WEST VIRGINIA RECORD

WHEELING – Former Jefferson County Sheriff Robert Shirley has been sentenced to one year and one day in prison after pleading guilty to using excessive force in the arrest of a bank robbery suspect.

On May 13, U.S. District Judge John Preston Bailey handed down the sentence, which includes 18 months of supervised release after the prison term. Shirley pleaded guilty to deprivation of rights under the color of law earlier this year.

The man who accused Shirley of kicking him in the head, Mark Haines, is already in prison. He pleaded guilty to robbing a BB&T in Martinsburg and has been sentenced to 225 months in prison.

“It’s unfortunate when a member of the law enforcement community exceeds the scope of his authority and inflicts injuries upon a helpless person,” U.S. Attorney William Ihlenfeld II said in January.

“The best way to deal with bank robbers like Mark Haines is through the criminal justice system and not by the use of unnecessary violence.”

Shirley faced up to 10 years in prison and a fine of $250,000. Bailey did not impose a fine.

In June, a federal grand jury indicted Shirley on charges relating to his arrest of Haines 18 months earlier. According to both the indictment and the civil suit Haines filed, Shirley recklessly beat and kicked Haines following a high-speed chase on Dec. 27, 2010

Shirley and deputies with the Jefferson County Sheriff’s Department began their chase of Haines after receiving a report he attempted to rob the drive-thru of the City National Bank at the Potomac Marketplace shopping center in Ranson.

Eventually, officers with the Charles Town and Ranson police departments joined in and were later followed by the Berkeley County Sheriff’s Department and the West Virginia State Police.

After Haines stopped his pick-up truck in a field across from Files Cross Road, he stepped out of the vehicle with his hands in the air. After one or more of the officers pushed him against the bed of truck, Shirley “climbed into the bed… and kicked [him] repeatedly in the head with a deliberate and sadistic intention to inflict injury on [him],” it is alleged.

In the civil lawsuit, Bailey recently ruled that Shirley can’t be sued “in his official capacity.”

Official capacity claims are not claims against the defendant named, but the entity he or she represents. In this case, Shirley would have represented the Jefferson County Commission.

Had Haines succeeded on his official capacity claim, he would have recovered damages from the commission, not Shirley. Bailey’s ruling was issued April 16.

“In this case, the plaintiff alleges that Sheriff Shirley was the final policymaking authority,” Bailey wrote.

“The question of who exercises final policymaking authority is a question of state law to which the court can apply its independent judgment. This court will assume, without deciding, that Sheriff Shirley was a municipal policymaker.

“Nevertheless, the plaintiff has not only failed to identify a policy or custom that would be sufficient to impose liability on the County Commission, he has failed to state any facts from which this court could infer such a cause of action.”

Bailey says Haines asked him to infer liability from a single decision taken by the highest official responsible.

In a related lawsuit filed March 15 in Jefferson Circuit Court, the county’s insurer – West Virginia Counties Group Self Insurance Risk Pool – says it has no obligation to defend or indemnify the defendants in Haines’ civil suit.

The Risk Pool says the coverage contract contained an Expected or Intended Injury Exception.

On April 11, Circuit Judge Michael Lorensen recused himself from the case. He said he had represented both the Risk Pool and Shirley in the previous year when he was an attorney at Bowles Rice.

The case was reassigned to Christopher Wilkes.

On May 10, Haines filed a motion to have a guardian ad litem appointed to represent his interests in the case. He is named as a party defendant.

Haines’ attorney in his civil case is Harry Waddell.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.