Troopers deny making mistake in arrest

By Kelly Holleran | Jan 12, 2009

MARTINSBURG -- Three West Virginia State Police officers deny they were wrong in arresting a Berkeley County man who they mistakenly believed was a fugitive.

Steven S. Witt filed suit against the West Virginia State Police and three of its officers Oct. 16 in Berkeley Circuit Court, alleging they wrongfully arrested him and beat him during the arrest.

The officers and the State Police moved the case to federal court on Dec. 18, claiming the issues involved in the complaint are a federal matter.

Witt was arrested Jan. 8, 2007, after Trooper J.J. Bowman believed him to be Daniel Anderson, a man wanted on several misdemeanor and felony counts, including attempting to disarm and assault upon a State Trooper, according to the complaint.

Before his arrest, Witt was returning to his Inwood home from dinner with his girlfriend and her three children and was riding as a passenger in his girlfriend's vehicle, the suit states.

As the vehicle was pulling into the driveway, Witt and his girlfriend noticed a police vehicle with its emergency lights flashing pulling in behind them, Witt claims.

"Plaintiff and his girlfriend were surprised and confused at this situation as they had not violated any law," the suit states.

Trooper J.J. Bowman was operating the police cruiser when he saw Witt, who looked like Anderson, riding with his girlfriend, who police believed could be found with Anderson, according to the complaint.

So Bowman called for backup, and Troopers J.D. Burkhart and J.B. Flanigan arrived at the scene, Witt claims.

"The troopers immediately approached Plaintiff's girlfriend's vehicle in an aggressive and unreasonable manner," the suit states. "Believing that Plaintiff was, in fact, Daniel Anderson, the troopers responded to Plaintiff in an angry and agitated manner."

They demanded Witt identify himself, according to the complaint Witt filed.

But as Witt was trying to produce his identification, the troopers physically assaulted him and forced him out of the vehicle, Witt claims.

"As Plaintiff was continuing in his attempt to retrieve his identification, the troopers physically attacked Plaintiff," the suit states. "The troopers repeatedly beat Plaintiff, causing significant and permanent injuries."

Witt was taken to the hospital, then to prison where he remained overnight.

Because of the officers' excessive force, Witt claims he experienced permanent injuries, pain and suffering.

Although they do admit to arresting Witt for falsely believing he was Anderson, the State Police and its three officers deny beating Witt or hurting him.

Witt claims his Fourth and Fourteenth Amendment rights to be free from unreasonable seizures were violated because of the force used by the troopers.

Officers also violated his First, Fourth and Fourteenth Amendment rights by arresting Witt with no probable cause to believe he had committed a crime, the suit states.

"The troopers' actions were negligent, willful, wanton, intentional, malicious and done with callous and reckless disregard of Plaintiff's constitutional rights, and performed in order to unlawfully detain, annoy, embarrass and humiliate Plaintiff," the suit states.

Witt claims he was assaulted and battered by the officers, who "intended to cause a harmful and offensive contact to Plaintiff."

Witt was also unlawfully imprisoned without his consent and without probable cause, according to the complaint he filed.

The State Police adopted policies and customs that constituted "a deliberate indifference to the hiring, training and supervision of the department's employees, and a deliberately indifferent failure to adopt policies necessary to prevent constitutional violations," the suit states.

It owed Witt a duty to properly and adequately hire, train and supervise its troopers, but breached that duty when it hired, trained and supervised Bowman, Burkhart and Flanigan, Witt claims.

In the four-count suit, Witt is seeking unspecified compensatory, actual and punitive damages, plus costs, attorneys' fees and other relief the court deems just.

The State Police, Bowman, Burkhart and Flanigan argue the case should be dismissed for multiple reasons.

First, they claim Witt cannot file a suit against them because the Eleventh Amendment prevents lawsuits against people in their official capacity.

Witt's complaint should be dismissed because the state of West Virginia is not a person.

"As the United States Supreme Court clearly indicated, 1983 was never intended to expose states or their agencies to liability," the motion to dismiss states.

Third, Witt's complaint fails to state a claim for unlawful arrest because his arrest involved a case of mistaken identity.

"In the case at bar, the Defendants had enough information to reasonably believe that Anderson had committed a felony and that Witt was Anderson," the suit states. "The fact that Witt maintained that he was not Anderson is of little moment because 'aliases and false identifications are not uncommon.'"

Because Witt's arrest happened under a lawful process, his complaint fails to state a claim for false imprisonment, the officers allege.

"In Count V of his Complaint Witt alleges false imprisonment," the suit states. "In support of this allegation Witt alleges that the Defendants confined him without his consent and without probable cause. However, the allegations in Witt's Complaint, taken as a whole, belie any claim for lack of probable cause."

Fifth, Witt's complaint should be dropped because it fails to state a claim for supervisory liability, the officers contend.

Witt never makes any factual allegations in his complaint to support the elements required in supervisory liability, according to the motion.

"In Twombly, supra, the United States Supreme Court held that 'a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do,'" the motion states. "Because Witt alleged only the elements of supervisory liability under 42 U.S.C. 1983, his claim is fatally deficient because it fails to establish entitlement to relief through sufficient factual allegations."

The officers and the State Police contend they are entitled to qualified immunity.

As such, they allege Witt's claims for unlawful arrest, false imprisonment and negligent hiring, training and supervision should be dismissed.

"In the case at bar, the unlawful arrest alleged was based on a simple mistake of identity," the motion states. "As noted in Wiita, officers are immune from suit under 1983 as long as their actions were objectively reasonable under the circumstances."

Witt is represented by Christopher P. Stroech and Gregory A. Bailey of Arnold, Cesare and Bailey in Sheperdstown.

The State Police and the three troopers are represented by Lucien G. Lewin and Jason P. Foster of Steptoe and Johnson in Martinsburg.

U.S. District Court case number: 3:08-CV-183

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