, which was observing him walking down the side of the road.  He didn’t recall who had called 911, or specifically what the complainant had stated, other than that there was a guy walking down the side of the road with a firearm. Upon arriving at the scene, he observed Mr. Walker walking down the side of the road with a rifle “strapped across his back,” with the muzzle of the gun pointed towards the sky.

Upon arriving at the scene, Mr. Donahoe did not observe Walker committing any criminal activity. Nor was he informed by any other source that any crime had been committed by any individual. Walker was just walking. Donahoe had no indication that Mr. Walker was a person prohibited from possessing a firearm. Donahoe testified that he did not observe Mr. Walker doing anything unsafe with the rifle strapped on his back; nor did he observe the rifle in Mr. Walker’s hands; nor did he observe Mr. Walker acting threatening in any way.  His only reason for stopping Mr. Walker was to find out if he was a prohibited person.

As portrayed by video footage taken by Mr. Walker with his phone, the interaction was not consensual. Donahoe gave Mr. Walker “no choice” in the matter. He told him during the stop that he was not free to leave until he was done with his investigation. Donahoe explained that the only investigation he was undertaking at the time, to which Mr. Walker was forced to submit, was to run Mr. Walker’s criminal history report, in order to determine whether he “was a person that could possess a firearm.” Admittedly, he had no information indicating that Mr. Walker may have been a prohibited person.

The case is over. We lost. Compare the video footage of the encounter with the legal aftermath, from the trial court level, through appeal to the Fourth Circuit, oral arguments, and ending with a deeply flawed published Fourth Circuit opinion. This case demonstrates what I refer to as a Bermuda Triangle of civil rights law….

Here we are following the hearing at the U.S. District Court in Huntington, West Virginia.

The U.S. District Court granted summary judgment for the officer, dismissing the lawsuit filed by Michael Walker. The order essentially created a carve-out for AR-15 style rifles from the usual reasonable suspicion analysis:

Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.

Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.

The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm. See Embody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).

The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. See Deffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).

Together, these facts would form a particularized and objective basis for an investigatory stop.

Here is the full District Court Order that was appealed to the Fourth Circuit:

This was our opening brief to the Fourth Circuit:

Listen to oral arguments from this case at the Fourth Circuit:

Here’s me actually arguing to the Fourth Circuit panel, via my computer, in the bizarro world that was 2021 America:

Here’s the Fourth Circuit Opinion that ensued:

Here is our petition for rehearing en banc, which was denied:

Tased and Arrested in Walmart – Lawsuit Filed

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You may have seen the video I posted back in January of 2021 showing my client being arrested in a West Virginia Walmart for bringing an uncased shotgun into the store. He brought the shotgun into the sporting goods section in order to determine if they had any slings that would fit. 911 calls ensued from store employees. What happened was captured on surveillance footage. Well, big update today. Here’s the Complaint:

W. Va. Code § 61-3B-2 provides that for conviction of trespass in a structure or conveyance, the potential sentence is only a fine of not more than $100.00. There is no possibility of incarceration under the statute. As the West Virginia Supreme Court observed in State ex rel. Forbes v. McGraw, 183 W.Va. 144, 394 S.E.2d 743 (W. Va. 1990), pretrial incarceration of a defendant for an alleged standalone violation of § 61-3B-2 would be improper because incarceration is not a potential penalty of the offense. § 61-3B-2 also expressly requires that the suspect refuse to leave the premises. Fortier never asked, or gave Plaintiff the opportunity, to leave the premises. 

Nor could Fortier have established that Plaintiff committed the crime of obstruction in violation of WV Code § 61-5-17(a), as at no time did Plaintiff fail to do exactly as ordered by any law enforcement officer. Lastly, I’ll just point out that open carry of firearms is perfectly legal in West Virginia, as we are a constitutional carry state. Mr. Lanham is not, and was not a person prohibited from being in possession of a firearm. Both handguns and longarms are legal to openly carry in West Virginia. Thus, the shotgun was carried in conformance with West Virginia law. That being said, a private property owner may prohibit firearms in their store. Assuming they do so, the violation of a store firearms prohibition policy is not a crime in West Virginia.

Here’s a recap of the footage and an update on the lawsuit:

As you can see in the video, at the time Plaintiff was tased, his hands were in the air, the shotgun was no longer in his possession, and he had walked to the wall, as directed by the defendant officers. He had fully complied with their directives and objectively gave the officers no indication that he posed a threat to anyone. No objectively reasonable police officer could have perceived the Plaintiff as posing an immediate threat to the safety of any individual. He was compliant and was not physically resisting. Here, Plaintiff had committed no crime, and while the officers had been called to the location by employees of Walmart, there was no indication that Plaintiff had committed any crime at all, much less a serious crime. There was no allegation that he was a physical threat to any individual. Plaintiff was not subsequent charged with, or alleged to have committed, any crime, other than trespassing. The trespassing charge was subsequently dismissed. 

Plaintiff offered absolutely no resistance, and was tased unnecessarily. The unreasonableness of tasing the Plaintiff is demonstrated by the fact that the Kanawha County Sheriff’s Office has no record of any employee ever having tased the Plaintiff on August 1, 2020. In response to a FOIA request seeking the identity of the officer who tased the Plaintiff, and any documentation pertaining to the incident, they responded that they had no records regarding the incident. 

Also corroborating the fact that tasering the Plaintiff was unnecessary, the criminal complaint written and signed by Defendant Fortier stated that, “A Deputy with the Kanawha County Sheriff’s Office encountered the [Plaintiff] first, and was able to detain him without incident.” The narrative mentioned nothing about the need for any use of force, nor the application of any use of force, including tasering, against the Plaintiff. Indeed, the narrative claimed that no incident occurred, much less a taser deployment. 

The third and final count of the lawsuit is also a Fourth Amendment violation, similar to the first count. However, whereas Count One was for the warrantless arrest of Mr. Lanham, Count Three focuses on the fact that Mr. Lanham was needlessly and maliciously prosecuted, even after his arrest. He ultimately obtained the dismissal of the criminal charge. That was inevitable. But they prosecuted him anyways, as if they felt some need to just go through the motions. 

During the processing of Plaintiff’s arrest, Defendant Fortier expressed to Plaintiff that even though it was legal for him to openly possess and carry firearms in West Virginia, that he needed to charge him with something just by virtue of the fact that they responded and the media began to report on it.  During the litigation of the criminal charge, Plaintiff retained counsel (me), who served a FOIA request on the City of Nitro, requesting the video footage of the incident, which they had obtained from Walmart. In response to the FOIA request, Defendant Fortier expressed to Plaintiff that since he went to a lawyer, he was no longer going to agree to the dismissal of the frivolous prosecution, which he had previously intended to do. 

Eventually, the charge was dismissed when the prosecuting attorney and municipal judge realized that Plaintiff could not have committed the charged offense. However, at the urging of Defendant Fortier, the dismissal of the frivolous prosecution was needlessly delayed, causing unnecessary additional damage to the Plaintiff. 

Here’s the original video posted last year:

SCOTUS Issues Landmark Second Amendment Opinion in NYSRPA v. Bruen

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Today, the Supreme Court of the United States held that the Second and Fourteenth Amendments protect the right to carry firearms in public. Ultimately, the Court held that: “New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” The ruling specifically challenged the law in New York, but will also apply to the eight other states that still maintain “may-issue” gun permitting laws, including California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island.

In 2008, the Supreme Court recognized the right to bear arms as an individual right in District of Columbia v. Heller. Two years after Heller, in McDonald v. City of Chicago, the court ruled that this right applied against the states, and not just Congress.

The Bruen litigation challenged concealed-carry restrictions under N.Y. Penal Law § 400.00(2)(f) that requires a showing of “proper cause” for the issuance of a carry permit. Lower courts upheld the New York law, but there were ample constitutional concerns over its vague standard, such as showing that you are “of good moral character.” New York wanted to exercise discretion in deciding who needs to carry guns in public, while gun owners rightfully argued that the law flips the constitutional presumption onto gun owners, rather than the government.

The 6-3 majority opinion, authored by Justice Clarence Thomas and joined by Justices Alito, Gorsuch, Kavanaugh, Barrett, and Chief Justice Roberts, rejected the “two-step” approach often employed by lower courts since the McDonald v. Chicago in 2010, saying that the Constitution “demands a test rooted in the Second Amendment’s text, as informed by history.”

The Court expressly held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Quoting the McDonald plurality opinion, the Court held that: “The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” 

The Court said that: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.” 

Prior to today, the SCOTUS had only established a right to have a handgun in one’s home under the Second Amendment. Now, as was hoped for, and widely expected, the Court has now recognized that the right to “bear” arms includes the right to do so outside the home. States such as New York obviously still have numerous gun laws in place which restrict and affect this right. Going forward, Justice Thomas’s opinion means that courts should uphold gun restrictions only if there is a tradition of such regulation in U.S. history.

Thomas correctly notes that in 1791, there was no broad prohibition on the public carry of firearms, with their exclusion only being limited to certain “sensitive places.” Some of the more low-information politicians and commentators out there today argue that only muskets were available in 1791, and that therefore we should now be limited to muskets. Setting aside the obvious flaws in their logic, which would likewise render the First Amendment inapplicable to modern forms of communication and technology, the story of America is interwoven with the invention, use, and perfection of, the American Longrifle. Which by its very definition is not a musket, and which was used respectively in war, acts of self defense, as well as for other uses such as recreation and hunting. One could also point out that cannons were indeed available in 1791, including ships full of them, lawfully available for private ownership and operation.

In response to the opinion, New York Governor Kathy Hochul expressed that she believed the opinion to be “absolutely shocking that they have taken away our right to have reasonable restrictions.” We can see where this is headed in blue states such as New York. What happens when state and local governments refuse to enforce federal constitutional law, such as the Bruen decision? The remedy available to citizens is to sue under 42 U.S.C. Section 1983 (i.e., a federal civil rights lawsuit).

But no so fast, since this is where qualified immunity comes in. There’s usually a lag period in between a change in the law and the time in which the federal courts will hold governmental officials (police officers) liable under Section 1983 for civil rights violations. The excuse is generally that police officers can’t be expected to know of every change in the law as it occurs and should be given what is essentially a grace period. Will that happen here if lawsuits are necessary (which I guarantee they will be), and if so, how long will that grace period last? We shall see…. It doesn’t help that federal law enforcement is already announcing their “respectful” disagreement with the opinion.

The U.S. Department of Justice issued a press release today:

“We respectfully disagree with the Court’s conclusion that the Second Amendment forbids New York’s reasonable requirement that individuals seeking to carry a concealed handgun must show that they need to do so for self-defense. The Department of Justice remains committed to saving innocent lives by enforcing and defending federal firearms laws, partnering with state, local and tribal authorities and using all legally available tools to tackle the epidemic of gun violence plaguing our communities.”

https://www.justice.gov/opa/pr/justice-department-statement-supreme-court-ruling-new-york-state-rifle-pistol-association-inc

Wait, how does separation of powers work? Also, which Article or Amendment to the Constitution creates and governs the DOJ? I suppose the Framers should have provided an option for an agency of the executive branch to “respectfully disagree” with a “conclusion” of the Supreme Court.

Qualified immunity will not be a defense to cities and county governments who adopt policies and practices that violate federal constitutional rights, now including the Second Amendment as defined by Bruen. This is because political subdivisions cannot assert qualified immunity, as per the U.S. Supreme Court, who created qualified immunity out of thin air in the first place. State governments, on the other hand, have no need to assert federal qualified immunity, because they cannot be sued for money damages in federal courts.

Here is the full opinion in NYSRPA v. Bruen:

Federal civil rights lawsuit filed against Mercer County Deputies for excessive force during “domestic disturbance” call

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Today we filed a federal Section 1983 civil rights lawsuit alleging multiple counts of civil rights violations related to allegations of excessive force which occurred during a “domestic disturbance” call involving my client, Melvin Sargent. Following a non-violent argument with his wife, deputies from the Mercer County Sheriff’s Department arrived at his home.

Due to the fact that he was open-carrying a pistol in a retention holster, as he usually did, and as he was legally entitled to do, Mr. Sargent went out of his way to raise his hands in the air and allow the officers to disarm him, following their arrival. However, as the complaint alleges, after being disarmed, he was punched in the face with a closed fist, and subjected to violence from there. His hand was boot-stomped, which resulted in a fractured hand.

After handcuffs were applied behind his back and placed in the rear of the police cruiser, his hand began to swell and cause severe pain. When he complained about the pain, the deputy violently pushed him and began punching him again. He then sprays pepper spray in his eyes for 3 to 5 seconds, and then shuts him inside the police cruiser. Afterwards the deputy walks over to Mr. Sargent’s significant other, who was filming video, where you can see his black armored knuckle gloves, covered with my client’s blood.

Here’s the filed complaint:

Petition for Rehearing En Banc Filed in the Walker Case

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Here’s the Petition for Rehearing and Petition for Rehearing En Banc we filed yesterday in the Walker AR-15 open carry case, which will give effectively stay the case while the other judges on the Fourth Circuit have an opportunity to review our petition and consider whether to get involved.

If the Panel Opinion remains, Black is meaningless, because there will always be “more” available to any police officer. Even if an individual has violated no law, they will be subject to detainment based on any speculative crime which generally could be committed by any anonymous person. A man walking in the direction of any woman might be a rapist, given that he would appear to have the physical ability to carry out a rape. Any driver of a car heading in the direction of any other human being might be a potential murderer, because they appear to have the physical ability to run-over people, should they so choose. The analogies could go on and on because, like the Michael Walker case, these scenarios are all generalized, rather than based on individualized reasonable suspicion. 

Deputy Donahoe did, and claims to have done numerous other times, exactly that which Black forbade: to assume that being a felon in possession of a firearm was the default status; that, without more, he could detain and ID anyone he saw with a firearm. He admitted that he had no information that Walker may have been a prohibited person. (J.A. 162:5-8). Donahoe admitted under oath that had no indications that Mr. Walker was a threat to anyone, nor appeared to have any ill intentions (J.A. 167:1-4). Donahoe told Mr. Walker at the beginning of the stop, “At this point, I have the absolute right to see whether you’re legal to carry that gun or not.” (See J.A. 209 – Video of Incident). 

The District Court acknowledged that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” Black, 707 F.3d at 540 (J.A. 326). There was no “more.” Walker had committed no crime. He wasn’t observed committing a crime. Not a single person alleged that a crime was committed by Michael Walker. To allow a police officer’s subjective fear of AR-15s, or of theoretical copycat crimes, to be utilized as “more,” effectively swallows the rule. This opens the door to racial profiling, and so on. To allow the Panel Opinion to stand is to unravel Black, and important civil rights protections.

The 4th Circuit Holds that 18-20 year-olds have Second Amendment Rights

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On the heels of the Fourth Circuit’s awful anti-gun opinion in the Walker case, comes an opinion today which holds that 18-20 year olds have a constitutional right to keep and bear arms under the Second Amendment. Federal law prohibits the sale of handguns and handgun ammunition to 18-20 year olds by licensed dealers. In an opinion written by Judge Richardson (appointed by Trump), the Court held that “Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged laws impermissibly burden those rights.”

There are many things that minors and even those under 21 cannot do. See Ent. Merchs. Ass’n, 564 U.S. at 836–37 (Thomas, J., dissenting) (explaining that minors cannot drive for hire or drive a school bus, buy tobacco, play bingo for money, or execute a will). But none of those restrictions implicate constitutional rights, so states have great leeway to regulate those activities under their general police powers. And while the Court has “recognized that the State has somewhat broader authority to regulate the activities of children than of adults,” that does not mean that children necessarily have different rights than adults. Danforth, 428 U.S. at 74. Often they have the same rights as adults, but the states’ interests are stronger with regard to minors so restrictions may more easily pass constitutional scrutiny. Ent. Merchs. Ass’n, 564 U.S. at 794–95. So it is hard to conclude that 18- to 20-year-olds have no Second Amendment rights when almost every other constitutional right affords them protection. This conclusion becomes inescapable when we consider the history.

This is the Fourth Circuit, so WV, VA, MD, NC and SC. The government could still petition for rehearing en banc, as well as petition for certiorari to the US Supreme Court. So it’s not over yet….

Fourth Circuit Issues Anti-AR15 Diatribe in the Walker Case

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Congratulations to West Virginia’s first Second Amendment “Sanctuary,” Putnam County, in obtaining a new anti-gun diatribe of a published opinion from the Fourth Circuit. This morning, the Fourth Circuit issued a published opinion in the Walker case. Basically, the Second Amendment doesn’t apply to the AR-15, and it matters not that the WV legislature allows its citizens to possess and use AR-15s, because the judiciary decides what peasants may possess – not the state legislature.

I knew it was going to be bad, since at the oral arguments one of the judges likened the AR-15 to the M-16. And he ended up authoring the opinion. You can listen to the oral arguments here, if you missed them.

Join me live at 7pm for a discussion on the ruling:

Gun Rights Discussion with Luis Valdes of Gun Owners of America

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Just today the WV Governor signed a bill making WV a Second Amendment sanctuary of sorts from the federal government. There’s a lot of things going on in the world of federal gun control efforts at the moment. The GOA – Gun Owners of America is neck deep in fighting back against it. With me tonight is Luis Valdes, the Florida Director of the GOA, a well known Second Amendment advocate to discuss what’s going on.

Join me live at 6:30 p.m. ET.

ATF Loses Bumpstock Case Today at the 6th Circuit

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Today, the U.S. Court of Appeals for the Sixth Circuit reversed the district court’s decision, which had denied GOA’s motion for a preliminary injunction on bump stocks. Gun Owners of America is seeking an injunction to prevent ATF from implementing a final rule incorrectly classifying bump stocks as machineguns under federal law.

This case was brought by Gun Owners of America (GOA), Gun Owners Foundation (GOF), the Virginia Citizens Defense League (VCDL), Matt Watkins, Tim Harmsen of the Military Arms Channel, and GOA’s Texas Director, Rachel Malone.

“Today’s court decision is great news and told gun owners what they already knew,” said GOA Senior Vice President Erich Pratt. “We are glad the court applied the statute accurately, and struck down the ATF’s illegal overreach and infringement of gun owners’ rights.”

https://www.gunowners.org/victory-court-rules-a-bump-stock-is-not-a-machine-gun/

This was never about “bumpstocks,” but rather this was about fighting against the tyranny of the executive branch, e.g., the ATF, in enacting legislation outside the legislative process in Congress. This is about any and all firearms and firearms accessories, and preventing bureaucrats from picking and choosing what they decide is legal vs. illegal.

Here’s the opinion:

The GOA (Gun Owners of America) continues to do great work, fighting tyranny in the courts. The fight continues, so please donate to the battle:

Donate to GOA’s Bump Stock Litigation Fund!

One of my favorite parts of the opinion. Boy does this sound familiar:

First, giving one branch the power to both draft and enforce criminal statutes jeopardizes the people’s right to liberty. The concern over the potential abuse of power if the executive can define crimes predates our nation’s founding. See THE FEDERALIST NO. 47, at 251 (James Madison) (quoting Baron de Montesquieu that “[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates”); 1 WILLIAM BLACKSTONE, COMMENTARIES *146 (1753) (“In all tyrannical governments, the supreme magistracy, or the right of both making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty.”); JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT § 143, pp. 324-25 (T. Hollis ed., 1764) (1690).

NOTE: this doesn’t change the legal status of those states who’s legislatures banned bumpstocks: Delaware, Rhode Island, Washington, Nevada, California, Maryland, NJ, NY, Florida, Hawaii, Massachusetts, and Vermont, I believe…… It also doesn’t say Congress can’t do so federally. This is just about the ATF doing it on their own.