WV Deputy Arrested & Indicted by Feds – County Refused My FOIA for Body Cam

A West Virginia Deputy has been indicted by the feds. It just hit the news a few days ago. I figured there must be body cam footage of the incident, so I sent a FOIA request to the employer. I was holding off on discussing the case until I saw the footage. I’ve now received a response, and you’re not going to like it. Here’s what we know right now. Monongalia County Sheriff’s Office Deputy Lance Kuretza has been indicted in federal court for a felony civil rights violation after allegedly punching and pepper spraying a handcuffed suspect, as well as for attempting to cover-it-up by filing a false police report. 

The DOJ issued a press release. I went ahead and pulled the unsealed indictment off pacer. Unfortunately it doesn’t contain much in the way of details. I rightfully assumed there must be body cam footage. That has now been confirmed by the U.S. Attorney for the Northern District of West Virginia, who gave a media interview explaining that there was indeed body cam footage of this incident, and that it was key to their decision to indict the defendant officer. He gave some additional details that weren’t in the indictment:

“Once we saw the evidence and interviewed the witnesses we knew this case had to be charged.”

He also noted that the Monongalia County Prosecutor’s Office decided not to pursue state charges.

So, that means the body cam footage must be good – or rather, bad. In fact, he said, “The video really speaks for itself, there’s a lot of it and that’s why body cams are so important…” And if that’s the case, why did the state-level county prosecutor not file charges? That’s a rhetorical question, of course. As you’ll see, the county is now attempting to stop me from sharing this body cam footage with the public. They can give it to the feds, but not the citizens they represent.

As soon as I heard about the initial indictment, and saw the DOJ press release, I sent a FOIA request to the sheriff’s department. As of this morning, they responded, denying my request on the grounds that there’s a federal prosecution taking place. The problem is however, I didn’t FOIA the feds, but rather the county, who has decided not to prosecute. There’s an exception in our state FOIA statute where there’s still an open criminal investigation. But they don’t have one. 

What’s happening here is that the county – Monongalia County Sheriff’s Office – is attempting to prevent the public from seeing the video, even though the U.S. Attorney prosecuting the federal indictment just discussed it on the radio. Here’s more of what he said:

Deputy Kuretza and six others responded to a disturbance at the Residence Inn Jan. 20, 2018. An investigation at the scene determined none of the suspects broke laws or would be arrested, but management asked they be escorted from the property. 

As the group exited the floor, Kuretza ordered one of the guests to open the door to a nearby room where he found a man sleeping. Kuretza then allegedly began to shake the man and hit his feet to wake him up. When the guest explained he was sleeping, Kuretza threw him off the bed and beat him, investigators said. As the contact escalated, Kuretza restrained the guest as the six other officers were in the room.

“This particular victim had a flashlight in his face and thought it was his friends just messing around with him,” Ihlenfeld said. “It turned out it was a sheriff’s deputy and from there it really got out of control.”

Kuretza battered and used pepper spray on the victim while handcuffed. While the suspect was being taken out of the property Kuretza allegedly continued to use unnecessary force.

“The report that was filed after this did not indicate the pepper spray had been deployed after handcuffs were used, in fact it said pepper spray was deployed before handcuffs were used – which was not consistent with the video evidence we have.”

So I already responded to their denial of my FOIA request and am threatening to sue them for illegally denying my request. The public has a right to see this footage. The sheriff’s department can’t just suppress footage owned by the public. I will get the footage, and now I really want to see it. I pulled the actual indictment and I’ll post it up on the blog if you want to see it. Here’s what it charges: 

The indictment contains two counts. The first is deprivation of rights under color of law. This alleges that Lance Kuretza, a Deputy Sheriff with the Monongalia County Sheriff’s Office, while acting under color of law, deprived the victim of his Fourth Amendment rights by engaging in an unreasonable, i.e., excessive, i.e., unnecessary and unjustified, use of force. Specifically, he punched the victim in the face, striking him, spraying him with pepper spray at a time after the victim had been handcuffed. It’s also alleged that he kneed the victim while escorting him. The indictment specifically alleges that this offense included the use of a dangerous weapon and resulted in bodily injury to the victim. Why was that last part alleged? As we’ve discussed before in these glorious cases, where those elements are present, the charge of deprivations under color of law transforms from a misdemeanor to a felony. 

Count two alleges that, the following day, on January 21, 2018, Deputy Kuretza knowingly falsified and made a false entry in a record and document with the intent to impede, obstruct, and influence an investigation into his actions. Specifically, it alleges that Kuretza made false entries into a use of force report by falsely stating that he sprayed the victim with pepper spray before the victim was handcuffed, as well as by omitting that he sprayed the victim with pepper spray after the victim was handcuffed, and also omitting that he struck the victim after he was handcuffed.

If convicted, Kuretza faces up to 10 years in prison for the civil rights violation and up to 20 years in prison for falsifying the report.

There’s quite a bit of case law placing police officers on notice that it’s unreasonable excessive force to use tasers and pepper spray on handcuffed arrestees. The Fourth Amendment bars police officers from using excessive force to effectuate a seizure. Courts evaluate a claim of excessive force based on an “objective reasonableness” standard, taking into account “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. These are known as the Graham Factors. The Courts also look at the circumstances as of the moment force was deployed, with an eye toward the proportionality of the force in light of all the circumstances.

There’s already binding legal precedent in the Fourth Circuit, which is where West Virginia is located, that pepper spraying suspects in response to minimal, non-violent resistance is a Fourth Amendment violation. See Park v. Shiflett (4th Circ. 2001). There’s quite a bit of case law denying correctional officers qualified immunity for using pepper spray unnecessarily, for the purpose of causing pain, or for retaliation, as well as for using it excessively. 

There’s a big difference between pepper spraying an arrestee who is handcuffed and one who is not handcuffed. There’s also a difference between the use of pepper spray in a jail or prison context, and use against non-incarcerated individuals, where it’s much more likely to be considered excessive force by the Courts. Unfortunately, I can’t show you the body cam footage. But we now have confirmation that it exists. I may have to sue for it. But I’ll get it one way or the other. I’ll post the documents I have so far up on the blog at thecivilrightslawyer.com. I look forward to following this one and seeing what happens. 

Police Officers Indicted for Death of Breonna Taylor

The U.S. DOJ announced in a press release today that police officers involved in the Kentucky shooting death of Breonna Taylor have been charged with federal felony civil rights violations. A federal grand jury in Louisville, Kentucky, returned two indictments that were unsealed today, and the Department of Justice filed a third charging document today, in connection with an investigation into the circumstances surrounding the death of Breonna Taylor, a 26-year-old woman who was shot and killed in her Louisville home on March 13, 2020, by police officers executing a search warrant.

“The Justice Department has charged four current and former Louisville Metro Police Department officers with federal crimes related to Breonna Taylor’s death,” said Attorney General Merrick B. Garland. “Among other things, the federal charges announced today allege that members of LMPD’s Place-Based Investigations Unit falsified the affidavit used to obtain the search warrant of Ms. Taylor’s home, that this act violated federal civil rights laws, and that those violations resulted in Ms. Taylor’s death.

“On March 13, 2020, Breonna Taylor should have awakened in her home as usual, but tragically she did not,” said Assistant Attorney General Kristen Clarke. “Since the founding of our nation, the Bill of Rights to the United States Constitution has guaranteed that all people have a right to be secure in their homes, free from false warrants, unreasonable searches and the use of unjustifiable and excessive force by the police. 

The first indictment charges former Louisville Metro Police Department (LMPD) Detective Joshua Jaynes, 40, and current LMPD Sergeant Kyle Meany, 35, with federal civil rights and obstruction offenses for their roles in preparing and approving a false search warrant affidavit that resulted in Taylor’s death. The second indictment charges former LMPD Detective Brett Hankison, 46, with civil rights offenses for firing his service weapon into Taylor’s apartment through a covered window and covered glass door. The third charging document — an information filed by the Department of Justice — charges LMPD Detective Kelly Goodlett with conspiring with Jaynes to falsify the search warrant for Taylor’s home and to cover up their actions afterward.

The first indictment — charging Jaynes and Meany in connection with the allegedly false warrant — contains four counts. Count One charges that Jaynes and Meany, while acting in their official capacities as officers, willfully deprived Taylor of her constitutional rights by drafting and approving a false affidavit to obtain a search warrant for Taylor’s home. The indictment alleges that Jaynes and Meany knew that the affidavit contained false and misleading statements, omitted material facts, relied on stale information, and was not supported by probable cause.  The indictment also alleges that Jaynes and Meany knew that the execution of the search warrant would be carried out by armed LMPD officers, and could create a dangerous situation both for those officers and for anyone who happened to be in Taylor’s home. According to the charges, the officers tasked with executing the warrant were not involved in drafting the warrant affidavit and were not aware that it was false. This count alleges that the offense resulted in Taylor’s death.

Count Two charges Jaynes with conspiracy, for agreeing with another detective to cover up the false warrant affidavit after Taylor’s death by drafting a false investigative letter and making false statements to criminal investigators. Count Three charges Jaynes with falsifying a report with the intent to impede a criminal investigation into Taylor’s death. Count Four charges Meany with making a false statement to federal investigators. 

The second indictment —against Hankison — includes two civil rights charges alleging that Hankison willfully used unconstitutionally excessive force, while acting in his official capacity as an officer, when he fired his service weapon into Taylor’s apartment through a covered window and covered glass door. Count One charges him with depriving Taylor and a person staying with Taylor in her apartment of their constitutional rights by firing shots through a bedroom window that was covered with blinds and a blackout curtain. Count Two charges Hankison with depriving three of Taylor’s neighbors of their constitutional rights by firing shots through a sliding glass door that was covered with blinds and a curtain; the indictment alleges that several of Hankison’s bullets traveled through the wall of Taylor’s home and into the apartment unit occupied by her neighbors. Both counts allege that Hankison used a dangerous weapon, and that his conduct involved an attempt to kill.

The information charging Goodlett with conspiracy contains one count. It charges Goodlett with conspiring with Jaynes to falsify the warrant affidavit for Taylor’s home, and file a false report to cover up the false affidavit.

All of the civil rights charges involve alleged violations of Title 18, United States Code, Section 242, which makes it a crime for an official acting under color of law — meaning an official who is using or abusing authority given to that person by the government — to willfully violate a person’s constitutional rights. A violation of this statute carries a statutory maximum sentence of life imprisonment where the violation results in death or involves an attempt to kill.  The obstruction counts charged in the indictments carry a statutory maximum sentence of 20 years; and the conspiracy counts carry a statutory maximum sentence of five years, as does the false-statements charge. 

The charges announced today are separate from the Justice Department’s Civil Rights Division’s pattern or practice investigation into Louisville Metro Government and the Louisville Metro Police Department, which Attorney General Garland announced on April 26, 2021. The charges announced today are criminal against individual officers, while the ongoing pattern or practice investigation is a civil investigation that is examining allegations of systemic violations of the Constitution and federal law by LMPD and Louisville Metro. The civil pattern or practice investigation is being handled independently from the criminal case by a different team of career staff.