W. Va. State Police v. Walker
Decision Date | 19 November 2021 |
Docket Number | No. 20-0558,20-0558 |
Citation | 866 S.E.2d 142 |
Parties | WEST VIRGINIA STATE POLICE, Respondent Below, Petitioner v. Derek R. WALKER, Petitioner Below, Respondent |
Court | West Virginia Supreme Court |
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
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.
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 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 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
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 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 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 Kevin Smouse and Major Joe White, testified about their internal investigation of this matter and the factors that led to the respondent's discharge from employment. As part of their review, they considered whether the respondent had committed any of five different violations of State Police legislative regulations: failing to comply with State Police policy and procedure5 ; violating any law or engaging in criminal conduct6 ; using unnecessary force during an arrest/custody procedure7 ; committing conduct unbecoming a state police trooper8 ; and/or interfering with the rights of others.9 Lieutenant Smouse concluded that the respondent's conduct was unbecoming an officer which, pursuant to State Police legislative...
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