CHARLESTON – Assault and battery charges filed in December 2013 by a police officer against Chapmanville attorney Ben F. White have been dismissed.
White was accused of making an obscene gesture toward three State Police troopers as he was walking past them in Giovanni's restaurant in Chapmanville. He was also accused of obstructing a police officer.
Jerry Flanagan, a retired Mercer County magistrate, was assigned to the case after Logan County magistrates recused themselves. He dismissed the charges on March 30.
Senior Trooper T.D. Boggs authored the criminal complaint, claiming that the officers had dealt with White before and knew that he had a "disdain for law enforcement" and had previously been aggressive toward law enforcement.
White was also known to carry a weapon, according to the complaint, so Boggs asked him to leave the restaurant to ensure there would not be a confrontation. Boggs claimed White refused, became belligerent, and began yelling and cursing. White also stepped toward Boggs aggressively, according to the criminal complaint.
Boggs claimed he feared White was going to strike him, so she shoved him away and advised him that he was under arrest. While the police were attempting to arrest him, White pulled away and shoved Boggs, according to the complaint.
White's attorney, Timothy Koontz filed a motion to dismiss, stating that after Boggs shoved White, White pushed the officer away. Police then tackled him, put him on the floor and took him into custody.
In the motion to dismiss, Koontz argued that White's arrest was illegal, as it was in retaliation for the exercise of speech protected under the First Amendment and that White was allowed to resist an illegal arrest.
"In numerous cases, courts have directly held that an individual's extension of his middle finger toward a police officer is protected speech, even when accompanied by cursing and expletives directed at the officer," the motion states.
Koontz argued that charging White with obstruction was improper because the officers were eating dinner and, according to state law, to be guilty of that charge, one must interfere with an officer while they are acting in an official capacity.
Koontz said the state troopers in Logan had charged White with 19 traffic violations over a short period of time, most of which were dismissed.
When White entered the restaurant, Boggs and other state troopers smirked at him and rolled their eyes at him.
Koontz said the judge and prosecutor involved were very experienced and no-nonsense people.
"I have many friends who are state troopers and former state troopers," Koontz said. "This does not represent state troopers as a whole, but just a small group who have abused their power. They need an internal affairs department that is as strong as Kanawha's is and they would be shown the door."
