CHARLESTON - The West Virginia Supreme Court of Appeals has ruled that a lawsuit against a state trooper and deputy sheriff can continue.

On appeal by the law enforcement officers, and their employers, the state Supreme Court also found substantial questions of material fact exist in the record for jury resolution. The court affirmed the circuit court's order declining to afford the officers qualified immunity, according to the Nov. 10 opinion.

Justice Menis Ketchum authored the majority opinion.

In the appeal from Tyler Circuit Court, the plaintiff, Thomas Jefferson Wagner, contends that he was improperly arrested by a deputy sheriff and a state trooper.

Wagner claims that a reasonable jury could find that Deputy J.K. Maston and Trooper S. Curran arrested him without probable cause to do so, and that they unreasonably used excessive force that injured him during the arrest, in violation of his constitutional and statutory rights.

The law enforcement officers and their employers contend that their actions were protected by the doctrine of qualified immunity.

In an order dated Sept. 24, 2014, the circuit court refused to afford the law enforcement officers qualified immunity and denied the officers’ motion for summary judgment.

The circuit court determined that there were numerous disputes about the material facts supporting the immunity determination, disputes that should be resolved by a jury.

On April 11, 2009, Wagner walked out of Big C's Lounge in Middlebourne, where he'd had two or three beers in the two or three hours that he was at the bar.

Big C's is located one block from Wagner's residence. Wagner, a 50-year-old, heavy-set, balding boilermaker who owned and lived in the apartment building across from the Tyler County Courthouse, was walking south on the sidewalk when he came to the intersection and looked for traffic before crossing.

Wagner saw a State Police cruiser parked on Court Street with two officers inside who were watching him and he turned to the police cruiser and asked if everything was okay or if something was wrong that he should be aware of for himself and his tenants.

When he did not receive a response, Wagner asked again if everything was alright and the police cruiser window came halfway down, but he heard no response.

At that point, it began to rain harder and Wagner claimed he pulled his sweatshirt hood over his head and "hustled down the street" to his residence that was 15 to 20 yards down the sidewalk. As he reached the building, he turned down a gravel driveway that paralleled the building's porch and the next thing he recalled was someone "crashing" into his back, simultaneously grabbing his right arm and slamming his face into the spindles of the porch railing.

"As his arm was being pulled behind his back, Mr. Wagner said he felt an explosion of extreme pain," the opinion states. "Mr. Wagner quickly realized that he was being confronted by the two law enforcement officers he had seen moments before."

Maston was the individual who pushed and grabbed Wagner and Curran had been driving the cruiser and helped Maston handcuff Wagner.

Lillian Leeson, a tenant of the apartment building, heard the commotion and went out on the porch to investigate. She said Wagner was so tightly pressed against the porch that he could not have moved if he wanted to and that she heard Wagner ask the officers why they were hurting him.

At the time, it was pouring down rain and the officers asked Wagner why he was running, to which he replied that he was trying to get out of the rain. Leeson claimed she never heard Wagner yell at the officers.

Wagner believed the officers had broken his arm and asked them to take him to the hospital, which they did. At the hospital, blood was cleared from his face, he received an injection of pain medication and he received an arm sling. He spent the remainder of the night in a regional jail before appearing before a magistrate in the morning.

Subsequent medical testing revealed that Wagner had suffered a complete tear of the common extensor tendon and radial collateral ligament in his right elbow. He later underwent reconstructive surgery on his elbow with an allograft cadaver Achilles tendon and healed wearing a cast and elbow brace.

In their reports, the officers claimed that Wagner shouted obscenities and ran from them.

On March 31, 2011, Wagner filed his lawsuit against the police officers and their departments for the officers' attack, assault and/or batter of the plaintiff.

On Sept. 25, 2014, the circuit court denied the defendants' motion for summary judgment and declined to afford qualified immunity. The defendants then appealed the summary judgment order refusing to dismiss the plaintiff's claims on the grounds of qualified immunity.

The Supreme Court affirmed the circuit court's decision, agreeing that it properly denied summary judgment because there are genuine issues of material fact underlying the immunity determination.

Maston, the Tyler County Sheriff's Department, Curran and the West Virginia State Police were represented by Gary E. Pullin, Emily L. Lilly and Michelle Rae Johnson of Pullin, Fowler, Flanagan, Brown & Poe PLLC.

Wagner was represented by David A. Jividen and Chad D. Haught of Jividen Law Offices PLLC.

W.Va. Supreme Court of Appeals case number: 14-1113

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