State Supreme Courtroom reverses order associated to 2019 case concerned native regulation enforcement


The West Virginia State Supreme Court reversed a 2019 order by the 23rd Judicial Circuit Court on Friday related to a case involving the West Virginia State Police Department of Military Affairs and Public Safety and a minor.

The decision released Friday night by the Supreme Court said, “Upon careful review of the briefs, the appendix record, the arguments of the parties and the applicable legal authority, we find that the Circuit Court erred by considering matters outside the pleadings and failing to appropriately consider whether qualified immunity applied to shield the WVSP from suit.

“Accordingly, we reverse the July 26, 2019 order of the Circuit Court and remand this case to the Circuit Court to enter an order dismissing the vicarious liability and negligent training and supervision claims against the WVSP and for further proceedings consistent with this opinion.”

Twenty-third Judicial Circuit Court Judge Michael Lorensen presided over the case at the Circuit Court level. Chief Justice Jenkins delivered the opinion on behalf of the state Supreme Court.

The WVSP Department of Military Affairs and Public Safety appealed the 23rd Judicial Circuit Court’s July 26, 2019 order in which the motion to dismiss the first amended complaint by “J.H.,” a minor, through his parent and next friend, “L.D.,” for failure to state a claim upon which relief can be granted.

The WVSP contends the circuit court erred in three ways, including committing plain error by denying WVSP’s motion to dismiss when the court considered matters outside the pleadings without giving notice to the parties and without converting the WVSP’s motion to dismiss into one summary judgement, in denying the WVSP’s motion to dismiss in the vicarious liability claim on qualified immunity and in denying the WVSP’s motion to dismiss the negligent training and supervision claim on qualified immunity grounds.

J.H., on the other hand, stressed the court decided correctly in denying the motion to dismiss and deferring its ruling on the issue of qualified immunity until discovery had been undertaken.

The original case revolves around an incident that took place on Nov. 19, 2018 in Berkeley County, involving J.H., WVSP troopers Kennedy and Walker and Berkeley County Sheriff’s deputies Merson and Ennis. The incident occurred when a 16-year-old suspect was involved in a police pursuit after rear-ending Merson’s cruiser. Merson was answering a separate call at Jack Rabbit’s Bar and Grill in the 2500 block of Williamsport Pike at the time. Following the crash, the pursuit ended, and the suspect crashed again before being apprehended by law enforcement when the alleged excessive force occurred.

Gov. Jim Justice — after viewing dash-cam footage of the incident that was later released to the public — called for an investigation. After an internal investigation by the West Virginia State Police, Kennedy and Walker were terminated in January 2019.

Merson and Ennis were also terminated from the sheriff’s department but were later reinstated after peer-review hearings into the case. Walker was reinstated in September of 2020.

J.H. filed a complaint against the defendants on April 24, 2019, alleging the law enforcement officers “were acting both within and outside the scope of their duties” in November of the previous year when they “individually and acting together as a mob under the color of law, brutally and severally beat and hit…J.H., a minor, in (and) about the head and body, causing him injuries along with bodily damage, pain and suffering.” The plaintiff also asserted the troopers were assigned to the WVSP pursuant to the doctrine of resondeat superior and that the WVSP was liable for the troopers’ torts. He also asserted the organization was negligent and/or reckless in failing to properly train officers and to seek out, negate and prevent the the execution of any policy and agreement “wherein its members physically assault and beat up any person accused of a criminal offense” and to exercise field supervision of officers.

Claims against the deputies were similar to those against the troopers.

In J.H.’s first amended complaint, he asserted not only were the acts of the defendants the proximate cause of his injuries but also the acts “were done with malicious purpose, in bad faith and were reckless.” He also alleged all defendants “negligently and intentional inflicted emotional distress” on him.

The Circuit Court then denied a motion to dismiss as well as deferred a ruling on qualified immunity, finding that “even accepting the analysis of the statutes involved, the (trooper defendants’) motions fall short of demonstrating ‘beyond doubt’ that the plaintiff can prove no facts which would entitle him to relief.” The Circuit Court moved ahead with discovery to determine whether facts exist that would demonstrate a public officials’ violation of law of which a reasonable person would have known.

Following a motion to dismiss, the WVSP appealed to the state Supreme Court.

To date, Kennedy is the only officer who has been charged criminally. Chief U.S. District Judge Gina M. Groh found him not guilty of deprivation of rights under color of law — language used to describe crimes committed by police officers while on duty. She dismissed the case permanently. Groh said in her order that prosecutors did not prove Kennedy acted willfully or that any injuries sustained by the juvenile were from Kennedy’s actions and not from the accident or being pulled through the window of the crashed, smoking vehicle.

This ruling came despite the government arguing Kennedy acted in retaliation for injuring Merson and wanted to punish the juvenile. However, Kennedy continuously denied this at trial saying he used compliance strikes on a non-compliant suspect.