W. Va. State Police v. Walker, No. 20-0558

CourtSupreme Court of West Virginia
Writing for the CourtHUTCHISON, Justice
Citation866 S.E.2d 142
Parties WEST VIRGINIA STATE POLICE, Respondent Below, Petitioner v. Derek R. WALKER, Petitioner Below, Respondent
Docket NumberNo. 20-0558
Decision Date19 November 2021

866 S.E.2d 142

WEST VIRGINIA STATE POLICE, Respondent Below, Petitioner
Derek R. WALKER, Petitioner Below, Respondent

No. 20-0558

Supreme Court of Appeals of West Virginia.

Submitted: September 29, 2021
Filed: November 19, 2021

Patrick Morrisey, Esq., Attorney General, Anthony D. Eates II, Esq., Deputy Attorney General, Charleston, West Virginia, Counsel for Petitioner

Gregory A. Bailey, Esq., Arnold & Bailey, PLLC, Charles Town, West Virginia, Counsel for Respondent


866 S.E.2d 145

The petitioner, the West Virginia State Police, appeals the "Order Reversing the Decision of the Hearing Examiner" entered by the Circuit Court of Jefferson County on July 24, 2020. In that order, the circuit court reversed the September 30, 2019, decision of a West Virginia State Police Grievance System hearing examiner and ordered the reinstatement of the respondent, Derek R. Walker, to his employment as a state trooper. After reviewing the parties’ written and oral arguments, the appendix record on appeal, and the pertinent legal authorities, we conclude that the circuit court impermissibly substituted its judgment for that of the hearing examiner, who was the factfinder in this matter. Accordingly, we reverse the circuit court's order and remand this case to the circuit court for entry of an order reinstating the hearing examiner's order and the respondent's termination.

I. Facts and Procedural History

On the early morning of November 19, 2018, Berkeley County Sheriff's Deputy Christopher Merson was driving his cruiser when he slowed to stop in the roadway. An approaching car rear-ended the cruiser and then sped away. Deputy Merson gave chase and was soon joined by four additional law enforcement officers from the Sheriff's Department and the State Police, including the respondent Trooper Walker. The driver of the fleeing car, sixteen-year-old J.H.,1 led the five officers on a dangerous, high-speed car chase that included weaving through traffic and nearly hitting another car in an intersection. Their speed reportedly exceeded one hundred miles per hour on a winding, two-lane road. The chase lasted less than two minutes, when J.H., traveling at a high rate of speed, violently crashed his car into a utility pole, snapped the pole, and caused an electrical explosion. J.H.’s car flipped and was badly damaged but came to rest on its wheels.

The five officers immediately arrived at the scene to arrest J.H. Deputy Merson's cruiser camera captured video of this arrest, including recording Deputy Merson approaching J.H.’s car and breaking the driver's window with his asp baton; the respondent and Deputy Merson pulling J.H. from his car and flinging him several feet through the air; four of the officers surrounding J.H., who was lying face-down on the ground, and administering a total of eight kicks and eleven punches to J.H. while J.H. was being handcuffed; the respondent attempting to lift J.H. from the ground by pulling only on the handcuffs fastened to J.H.’s wrists behind his back; and State Trooper Michael Kennedy flinging the handcuffed J.H. to the side of the road.2

Several days later, when State Police officials became aware of and viewed the cruiser camera video, State Police Superintendent Jan Cahill placed the respondent on unpaid administrative leave. After an internal investigation, the superintendent terminated the respondent's employment as a state trooper on January 17, 2019. The respondent filed separate grievances regarding his suspension and termination, which were consolidated for purposes of hearing and decision by a hearing examiner for the West Virginia State

866 S.E.2d 146

Police Grievance System.3 The hearing examiner held an evidentiary hearing on July 22, 2019, viewed the video, and heard testimony from witnesses about the car chase, J.H.’s arrest, and the reasons for the respondent's termination. On September 30, 2019, the hearing examiner entered his decision upholding the respondent's suspension and termination.

At the evidentiary hearing, the respondent testified about how he and Deputy Merson approached J.H.’s car and Deputy Merson instructed J.H. to exit the vehicle.4 Deputy Merson drew a firearm and used his baton to break out the driver's window. The hearing examiner found that the respondent did not draw a firearm but donned black gloves as he approached J.H.’s car. The hearing examiner found that the respondent then "forcefully and violently pulled [J.H.] through the car window. As a result of the force used by [the respondent] Walker, [J.H.] was propelled through the car window, into the air, and landed approximately a body and a half length or more from the vehicle." The respondent testified that he and Deputy Merson had to remove J.H. from the car in this manner for the officers’ safety inasmuch as visibility in the car was limited due to smoke and J.H. might have a weapon. The hearing examiner expressly found that the respondent's testimony about this "lacks the hallmarks of credibility." The hearing examiner found that the respondent's purported concerns "are belied by the fact that he stood next to the car; did not draw a weapon; and simply pulled [J.H.] from the vehicle when the window was removed. In light of the fact that [J.H.] had just experienced a horrific crash and Walker's action did not evidence concern for a potential attack from [J.H.], it is clear that the force used in this instance was excessive."

After being removed from his car, J.H., who was estimated to be approximately five feet, four inches tall and one hundred and twenty pounds, was lying prone on the ground. The respondent began placing handcuffs on J.H.’s wrists behind J.H.’s back, and then the respondent and the other officers delivered their blows to J.H. During his testimony, the respondent admitted that he personally kicked J.H. two times while J.H. was lying prone on the ground, but he asserted that the kicks were "compliance strikes" administered in response to resistance by J.H. to the application of the handcuffs. In his decision, the hearing examiner rejected the respondent's testimony. The hearing examiner found that "[a]lthough Walker testified that [J.H.] resisted by tensing up and pulling away from Walker's grip on his wrist area, this is not evident from the video." The hearing examiner explained that

[a]lthough [J.H.] squirmed momentarily on the ground, he was quickly surrounded by two Sheriffs’ deputies and two State Troopers who easily overpowered him. The officers hit and kicked J.H. while forcing his head to the ground. ...

The video demonstrates little to no resistance on the part of [J.H.]. Nonetheless, the officers involved continually punched and kicked [J.H.] while he lay face down on the ground. Although Kennedy was clearly the most aggressive in repeatedly striking [J.H.], Walker participated by kicking him twice. Walker used the term "compliance strike" to justify his actions. While this term may be a term of art in the law enforcement community, it is simply a euphemism in this case. Major White accurately described the activity on the video when he stated that the officers were "beating him up, quite frankly." To be clear, the facts and circumstances of the case do not support Walker's testimony as credible. Indeed, he offered no plausible explanation for kicking [J.H.] at [t]his moment.

The hearing examiner found that after the handcuffs were fastened on J.H.’s wrists behind his back, the respondent "jerked [J.H.] up by the handcuffs from the ground resulting in [J.H.] being momentarily dragged and turned over[.]" The hearing examiner concluded that "there was no evidence of resistance

866 S.E.2d 147

or potential flight" at this point in time, and "no demonstrable reason why" the respondent "chose to use this method" of pulling J.H. to his feet. The hearing examiner also found that Trooper "Kennedy then picked [J.H.] up in the same manner and slung [J.H.] to the side of the road." The respondent denied seeing Trooper Kennedy throw J.H. to the side of the road, but the hearing examiner found that the video depicted the respondent looking in Kennedy's direction.

While J.H. was being transported to the hospital, the respondent contacted the officer in charge, State Police Sergeant Michael Cole, to report that J.H. had fled and the officers had, to quote the respondent, "tuned him up." At the administrative hearing, the respondent testified that "tuned him up" is vernacular commonly used to indicate that officers had to lay hands on a perpetrator while making an arrest. The hearing examiner found that during this conversation with Sergeant Cole, the respondent failed "to report the manner in which he extricated [J.H.] from the vehicle; the fact that he and other officers kicked [J.H.] multiple times; the fact that other officers hit [J.H.] multiple times; or the fact that Walker (and then Kennedy) jerked [J.H.] up by the handcuffs. Rather, Walker simply stated that the officers had ‘tuned him up’ and Sgt. Cole asked no follow-up questions." Sergeant Cole testified at the hearing to express regret and accept responsibility for not asking follow-up questions during this conversation with the respondent.

During the evidentiary hearing, two investigators with the State Police's Professional Standards section, Lieutenant...

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