WEST VIRGINIA RECORD

CHARLESTON – A CSX locomotive engineer and his union are suing Montgomery police and Kanawha County over a breath test he says he was forced to take after striking and killing a pedestrian on tracks near Montgomery.

Rick L. Chapman and United Transportation Union say the officers investigating the accident had no probable cause to administer the breath test and violated federal law and Chapman's constitutional rights.

Chapman named as defendants in his federal lawsuit: Montgomery police officer Gary Perdue, B.R. Martin a Kanawha County Sheriff's deputy, Montgomery police Chief Lawrence Washington, the city of Montgomery, the Kanawha County Sheriff's Department and the Kanawha County Commission.

The case has been set for trial on May 12 before federal judge Joseph R. Goodwin.

Chapman was operating a CSX locomotive near Montgomery on June 11, 2007 at around 5 p.m. when he noticed someone on the tracks, the complaint says. Chapman says he was traveling at around 33 miles per hour, which is the applicable track speed. When he saw the pedestrian, Chapman says he sounded the locomotive's horn and applied the brakes, but still struck and killed the pedestrian.

Perdue was the first officer on the scene, the complaint says. Perdue took preliminary statements and then asked Chapman if he'd been using drugs or alcohol. Chapman said he hadn't. Perdue replied by asking Chapman if he knew he would be tested and that his luggage would be searched for weapons, the complaint says.

Chapman allegedly told Perdue at the time that such a test would violate federal railroad laws because there was no probable cause. Perdue then allegedly told Chapman that he would be arrested and taken to jail and then tested.

Two sheriff's deputies, another Montgomery police officer, Montgomery's assistant police chief and city police Chief Washington then arrived on the scene and interrogated Chapman, the complaint says. At some point, Washington made a call to an unknown person and was heard to say "so you're telling me to stand down?"

Subsequently, the officers continued to question Chapman and eventually made him take a breath test, which came out negative, the complaint says.

CSX officials arrived on the scene and told Chapman to permit a search of his luggage, which turned up a handgun. Chapman alleges he told the officers that he had a valid permit to carry a concealed weapon, but Deputy Martin handcuffed him and placed him in the back of a police car where he was further questioned.

A police officer verified that Chapman had a valid handgun permit and Deputy Martin asked Chapman if he knew he was not under arrest and was only being detained, the complaint says. Chapman alleges he told Martin that he thought he was under arrest from the statement Perdue made earlier about arresting him and taking him to jail.

Martin then released the handcuffs and told Chapman that a taxi would be at the scene to take him to his home terminal, the complaint says. Chapman left the scene in the taxi at around 8 p.m.

Chapman says the events have caused him great distress and that he's had trouble doing his job for CSX. He's seeking compensatory and punitive damages.

U.S. District Court case number: 5:07-0682