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: