This is a video about an encounter at the home of my client, Matt, in March of 2019, which occurred in Charmco, West Virginia, which is in Greenbrier County. It shows police arriving at his home to arrest a friend who was visiting him, who happened to have an outstanding warrant.
Matt didn’t want to be involved one way or the other. He was afraid, so he turned on his phone and began recording and he laid down. He didn’t want to get shot. But they forced him to crawl to the door on his hands and knees. When he got there, he got head-stomped by the first officer.
They didn’t know he was recording. The second officer, a West Virginia State Police trooper, noticed the phone filming, and he covered it with his hands, and turned the phone off. The officers then deleted the video footage. But it was recovered.
Kamala Harris is now the VP candidate. You may have heard her bring up the topic of systematic inequality, or injustice. Look no further than her achievements as a career prosecutor, and many others like her across the nation, to find evidence that those things indeed exist. They really do.
Harris was a district attorney in San Fransisco from 2004 to 2011. She stood out there by being tough on crime in the form of prosecuting truant school children, sending letters to San Fransisco parents each year, threatening them with citations. She sponsored a 2010 law making it a misdemeanor crime for parents whose children miss 10 percent of a school year without an excuse the State deemed acceptable. She opposed efforts to reduce mandatory minimum prison sentences. She opposed the effort to legalize marijuana in California.
She served California Attorney General from 2011 to 2017, where at least 1,560 people were incarcerated for marijuana related offenses in those years. She fought against new DNA testing in order to determine whether death row inmate, Kevin Cooper, who many believed had been wrongfully convicted. If there’s any chance at all that he is actually innocent, what is the harm in checking the DNA? According to the New York Times, over 600 criminal cases had to be dismissed over a corrupt laboratory technician who had been accused of “intentionally sabotaging” results in criminal prosecutions. Harris and her prosecutors tried to withhold this evidence from defense lawyers – and got caught.
In 2014, she declined to take a position on a ballot initiative to reduce certain low-level felonies to misdemeanors and laughed at a reporter who asked if she would support the legalization of marijuana.
That case is not an outlier. Ms. Harris also fought to keep Daniel Larsen in prison on a 28-year-to-life sentence for possession of a concealed weapon even though his trial lawyer was incompetent and there was compelling evidence of his innocence. Relying on a technicality again, Ms. Harris argued that Mr. Larsen failed to raise his legal arguments in a timely fashion. (This time, she lost.)
She also defended Johnny Baca’s conviction for murder even though judges found a prosecutor presented false testimony at the trial. She relented only after a video of the oral argument received national attention and embarrassed her office. And then there’s Kevin Cooper, the death row inmate whose trial was infected by racism and corruption. He sought advanced DNA testing to prove his innocence, but Ms. Harris opposed it. (After The New York Times’s exposé of the case went viral, she reversed her position.)
In “The Truths We Hold,” Ms. Harris’srecently published memoir, she writes: “America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice.” She ironically claims in the book, “I know this history well — of innocent men framed, of charges brought against people without sufficient evidence, of prosecutors hiding information that would exonerate defendants, of the disproportionate application of the law.”
Indeed, I have also seen it first hand. The fact is that we have over-criminalized everything in this country. And who has it harmed the most? As I wrote about back in January, it didn’t start out this way. The Constitution was initially ratified in 1788. By 1790, we had only 30 federal crimes in existence, which consisted of the basics: treason, piracy, counterfeiting, murder, and so on. At that time, there was no concept in our law of the possession of an object being illegal in and of itself. That was imported from Sharia Law and Far-East authoritarian regimes, such as you see in the laws of Singapore.
The first modern drug law in the western world was in England in 1868. The first law against drug possession in the U.S. wasn’t until 1875, from San Francisco, where it was attempted to stop the Chinese immigrants from enjoying their “opium dens.” Politicians will be politicians, and now as of 2015, we now have over 5,000 federal crimes on the books – up quite a ways from the original 30 in the America as created by our founding fathers. In total, that’s 27,000 pages of descriptions of federal crimes in the U.S. code books. Although the U.S. consists of only about 5% of the world population, we incarcerate around 25% of the world’s prisoners. 40% of those are Black Americans. See The Overcriminalization of America, Charles G. Koch and Mark V. Holden, January 7, 2015.
Our laws in America derived from English common law. Courts today still turn to the old English common law to resolve some questions of law. It might surprise you to learn that the prosecution of crimes in our mother country was originally a private matter, rather than public. There was no real police force anywhere. Nor an army of prosecutors. The first real police force was created in 1829, and then that was only in London. The criminal justice system itself, was mostly privately operated and funded. So there was no such thing as a police force. And there was no such thing as career prosecutors, such as Kamala Harris.
Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial.
In some ways, their system for criminal prosecution was similar to our system of civil prosecution. Under both, it is the victim who ordinarily initiates and controls the process by which the offender is brought to justice. There is, however, at least one major difference between the two systems. If the victim of a tort succeeds in winning his case, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged, transported, or possibly pardoned. The damage payment in civil law provides the victim with an incentive to sue. There seems to be no corresponding incentive under the 18th century system of private criminal prosecution.
Possession crimes were used against Black Americans, throughout the Jim Crow era, by depriving them of the right to possess firearms.
The anxiety about gun control, i.e., the regulation of gun possession, arises from this tension, this uncertainty amongthose who once clearly identified themselves with the policers in their effort to control undesirables.
Privileged members of thepolitical community are appalled to find themselves treated bythe law, if not necessarily by its enforcers, as presumptively dangerous, and therefore as vagrants, felons, aliens, and “negroes.” Pointing to the Second Amendment, they challenge the state’s claim to original ownership of guns as dangerous instruments,with possession to be delegated to those deemed worthy. Men of “good moral character” balk at the requirement that they demonstrate their moral fitness to a state official.
They are, in short, experiencing the very sense of powerlessness so familiar to the traditional objects of police control. Now, they too are the outsiders who find themselves confronted with the arbitrary discretion of a superior power, the state. And this sense of alienation only grows when these state-defined sources of danger realize that state officials are exempt from the general prohibition of possession.
And again, if you want to look at systematic injustice and inequality, look no further than those individuals who have signed their names to the documents charging the people imprisoned across the county, as well as the arguments made in the courtroom to put them there. Somewhere along the way, we decided to over-criminalize America, to the point at which the Government tells us what plants, or even ideas, we can, or cannot possess. Regarding Harris’ statement in her book about the danger of prosecutors, the lady doth protest too much, methinks….
Check out this new case. Police officer impersonation incident by a WV Division of Corrections CO / Parole officer. We met with investigators already, who were extremely concerned about what they saw here….
This is the current state of open-carry law in West Virginia (in my opinion), and it’s tricky relationship with a police officer’s right to do a “Terry” frisk under certain instances, as of February of 2019. Note: government lawyers do, and will, disagree with my analysis. But mine’s supported by the law. However, proceed at your own risk, and the law may change after I write this, especially since litigation is ongoing….
1. If you’re in a vehicle, and an officer has a suspicion you may be armed, or sees that you’re open-carrying, you may be frisked and temporarily disarmed;
2. If you’re not in a vehicle subject to a traffic stop, a police officer must have some reasonable articulable suspicion that you are engaged in criminal activity in order to seize and disarm you. Open-carrying a firearm alone is not justifiable suspicion to perform an investigative detention, unless the officer has information that you are a prohibited person unable to possess a firearm.
Many of you have probably seen the recent lawsuit I’ve been involved with in the Michael Walker v. Putnam County case where we sued over the violation of Mr. Walker’s right to open carry a firearm in West Virginia.
The defense from the government so far is that they are allowed to perform what’s called a “Terry” stop and frisk when they see someone with a gun. Just to clarify the law, since they obviously misunderstood then, and continue to misunderstand.
A person’s Fourth Amendment rights under the U.S. Constitution to be free from unreasonable search and seizure are triggered whenever a “seizure” occurs.
When does a seizure occur?
A person is “seized” within the meaning of the Fourth Amendment if, “ ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (quotingUnited States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they “touched the defendant or made any attempt to physically block his departure or restrain his movement”; (v) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”; (vi) whether the officers informed the defendant that they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature”; and (vii) “whether, if the officer requested from the defendant … some form of official identification, the officer promptly returned it.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Gray, 883 F.2d at 322–23.
The Fourth Circuit has noted that though not dispositive, “the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis.” United States v. Black, 707 F.3d 531, 538 (2013) (citing Weaver, 282 F.3d at 310 (emphasis added)). In Black, the Court found that, “[i]t is clear that when Officer Zastrow expressly told Black he could not leave, Black was already seized for purposes of the Fourth Amendment.” Black at 538 (emphasis original).
When can a “seizure” be legal as a justified “Terry” Stop and Frisk under Terry v. Ohio?
Federal case law has long been clear that the police officers cannot perform a “Terry stop” of a person lawfully open-carrying a firearm for the purposes of checking his ID and running a background check to determine whether the person is a prohibited person, or to otherwise disarm him, without more.Although brief encounters between police and citizens require no objective justification, United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002), it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868 (1968).
To be lawful, a Terry stop “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752 (1980).The level of suspicion must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009).As such, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. 1868. Moreover, the Fourth Circuit has already made it very clear that in states where open carry is legal, such as West Virginia, if officers have no individualized information that a particular individual who is lawfully open-carrying is a prohibited person, the mere exercise of their rights by open-carrying “cannot justify an investigatory detention.”Indeed, the Court held that “Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 540 (2013) (quotingUnited States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).
Occupants of a vehicle subject to a lawful traffic stop are a different analysis altogether, and are more likely to be subject to a Terry seizure. An officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene. Robinson at 696 (2017 case) (citingPennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
The importance of the Black case to open-carry rights in our circuit:
In 2013, Judge Gregory of the U.S. Fourth Circuit Court of Appeals, whom I have had the honor of appearing in front of, issued an opinion in the case of United States v. Black, 707 F.3d 531, 540 (2013), which is central to the rights of West Virginians to open carry firearms. Although that case was from North Carolina, it applies equally here. In his opinion, he admonished law enforcement for regularly abusing the Terry Stop procedure to violate the rights of lawful gun owners:
At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir.2011); Massenburg, 654 F.3d 480;United States v. Digiovanni, 650 F.3d 498 (4th Cir.2011); and United States v. Foster, 634 F.3d 243 (4th Cir.2011). Although factors “susceptible of innocent explanation,” when taken together, may “form a particularized and objective basis” for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion.
Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See Powell, 666 F.3d at 188 (“[A] prior criminal record is not, standing alone, sufficient to create reasonable suspicion.” (citation omitted)). Moreover, we “ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the individualized suspicion requirement “have been upheld only in ‘certain limited circumstances,’ where the search is justified by ‘special needs’ ”—that is, concerns other than crime detection—and must be justified by balancing the individual’s privacy expectations against the government interests. Id. (quoting Chandler v. Miller, 520 U.S. 305, 308, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)); see Treasury Employees v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that suppress the normal requirement of individualized suspicion.
Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14– 415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded.
Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections.
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:
If there was no arrest warrant, you can just prove there was no probable cause;
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:
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.
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…..
Here is a copy of the petition recently filed with the South Carolina Supreme Court, in an attempt by the South Carolina Actual Innocence Project to reverse the murder conviction of James McClurkin. This will actually be the FIRST TIME an appellate court has ever examined the facts, or even been presented with the facts, surrounding James’ conviction.
If the petition is granted, and James’ conviction is reversed, it will re-set the statute of limitations on many of his civil claims. If not, the civil claims will face substantial hurdles. Let’s hope that for once, the criminal justice system in South Carolina does right by Mr. McClurkin.
People assume that people convicted of murder get a large amount of appeals, and have judges looking over their case to make sure everything was constitutional and fair . . . . Nope. This folder contains no actual direct appeal of James McClurkin’s murder conviction.
His lawyer who represented him during the 1977 trial which convicted him dropped the ball completely. He filed the notice of intent to appeal, but never actually followed through. Apparently he was waiting on payment from Mr. McClurkin’s family prior to filing the appeal. However, James’ father, who had hired him initially, passed away two weeks prior to the trial, and had spent all he had on James’ trial. The result was that Mr. McClurkin did not receive a direct appeal for his murder conviction. The State of South Carolina filed a motion to dismiss the notice of intent to appeal based on the failure to take any action beyond filing the notice. So the “appeal” was dismissed forever. What followed is paperwork which mostly discusses legal technicalities such as failure to comply with deadlines, and the discussion of rules which forbid inmates from bringing up old issues. It doesn’t appear that Mr. McClurkin ever had the assistance of a lawyer at all up until 1992, when the real murderer confessed. Every document James filed throughout his incarceration always mentioned first that James had exhausted his appeals. Well, he never got an appeal, and it is a fiction – a lie – that he exhausted his appeals.
The notoriously racist trial judge, Judge Moss, who in 1985 created “controversy” by using the “N word” from the bench (in response to black protestors following the conviction of a black man accused of shooting a white man – ironically similar to James’ conviction). Here is an article I tracked down from January 28, 1985, as it appeared in the South Carolina Herald-Journal.
This file contains almost no discussion of the evidence upon which James’ murder conviction stands. At one point, a lawyer for the South Carolina Appellate Public Defender’s Office filed a motion to withdraw from representing James due to the case being “without merit.” He didn’t bother to mention the evidence from the 1970’s, or the lack thereof. He didn’t even look into the 1992 confession and testimony of the real murderer. This was 2004. James would spend another 12 years in prison.
We are pleased to have been hired to represent a man named James McClurkin. James was convicted of murder in 1977. In late 2016, law enforcement appeared at his parole hearing and testified that the old murder case was reopened, and that James was innocent. James was released. He was 63 years old, and had been in South Carolina prisons since the age of 18.
South Carolina is one of the states which does not provide compensation to innocent people who are wrongfully imprisoned and then later exonerated. Hopefully that legislation can soon be enacted in South Carolina. But until that happens, we are working hard to compensate Mr. McClurkin for the terrible injustice which occurred in his case.
Here are some of the media accounts of his release from prison:
James McClurkin and his co-defendant were convicted of the 1973 murder of laundromat attendant Claude Killian. James, and his co-defendant Ray Charles Degraffenreid, both African Americans, were convicted under the brutal 1970’s Chester County, South Carolina justice system, which involved, among other things, a presiding trial judge who was known for using the “N word” while on the bench.
The real murderer actually confessed in 1992, which was corroborated by the fact that he was convicted of a similar murder, and by the fact that he had no alibi on the night of the murder. However, the justice system once again failed James, and he was sent back to prison for another 25 years. Now law enforcement reopened the case, and have concluded that the real murderer was telling the truth. How did this occur? Well, among other issues, the mother of the real murderer was apparently the maid of the prosecutor who prosecuted James and Ray Degraffenreid.
This sounds like a novel, but it’s not. It’s real, and it was only uncovered because a courageous new sheriff was willing to give someone the benefit of the doubt, and double check an old case. Follow along as we jump into this case and work to reverse the wheels of justice.
IF YOU LIVE IN SOUTH CAROLINA, PLEASE CONTACT YOUR POLITICIANS AND EXPRESS YOUR SUPPORT IN PLACING THESE CASES BEFORE THE GOVERNOR OF SOUTH CAROLINA. BOTH JAMES MCCLURKIN AND RAY CHARLES DEGRAFFENREID SHOULD BE PARDONED BY THE GOVERNOR OF SOUTH CAROLINA.
You can donate in order to assist with James McClurkin’s living expenses through the following site: