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:
Operate on any single lane road (most roadways in rural West Virginia).
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.)
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.
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.”
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.
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:
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.
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.
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.
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?
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.
(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).
Yesterday we filed a Petition for Rehearing En Banc with the U.S. Court of Appeals for the Fourth Circuit in the Orem case. On May 11, 2020, the Fourth Circuit handed down a panel decision in the Orem v. Gillmore, et al., Section 1983 civil rights lawsuit, arising out of Berkeley County, West Virginia.
Here’s the background post on the initial filing of the lawsuit, in April of 2018. This is the case that made national headlines when a Republican nominee for Sheriff was arrested for allegedly overdosing in his home. He was arrested by a state trooper, who showed up at the scene of the medical emergency, and performed a warrantless search of a bathroom in the house. The trooper’s longtime secretary was the married to one of the candidate’s political opponents. During the arrest booking, a photograph was taken of the client while handcuffed inside a secure area of the state police detachment. It was uploaded to social media as a meme, and quickly went viral. Of course, the state police investigated themselves, and strangely were unable to find the culprit.
The damage was done, as far as the election is concerned. The prosecuting attorney determined that the arrest resulted from an illegal search of the bathroom, and evidently the court agreed. The criminal charges were dismissed. We filed a civil lawsuit in federal court. Unfortunately however, the Court granted the trooper qualified immunity on the search, and claimed that we missed the statute of limitations on the false arrest count. I argued up and down that the judge and the opposing lawyer were confused, and that false arrest has a 2 year SOL – not 1 year, as they claimed. Well, I was right. The Fourth Circuit overturned the ruling on the statute of limitations, holding that I was right about it being 2 years. But then they granted qualified immunity anyways.
Here’s the opinion, if you want to read it. Unfortunately, the opinion was pretty sparse – granting the defendant police officer qualified immunity, with pretty much no explanation whatsoever. They just said, it was “beyond debate.”
The expansion of qualified immunity to police officers who violate the most central tenant of the Fourth Amendment – a warrantless search of a home – is concerning. Qualified immunity is supposed to apply to the gray areas, where we can’t expect police officers to understand all the nuances and constant changes in case law. But the warrant requirement for searching a man’s home? The U.S. Supreme Court has long held that a police officer cannot be entitled to qualified immunity for the warrantless search of a home. Hopefully we get a rehearing on this and a new opinion, or else we very well may end up there.
Being filed today: I’m representing S. Marshall Wilson, of the West Virginia House of Delegates, three other delegates, and one West Virginia Senator, in their challenge to the West Virginia Governor’s COVID-19 executive orders. Here’s the petition being filed. Press conference at the State Capitol, today at 11:00 a.m.
Update: some footage from the press conference at the State Capitol:
As a constitutional lawyer, I’m a failure if my adherence to the Constitution changes according to politics. Should it be any different for politicians, who take the same oath to defend the Constitution of the United States? Should principles change according to whom they are being applied to? Of course not. Here are some facts:
During President Obama’s presidency, there were 10 TIMES more covert drone strikes than under Bush.
So this wasn’t even counting strikes in Afghanistan. This was drone killings in sovereign countries, with whom we were not at war; and nor was there any congressional authorization or oversight of these drone killings. “Obama also began an air campaign targeting Yemen. His first strike was a catastrophe: commanders thought they were targeting al Qaeda but instead hit a tribe with cluster munitions, killing 55 people. Twenty-one were children – 10 of them under five. Twelve were women, five of them pregnant.” (Id.)
On March 19, 2011, Obama literally invaded the sovereign country of Libya, unilaterally approving airstrikes. There had been no congressional authorization. From a 2019 Politico piece looking back on the disaster:
“Obama said the military action sought to save the lives of peaceful, pro-democracy protesters who found themselves the target of a crackdown by Libyan dictator Moammar Gaddafi.”
“Speaking on March 28 at the National Defense University in Washington, Obama said: “The United States and the world faced a choice. Gadhafi declared he would show ‘no mercy’ to his own people. He compared them to rats and threatened to go door to door to inflict punishment. In the past, we have seen him hang civilians in the streets, and kill over a thousand people in a single day.”
“It was not in our national interest to let that [massacre] happen. I refused to let that happen.”
“But Kuperman, an associate professor at the LBJ School of Public Affairs at the University of Texas at Austin, held in his article that the NATO allies’ assessment turned out to be premature.”
“As he put it: “In retrospect, Obama’s intervention in Libya was an abject failure, judged even by its own standards. Libya has not only failed to evolve into a democracy; it has devolved into a failed state. Violent deaths and other human rights abuses have increased severalfold.”
“Rather than helping the United States combat terrorism, as Gadhafi did during his last decade in power, Libya [began to serve] as a safe haven for militias affiliated with both al-Qaida and the Islamic State of Iraq (ISIS). The Libya intervention has harmed other U.S. interests as well: undermining nuclear nonproliferation, chilling Russian cooperation at the U.N., and fueling Syria’s civil war.”
You may ask yourself, was Pelosi in Congress then? Yes she was. Was Manchin a U.S. Senator then? Yes he was. He’s been there since 2010. Shifty Schiff? Yep. So did they show the same concerns then, about actual airstrikes against a sovereign country for the purpose of regime change, and which led to a disastrous regime change? Let’s see…..
Congress actually did pass a resolution at that time, directing the President, pursuant to the War Powers Resolution, to remove all U.S. military armed forces from the country of Libya. There was a roll call vote on June 3, 2011. Any guesses on whether Nancy Pelosi voted for it? She voted “Nay,” meaning allowing U.S. forces to stay inside Libya with no congressional authorization, and for no real national security benefit to the U.S., since Obama said it was just to help innocent protesters (who turned out to be ISIS by the way – an innocent mistake on his behalf I’m sure).
Guess who else voted against the resolution? Shifty Schiff. In fact, most of the Democrats voted against it. Manchin couldn’t vote, because he was in the Senate, not the House, where the vote took place. Also, it failed in the House because the Democrats voted against it. Man they seem to have really become more concerned with the Constitution and the limitation of presidential war powers since then…. Coincidence, I’m sure.
So what was Joe Manchin’s opinion about the Libya disaster? In March of 2011, according to the Charleston Gazette, he was “concerned” but thought the President had legal authority to do it:
“Sen. Joe Manchin, D-W.Va., said Monday he was concerned about U.S. military operations in Libya.”We don’t have a good record of getting in and out,” Manchin said during a stop at the University of Charleston.Manchin did not, however, raise specific questions about the mission or President Barack Obama’s decision to begin operations there. The mission appears designed to protect the rebellion against Libyan leader Moammar Gadhafi.Manchin said even though Obama did not seek congressional approval to launch operations against Libya, he had been told the president had the authority to do so.”
I guess Congress is only really a necessary component if the POTUS is a Republican; a Democrat President has the legal authorization for not only one drone strike, but 563, and also to literally invade a country.
Did Manchin ever speak out against Obama, or criticize him for the 563 drone strikes in Pakistan, Somalia, and Yemen? Again 563. 563 drone strikes….. Not that I could find. To his credit, he did vote no for confirmation on the federal judgeship of the guy responsible for the memo authorizing Obama to drone strike a 16 year old American citizen, but other than that, crickets…..