WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has agreed with a lower court’s decision that police did not use excessive force in subduing a Lewis County man, which resulted in him sustaining a broken ankle.

The Court on Nov. 16 upheld Judge Thomas A. Keadle’s decision last year granting summary judgment to a Lewis County deputy sheriff and a West Virginia State trooper in Floid Posey’s civil rights suit.

In a unanimous, three-page memorandum opinion, the Court said Keadle correctly dismissed the suit after finding Robert E. Davis and D.L. Cayton used necessary force to subdue Posey after being warned he was suicidal, and then, when encountered, threatened them with violence.

Memorandum opinions are issued by the Court in cases that would not be significantly aided by oral arguments, and present no new or significant questions of law.

According to court records, a staff member at Posey’s doctor’s office called the Upshur County Sheriff’s Department on May 29, 2009, to report he was suicidal. Sometime later, his daughter, Susan Stafford, called Lewis County 911 to report Posey threatened to kill himself with a firearm.

At an unspecified time, Davis and Cayton met Stafford at the road leading to Posey’s house. Despite their requests, Posey refused to surrender, and threatened to harm Davis and Cayton.

Eventually, Davis and Cayton were able to subdue Posey. Afterwards, they took him for evaluation to an unspecified mental health facility.

During his examination, Posey’s doctor determined he had a broken ankle that was consistent from a fall. Later, Posey would file suit making claims for not only civil rights violations, but also assault, battery, intentional infliction of emotional distress and negligent hiring, training and supervision.

The Lewis County Sheriff’s Department and the State Police were named as co-defendants in the suit. However, Posey agreed to later dismiss them.

In granting Davis and Cayton summary judgment, Keadle said in making any arrest, a police officer will have to use some level of force. Despite the broken ankle Posey received in the course of being arrested, Keadle said Davis and Cayton acted with the force necessary to subdue and arrest him since he, by his own actions, threatened to harm them.

Absent any evidence that either Davis or Cayton may have kicked or stomped Posey after he was subdued, the Court said Keadle was correct to rule in their favor.

“According to [Davis and Cayton], reasonableness is instead judged by whether the officer’s use of force was within a range of conduct that could be deemed to have been reasonable under the circumstances,” the Court said. “Because the officers had a reasonable belief [Posey] would harm himself, [Davis and Cayton] argue that the actions were warranted and did not constitute excessive force.”

Posey was represented by Buckhannon attorney Erica Klie-Kolenich while Davis and Cayton were represented by Boyd Warner and Melissa Roman with Waters, Warner and Harris and Michael Mullins and Peter J. Raupp with Steptoe and Johnson, respectively.