A July Full of Fireworks and Celebrations! |
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As the month of July comes to a close the attorneys at Bailey & Wyant PLLC have had an eventful Summer. Many of us had the opportunity to spend quality time with our friends and families, and even take in some long overdue sporting events. While celebrating the birth of our nation we also celebrate one of our very own on his nuptials. Please enjoy this month's newsletter. See you again in August! |
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Copycat Crimes can reasonably contribute to Reasonable Suspicion |
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Bailey & Wyant PLLC's Managing Member Charles R. Bailey and Associate Adam K. Strider of the Charleston office. |
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Bailey & Wyant Managing Member and Associate Adam Strider notched a win on behalf of two Putnam County Deputy Sheriffs in the Fourth Circuit, which held that the Deputies acted upon reasonable suspicion when they stopped an individual open-carrying an AR-15 style rifle near a school in 2018. In a published opinion authored by Judge Robert B. King and joined by Judge Barbara M. Keenan, the Fourth Circuit affirmed Judge Robert C. Chambers’ March, 2020 opinion in the Southern District of West Virginia which first found reasonable suspicion. The third panel judge, Judge Julius N. Richardson wrote a separate opinion concurring in the judgment, stating that he would affirm the District Court opinion on the basis of qualified immunity.
Significant to the Court’s opinion, the subject, Michael Walker, was observed walking westbound on U.S. Route 33 in Scott Depot, Putnam County, West Virginia, openly carrying an uncased AR-15 style rifle. This prompted a concerned citizen to call 9-1-1, to which the two Deputies responded. At the time of the stop, Mr. Walker was observed dressed in militia-like clothing, and walking toward Teays Valley Christian School, less than a mile away from the school at the time of the stop. This stop occurred seven (7) days after the notorious school shooting in Parkland, Florida, and Mr. Walker was carrying the same type of gun used in that school shooting. The Deputies stopped Mr. Walker and asked for his identification. Mr. Walker initially refused to provide it, but later relented. Once the officers observed that Mr. Walker was over the age of 18 and called in a background check which revealed that he was not prohibited from possessing a firearm. He was then allowed to leave, and was stopped for only about 8 minutes.
Mr. Walker filed suit, alleging that the stop violated his Fourth Amendment rights. Applying the qualified immunity analysis, the Southern District held that the facts in the officers’ knowledge amounted to reasonable suspicion for an investigatory stop premised upon a concern that Mr. Walker may have intended to perpetrate a school shooting, and that in the alternative, qualified immunity would still protect the officers, because no pre-existing legal authority would put the officers on notice that that constituted a Fourth Amendment violation. On appeal, the Fourth Circuit notably rejected the Plaintiff’s contention that it was improper for the officers or the Court to consider the type of firearm or the proximity of the Parkland Shooting in determining whether reasonable suspicion for the stop existed, noting that Courts have previously held that concerns of copycat crimes can reasonably contribute to reasonable suspicion, and that even legal objects can contribute to reasonable suspicion in certain contexts.
The case is of record in the Fourth Circuit as Walker v. Donahoe, Appeal No. 20-1547. The Plaintiff has moved for both panel and en banc rehearing of the case.
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Associate to Speak at the upcoming Gavel National Conference VI |
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Associate Jeffrey M. Carder of Bailey & Wyant PLLC's Charleston Office |
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Associate Attorney Jeffrey M. Carder has been selected by the Gavel Education Committee to speak at this January’s Gavel National Conference VI at the PGA National Golf Resort in Palm Beach, Florida on the interaction of Family Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), and Workers’ Compensation.
The Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and workers’ compensation laws are not mutually exclusive – they all can and very often do intersect. Each of these laws serves a different purpose. Workers' compensation compensates employees who cannot work based on a work-related injury, ADA protects and aids individuals with a disability, and FMLA provides job protected leave to individuals with a serious medical condition. But, by qualifying under one law, an employee is not automatically disqualified from the others. When employees need time off because of a medical or disability-related issue, it is important to remember that they may have rights under all of these laws at the same time. In certain circumstances, provisions of the ADA, the FMLA and Workers' Compensation laws can apply to the same employee. Employers may find understanding their responsibilities under all 3 laws a challenge as well as downright overwhelming at times. It is essential for an employer to understand the interplay of these laws to assure legal compliance as well as to provide employees with the benefits and protections each law provides. An employer who fails to consider all three could face costly litigation which may result in lost wages, back pay, reinstatement, retroactive benefits, compensatory damages, and punitive damages. This presentation is designed to help employers successfully navigate the intersect between FMLA, ADA, and workers’ compensation laws.
Jeffrey will be presenting with Barry Montgomery, an employment law attorney from KPM Law in Richmond, Virginia to attorneys from all across the country at this January’s conference.
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Keeping our Readers in the Know
Article by Associate Samuel M. Bloom
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The West Virginia Appellate Reorganization Act, signed into law several months ago, will have a significant impact on many different aspects of litigation in the State of West Virginia. One of these significant impacts is how workers’ compensation claims will be litigated. Presently, an administrative law judge at the Office of Judges will hear a challenge made by a workers’ compensation claimant seeking to challenge a claim administrator’s decision. If either party should choose to appeal the decision of an administrative law judge, the appeal goes to the Board of Review.
Come July 1, 2022, the Office of Judges will stop hearing new challenges and the new court of first jurisdiction will be the Board of Review. The Office of Judges will continue to hear all challenges made prior to July 1, 2022. However, the Office of Judges will cease to officially exist on October 1, 2022. At that time, any challenges still unresolved by the Office of Judges will be transferred to the Board of Review. The Board of Review will be made up of five judges. These judges at the Board of Review have the authority to employ hearing examiners that may be delegated the authority to consider procedural matters, motions, and make final recommendations to the judge. Should a decision made by the Board of Review be appealed by a party, that party will appeal to the new intermediate court of appeals.
As a side note, it is worth mentioning that the intermediate court of appeals may elect to charge a filing fee of up to $200 for an appeal. There is no filing fee with the Office of Judges when protesting a decision currently. Thus, this $200 filing fee may dissuade parties from pursuing an appeal on a workers’ compensation claim, especially if it is a frivolous attempt.
Ultimately, time will tell whether this change in how workers’ compensation claims are litigated is in the interest of judicial economy. This change will end up eliminating one of the two administrative courts that deal solely with workers’ compensation cases and may reduce the number of appeals being brought.
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West Virginia Bar Association's 134th Annual Meeting |
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The West Virginia Bar Association held it's 134th Annual Meeting at the Greenbrier Resort in White Sulphur Springs, WV. |
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Pictured on the left is Managing Member Charles R. Bailey and Member Jordan K. Herrick; and on the right Carte Goodwin, President of the Association with Charles R. Bailey. |
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Fireworks and Love in the Air |
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Bailey & Wyant PLLC proudly announces the marriage of Associate Samuel M. Bloom to his lovely Bride Juliet. The couple exchanged vows in a beautiful ceremony at Edgewood Country Club earlier this month. Best wishes Mr. and Mrs. Bloom as you begin your journey together as husband and wife. |
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Our philosophy is simple. We provide aggressive and effective legal representation, while being ever mindful of each client's individual needs, goals, and economic interests. No matter how complex or novel, our focus in a case is always to reach the right resolution for our client.
304.345.4222 CHARLESTON
304.233.3100 WHEELING
304.901.2000 MARTINSBURG
Sincerely,
Bailey & Wyant, PLLC
304-345-4222
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