A jury should decide if a State Police trooper and a Tyler County sheriff's deputy wrongly arrested a man and used excessive force against him, the West Virginia Supreme Court ruled this week.
In an opinion filed Tuesday, justices upheld a decision last year by Circuit Judge David Hummel that denied a request by the two officers to throw out a lawsuit against them.
Sheriff's Deputy Joshua Maston and State Police Cpl. Shaun Curran had argued that the doctrine of qualified immunity protected them.
"Our reading of the record suggests many factual anomalies that support the circuit court's decision to deny summary judgment on the qualified immunity question," Justice Menis Ketchum wrote for the court. "We see numerous factual conflicts in the evidence not only between the plaintiff's witnesses and the defendants' witnesses, but also between the evidence proffered by the two defendant officers and between each officer's own contemporaneous written reports and his subsequent deposition testimony."
The test for evaluating if a public official is entitled to qualified immunity, in the absence of fraudulent, malicious or intentional wrongdoing, depends on whether a public official, acting from the perspective of the defendant, would reasonably believe that his or her conduct violated clear statutory or constitutional rights, the opinion states.
Shortly after midnight on April 11, 2009, Thomas Jefferson Wagner - described in the opinion as a 50-year-old, heavy-set, balding boilermaker - walked out of Big C's Lounge on Main Street in Middlebourne. Both Wagner and a bartender said Wagner drank two or three beers in the two or three hours he was at the bar, the opinion states. Both also said it was raining that night.
As Wagner was walking home - the bar was about 70 yards from his apartment - he saw a State Police cruiser with two officers inside watching him. He said he asked the officers "if everything was OK," Ketchum wrote. When he didn't receive a response, he asked again. He says he saw the cruiser's window roll halfway down but didn't hear a response.
Wagner then said it began to rain harder, so he pulled the hood of his sweatshirt over his head and "hustled down the street" home, according to the opinion. After turning down a gravel driveway, he felt someone "crashing" into his back while grabbing his right arm and slamming his face into the spindles of a porch railing.
Maston allegedly pushed and grabbed Wagner while Curran helped handcuff him. One of the tenants in Wagner's building, Lillian Burch Leeson, walked onto her porch and testified she saw Wagner pressed up against the porch by the officers. She said she heard Wagner ask officers why they were hurting him, and he told them he lived in the apartment building and was going home, the opinion states. Wagner says he told police he was running to try to get out of the rain.
After his arrest, Wagner told police he thought his arm was broken and asked to be taken to a hospital. The officers said when Wagner had alcohol on his breath and that his speech was slurred and his eyes red and glassy. The opinion states that while at the hospital, blood was wiped from Wagner's face, he was injected with pain medication and given an arm sling. He spent the rest of the night in a regional jail, the opinion states, and appeared before a magistrate the next morning. (According to the opinion, medical tests showed a tendon and ligament in Wagner's right elbow were completely torn.)
Maston, the sheriff's deputy, charged Wagner with fleeing on foot and public intoxication. In addition to those charges, Curran charged Wagner with disturbing the peace, obstructing and resisting an officer and refusing to take a breath test to determine the amount of alcohol in his system.
A prosecutor dismissed all of those charges on Sept. 22, 2010, according to the opinion. The charges were dismissed with prejudice, meaning they can't be refiled. Six months later, Wagner sued the two officers.
In Tuesday's opinion, justices pointed to several inconsistencies between Maston's and Curran's accounts of the incident. For example, the opinion states, Curran's written report described Wagner as "walking" from the bar, and his criminal complaint stated Walker was "traveling on foot ... along the sidewalk," while Maston wrote in his report that Wagner was "staggering."
The officers knew Wagner, as his sister worked as a magistrate's assistant in Tyler County and his brother owned a local medical supply business, according to the ruling. Maston knew him better and "never knew him to be violent or a danger to others," the opinion states.
The officers testified they saw Wagner say something to them, but that they couldn't hear him because the car's window was rolled up. Curran rolled down the window, according to the opinion.
Maston wrote, according to the ruling, that Wagner "yelled if we need anything," but Curran testified he heard Wagner "shouting profanities and acting in a manner to provoke an altercation." Both officers said they still had no intention of stopping or arresting Wagner.
Both officers said, the opinion states, that Curran yelled to tell Wagner to go home. He had to yell in order for Wagner to hear him, both officers agreed. The officers testified Wagner yelled something back and threw his arms up in the air.
Curran says he heard Wagner use obscenities and testified that he immediately told Maston that he heard Wagner using obscenities, but Maston testified Curran never told him anything about hearing obscenities until several days later, according to the opinion
Curran says he told Wagner to "stay right there," but still didn't plan to stop or arrest Wagner, the ruling states. Wagner, though, the officers testified "began to jog or run" down the sidewalk. That's when officers decided to stop him, the opinion states.
Maston testified because, "Whenever somebody starts running from you after we tell them to stay there, then something's not right," according to the opinion. Curran testified he decided to arrest Wagner "when he started to run" because "innocent people don't run."
The trooper didn't activate his lights or siren, which would have triggered an in-car audio and video recording system. He also didn't manually activate any recording system, the opinion states.
"As we have previously discussed, the record details numerous significant questions of material fact concerning whether the officers violated clearly established constitutional rights," Ketchum wrote. "Further, the record also suggests that the deliberate or reckless policies and actions of both the State Police and the Tyler County Sheriff's Department may have caused or contributed to the violations of these established rights."
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.