Sustained Outrage

Policing the police (and their attorneys)

Charleston lawyer Roger A. Wolfe’s civil lawsuit against the State Police and four of its troopers over his alleged beating while in police custody is still in the discovery phase, and already things have gotten contentious.

(As I reported earlier, the U.S. Attorney’s Office has launched a grand jury investigation into the alleged beating. But this is a separate issue to any possible criminal charges.)

Wolfe asked for copies of the personnel files of the four troopers alleged to have been involved — Paul A. Green, Kristy L. Layne, Jason S. Crane and John K. Rapp Jr. — as well as any records of complaints of misconduct that may have been made against each trooper and any disciplinary action that may have been taken. This is hardly an unusual request during discovery, when both sides exchange information they plan on using during trial.

Incredibly, the State Police’s attorneys, John A. Hoyer and Virginia Grottendieck Lanham, refused, saying that the police have an exemption from disclosing this material under the state’s Freedom of Information Act. And it’s true, the FOIA law does not require the disclosure of “[r]ecords of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement.”

Except…

A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses the VERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:

The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.

But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?

Wrong.

U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.

Virginia Lanham should remember this ruling, as she was one of the two attorneys from Shuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)

Wolfe had to ask U.S. Magistrate Judge Mary E. Stanley, who is presiding over the discovery phase of the case, to compel the State Police to disclose the requested information. Last week, in an 11-page opinion, she did just that, rather emphatically, calling the State Police’s response to Wolfe’s request “unpersuasive” and “unconvincing”:

[S]ince 2003 it has been the law of this District, in § 1983 cases, that police officers’ personnel files and internal affairs files will be disclosed to plaintiffs’
counsel, with appropriate protections
.

Furthermore, she ruled that the State Police must pay Wolfe “reasonable expenses,” including attorney’s fees, for forcing him to take the discovery issue to court. And here’s the best part: The State Police’s response to Wolfe’s listing of his expenses has to “include an identification of the party or attorney whose conduct or advice necessitated [Wolfe’s] motion [to compel].”

Who, I wonder, is going to take credit for that? But kudos to Judge Stanley for demanding an answer.