WEST VIRGINIA RECORD

WHEELING – Two Ohio County men are challenging what they claim is a campaign of harassment by Wheeling police against citizens lawfully carrying firearms in the Friendly City.

The city of Wheeling, its police chief and three of its officers are named as co-defendants in a 41-count civil rights suit filed by Keith Owen Campbell, and his father, Larry A. Campbell. In their complaint filed in U.S. District Court on May 11, Keith, 45, and Larry, 70, both of Wheeling, allege the city violated, among other things, their Second and Fourth Amendment rights when officers detained Keith, and temporarily confiscated the handgun he was carrying without any probable cause.

According to their suit, the Campbells went to lunch at the Kentucky Fried Chicken on Zane Street on Dec. 4. At the time, Keith was carrying in plain sight a .45 caliber pistol in a retention holster.

They maintain the KFC displayed no signs prohibiting anyone carrying a firearm from entering or were told by any employees they were not welcome there.

After they ordered their meal, they sat down and said a prayer. After the prayer, Keith was approached by Officer Matthew Kotson who asked him "'Why are your carrying a gun?'"

When Keith replied, "'Because I'm allowed to. It's perfectly legal,'" Kotson first asked to see identification. Stating he did not "consent to this," Keith, according to the suit, provided Kotson his driver's license.

After producing his driver's license, Keith, an attorney, asked Kotson on what grounds for "reasonable suspicion" or "probable cause" he had for detaining him. Though he acknowledged the open-carry of a firearm is lawful in West Virginia, Kotson said carrying one in a restaurant was "suspicious and sufficient grounds for detention."

Though carrying his firearm openly, Kotson asked Keith if he had a concealed weapons permit. Like he did with his license, Keith provided it under protest.

According to the suit, Kotson then called the dispatcher, and asked for a supervisor. Though he replied "yes" when Keith asked if he was free to leave, Kotson, Keith alleges, obstructed his ability to leave, and told him his supervisor wanted to speak with him.

About 10 minutes later Sgt. Rusty Jewell arrived. Like Kotson, he asked to see Keith's driver's license and concealed weapons permit which he, again, provided under protest.

According to the suit, Jewell next asked Keith to surrender his pistol. Fearful that one of the unidentified officers who arrived prior to Jewell would make good on a threat to shoot, instead of taze him, if they felt he would make a move toward his pistol, Keith said he would not resist if Jewell removed it from the holster himself.

Despite several attempts while Keith was seated, Jewell was unable to remove the pistol from the holster. Only after Keith instructed him how to do it "smartly" was Jewell successful.

Upon removing the magazine from the pistol, Jewell attempted to eject the one bullet in the chamber. In doing so, while disabling the manual safety, Jewell pointed the pistol at Larry's head causing him to leap out of his seat.

After Jewell was able to successful clear the weapon, he reported its description and serial number to the dispatcher. While waiting for a response, Keith restated his objections to being detained and his pistol seized.

According the suit, Jewell, like Kotson, admitted while the open-carry of a firearm was legal in West Virginia, "'The mere carrying of a gun is suspicious and thus grounds for the stop.'" He added, "'The police can stop any person with a weapon at any time and run their name and the gun's numbers."

Shortly thereafter, Jewell received a call from the dispatcher Keith's weapon was "clear." When Jewell offered his pistol back, Keith refused unless it was returned in the same manner Jewell found it.

According to the suit, Jewell not only had difficulty in locking the magazine in place, but also caused a jam when he attempted to chamber a round. After he successfully cleared the jam – which Keith avers is the first time that happened since he bought the pistol – Jewell placed it back into the holster, but with the safety off.

Then, Jewell told Keith that until they get to "'know who you are and that you're not a bad guy," he can be assured he would be stopped by any WPD officer seeing him openly carrying a firearm. After that, Keith maintains, Jewell, Kotson and one of the unidentified officers left the KFC.

Two days later, Keith says he contacted WPD Chief Robert G. Matheny about the encounter he had with Kotson, Jewell and the other officers. According to his suit, Keith says Matheny parroted Kotson and Jewell's statements that the open carrying of a handgun was so "unnatural and uncommon" that constitutes "suspicious activity" for which WPD officers have grounds to stop and detain someone.

In the course of the conservation, Keith alleges Matheny added that "'until a court directs me otherwise, [it] will be the policy of the Wheeling Police Department' to stop, detain, disarm and question any individual who openly carries a handgun."

Joining the Campbells as co-plaintiffs in the suit is the West Virginia Citizens Defense League, a non-profit, state-based Second Amendment advocacy group. WVCDL claims WPD's policy of deeming anyone carrying a handgun as suspicious, and detaining them violates the constitutional rights of its members who may live, work or travel through Wheeling.

Along with unspecified damages, court costs and attorney fees, the Campbells and WVCDL seek a preliminary and permanent injunction retracting WPD's policy of deeming anyone carrying a firearm as "suspicious" and subject to immediate detention, and also requiring WPD to be trained on the proper way to interact with citizens carrying firearms. They are represented by Beckley attorney James M. Mullins, Jr.

The case is assigned to Judge Frederick P. Stamp, Jr.

U.S. District Court for the Northern District of West Virginia, case number 11-cv-69