CHARLESTON — The West Virginia Supreme Court of Appeals agreed that reversing the termination of an officer's employment was wrongfully done and his termination was warranted.
The Supreme Court reversed the circuit court’s order and remanded the case to the circuit court for entry of an order reinstating the hearing examiner’s order and the respondent’s termination, according to the majority opinion.
The West Virginia State Police appealed an order reversing the decision of the hearing examiner that was entered by Jefferson Circuit Court on July 24, 2020.
Justice John Hutchison authored the majority opinion. Chief Justice Evan Jenkins and Justice Tim Armstead dissented and authored a separate opinion.
"In that order, the circuit court reversed the September 30, 2019, decision of a West Virginia State Police Grievance System hearing examiner and ordered the reinstatement of the respondent, Derek R. Walker, to his employment as a state trooper," Justice Hutchison wrote. "After reviewing the parties’ written and oral arguments, the appendix record on appeal, and the pertinent legal authorities, we conclude that the circuit court impermissibly substituted its judgment for that of the hearing examiner, who was the factfinder in this matter."
Berkeley County Sheriff's Deputy Christopher Merson was driving his cruiser on Nov. 19, 2018, when he slowed his cruiser on the roadway and he was approached by a car that rear-ended him and then sped away. Merson, along with several other law enforcement officers, including Walker, chased 16-year-old J.H. for a short time when J.H. crashed his car into a utility pole, which caused an electrical explosion and the car flipped.
Merson's police cruiser captured a video of J.H.'s arrest, showing Merson approaching the car, breaking the window with his asp baton and he and Walker pulling J.H. from the car, throwing him several feet. The video also showed the officers administering a total of eight kicks and 11 punches to J.H. while he was being handcuffed.
Several days later, once State Police officials became aware of the video, Walker's employment was suspended. It was then terminated on Jan. 17, 2019. Walker filed grievances for the suspension and termination and the hearing examiner upheld the decisions. The case was appealed to the circuit court and the circuit court reversed the hearing examiner's decision. The case was then sent to the Supreme Court.
"We remand this case to the circuit court for the entry of an order reinstating the September 30, 2019, decision of the West Virginia State Police Grievance System hearing examiner," Hutchison wrote.
Jenkins authored the dissenting opinion, in which Armstead joined.
"I agree with that portion of the majority’s opinion reversing the circuit court’s order in this case insofar as the circuit court improperly substituted its findings of fact for those of the hearing examiner who was the fact finder in the first instance and to whom the circuit court should have deferred," Jenkins wrote. "Accordingly, I concur with the majority’s opinion to the extent it reverses the circuit court’s order and remands the case for the reinstatement of the hearing examiner’s decision on this basis."
However, Jenkins wrote that he disagreed with the remainder of the majority’s opinion that reversed the circuit court’s order as it pertains to the hearing examiner’s excessive force analysis.
"In this regard, I believe the circuit court correctly determined that the hearing examiner's legal analysis of objective reasonableness in the excessive force context was deficient because the hearing examiner failed to consider all of the factors instructing such an analysis. Accordingly, I respectfully dissent from this portion of the majority’s opinion."
West Virginia Supreme Court of Appeals case number: 20-0558
