926 F.2d 353 (4th Cir. 1991), 90-1439, Rum Creek Coal Sales, Inc. v. Caperton

Docket Nº:90-1439.
Citation:926 F.2d 353
Party Name:RUM CREEK COAL SALES, INCORPORATED, Plaintiff-Appellant, v. Honorable W. Gaston CAPERTON; Colonel J.R. Buckalew; Captain A.W. (Gene) Bumgardner; Sergeant Glen A. Ables; Sergeant David L. Belcher; Sergeant B.R. Chafin; Sergeant P.D. Clemons; Corporal W.E. McGraw, II; Trooper C.E. Akers; Trooper K.W. Cordial; Trooper W.R. Gibson; Trooper C.P. Miller;
Case Date:February 25, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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926 F.2d 353 (4th Cir. 1991)



Honorable W. Gaston CAPERTON; Colonel J.R. Buckalew;

Captain A.W. (Gene) Bumgardner; Sergeant Glen A. Ables;

Sergeant David L. Belcher; Sergeant B.R. Chafin; Sergeant

P.D. Clemons; Corporal W.E. McGraw, II; Trooper C.E.

Akers; Trooper K.W. Cordial; Trooper W.R. Gibson; Trooper

C.P. Miller; Trooper J.B. Schoolcraft; Trooper B.A. Sloan;

Trooper Gary R. Tincher, and other officers of the West

Virginia State Police whose identity is presently unknown to

Plaintiff, Defendants-Appellees.

No. 90-1439.

United States Court of Appeals, Fourth Circuit

February 25, 1991

Argued Oct. 31, 1990.

As Amended May 6, 1991.

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Paul M. Thompson (argued), Gregory B. Robertson, James P. Naughton, Todd A. Leeson (on brief), Hunton & Williams, Richmond, Va., Forrest H. Roles, Mark A. Carter, Smith, Heenan & Althen, Charleston, W.Va., for plaintiff-appellant.

Jan L. Fox, Deputy Atty. Gen. (argued), Roger W. Tompkins, Atty. Gen., Bruce Ray Walker, Deputy Atty. Gen. (on brief), Charleston, W.Va., Teresa L. Sage, Asst. Atty. Gen., South Charleston, W.Va., for defendants-appellees.

Before MURNAGHAN and NIEMEYER, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.

MURNAGHAN, Circuit Judge:

In the late summer of 1989, Rum Creek Coal Sales (the "Company") became involved in a coal strike. The appeal before us does not focus on the conduct of strikers or the coal company; rather, we are asked to examine the actions of the West Virginia Police ("Police"). 1 As the coal strike progressed, the Company became convinced that the Police were failing to protect it because of the Police's construction of two West Virginia statutes. The Company sought a declaratory order that the two state statutes were unconstitutional and a permanent injunction preventing the Police from enforcing or, in effect, relying on the statutes. One statute prohibits the Police from aiding either party to a labor dispute through actions beyond those required to enforce the laws. The other statute, which normally establishes liability for criminal trespass, ceases to apply in a labor dispute. The Company sought a preliminary injunction. Although the district court judge found that, as a result of Police reliance on the statutes, the Company had suffered irreparable harm and that the Police's actions had been ineffective to prevent breach of the law, he denied the motion. The Company appeals the denial of the preliminary injunction. Under the standard established by Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977), we reverse the denial of the preliminary injunction and remand to permit the district court judge to reconsider the motion for a preliminary injunction in accordance with this opinion. As explained in detail below, we only consider whether the criminal trespass statute supports the granting of a preliminary injunction. We do not believe that sufficient evidence has

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been revealed in the record to permit us to reach a decision about the statute prohibiting extralegal aid, and thus we leave any such decision to the district court's discretion. Moreover, our analysis regarding the preliminary injunction does not, of course, foreclose subsequent arguments as the case develops over the merits of the underlying issues.

I. The West Virginia Statutes

Two statutes create the controversy. First, the "Neutrality Statute" states:

No officer or member of the department of public safety may, in any labor trouble or dispute between employer and employee, aid or assist either party thereto, but shall in such cases see that the statutes and laws of this State are enforced in a legal way and manner.

W.Va.Code Sec. 15-2-13. Second, the "Trespass Statute" ("Trespass on property other than structure or conveyance") makes a trespasser criminally liable for knowingly entering property without permission and contrary to notice, defying an order to leave, causing damage while trespassing, or being armed with a weapon and intending to cause bodily harm while trespassing. The penalties range from a fine of less than one hundred dollars to six months in prison. The last provision of the statute, however, contains a proviso:

(d) Notwithstanding and in addition to any other penalties provided by law, any person who performs or causes damage to property in the course of a willful trespass shall be liable to the property owner in the amount of twice the amount of such damage: Provided that the provisions of this article shall not apply in a labor dispute.

W.Va.Code Sec. 61-3B-3 (emphasis added).

A glance at history helps to explain the statutes. West Virginia long has been concerned about the interaction between the state police, employers, and striking employees. It has sought to redress the problem "whereby employers of labor would have certain of their watchmen or peace conservators commissioned as deputy sheriffs so as to give them the standing of public officials in the discharge of their duties to their employers." Ferrell v. State Compensation Comm., 114 W.Va. 555, 556, 172 S.E. 609, 610 (1934). Several other West Virginia statutes attempt to prohibit county law enforcement officials from using their official status to aid employers. See, e.g., W.Va.Code Secs. 6-3-1(b)(3), 6-3-1a(c), 6-14-15a. In 1919, contemporaneous with the creation of the Department of Public Safety (now called the "Police"), West Virginia enacted the Neutrality Statute. Apparently, the Neutrality Statute's provisions and other now-repealed laws limiting police contact with coal mine employers sought to reassure citizens that the Police would not become an armed agent of employers rather than the State.

The Trespass Statute, however, does not appear to have been intended to ensure the State's neutrality with respect to the employees and employers; rather, the statute appears to have been enacted to remove the State from areas arguably under federal control. The statute was enacted in 1978 after the Supreme Court decided several cases involving the First Amendment, picketing on private property, and the National Labor Relations Act ("NLRA"), in particular, 29 U.S.C. Sec. 158. See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). Several other states also amended their trespassing statutes; however, unlike West Virginia, their statutes specifically exclude only lawful activities. 2 Nothing in the Trespass Statute conditions

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the statute's exemption on the NLRA or on a finding that the activities are lawful.

In March 1989 when the Police anticipated a possible strike at another mine, Pittston Coal Mine, they promulgated an interpretation of the two statutes. The interpreting memorandum of March 29, 1989 stated that the Neutrality Statute meant that "[t]roopers are simply proscribed from taking sides or doing anything not clearly in pursuit of legitimate law enforcement." The memorandum continued, "Assaults, batteries and destruction of private and public property should be prevented and treated as any crime.... However, labor demonstrators on private roads or land should not be bothered until appropriate warrants or court orders are obtained by the owners of said private roads or land." 3

II. The Rum Creek Coal Strike

Later in 1989, the Company began to feel the effect of the statutes. Since April 1989, in the Rum Creek vicinity, the International Union, United Mine Workers of America ("UMWA") employees of Pittston Coal had been on strike. Around August 14, UMWA members began picketing activities at the Company's property in Rum Creek. The Company owned a coal mine and leased a nearby preparation plant. The Company used nonunion companies to truck the coal from the union mine and to run the preparation plant. 4 To get to the plant, the trucks had to drive down a public road and then cross the Company's private bridge onto its land. During the first few days of activity, the striking pickets formed a picket line across the Company bridge. They then barricaded the bridge with trees and scrap appliances and threw rocks and "other projectiles" at the Company's trucks. The Police, not yet apprised of a "labor dispute" in progress, apparently arrested some of the pickets. The Company has claimed that the Police's actions enabled it to continue transporting coal to the preparation plant.

Several days later on August 18, however, the UMWA announced a "selective strike" at the Company's mine and preparation plant. Picketing continued. Over the following days, the Company was unable to transport coal to its preparation plant, employees were injured, and the Company was almost shut down. Neither the Police nor the Company appear to dispute that serious and substantial harm occurred. 5

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During this period, in increasingly frantic letters, the Company repeatedly requested that the Police remove the pickets and investigate alleged criminal acts. But as the district court judge found, "The policy of the Department of Public Safety is and has been that arrests may be made on private property for all other criminal acts except mere trespass during a labor dispute and such [other] arrests have been made." He added, however, "the members of the Department have consistently refrained from interfering in matters involving labor demonstrations or trespass on private roads or lands in connection therewith...." And he concluded, the Police "were ineffective in preventing violence on Rum Creek's premises."

The Company has alleged that a pattern of picketing violence and Police inaction developed and endured. According to the Company, the Police placed its patrols on the public road,...

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