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Scott Filed Complaint
Scott Filed Complaint
Defendant.
COMPLAINT
This complaint, brought pursuant to 42 U.S.C. Section 1983, the Fourth Amendment to
the United States Constitution, arises out of the defendant’s commission of an unreasonable
search and seizure and false arrest against the Plaintiff at the Buckhannon Walmart, on or about
January 10, 2021 in Upshur County, West Virginia, within the Northern District of West Virginia.
JURISDICTION
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343.
PARTIES
1. The Plaintiff, Johnny Alan Scott, Jr. was at all times relevant hereto a resident of
2. Defendant, Ptlm. Angel McCauley, was at all times relevant hereto a Patrolman
employed by the Buckhannon Police Department, and was at all times relevant hereto acting
under color of law, having an address of 24 S. Florida St., Buckhannon, West Virginia 26201.
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FACTS
3. On January 10, 2021, Plaintiff, Johnny Alan Scott, Jr., was shopping at the
4. On January 10, 2021, Defendant, Ptlm. Angel McCauley, responded to a call from
the aforementioned Walmart alleging that an irate customer was cussing and videoing
employees.
5. Upon arrival, according to Defendant, the Walmart manager on duty advised her
that an unidentified male was cussing and videoing employees, and that Walmart wanted him
“trespassed.” The manager further advised Defendant that the person in question was currently in
checkout line, and asked him if he would speak to her. Plaintiff immediately agreed to speak with
Defendant. Plaintiff began by advising Defendant that, when he entered the store, an employee
demanded the he wear a mask while in the store. Plaintiff, noticing many unmasked shoppers and
employees, advised the employee that he wasn’t going to wear a mask, and proceeded into the
store toward the home and garden section. At that time, Plaintiff heard his description, including
what he was wearing, being broadcast over the store’s intercom system. Plaintiff continued
shopping, and was in the checkout line at register eight when Defendant McCauley approached
him.
wanted to “trespass” him. Plaintiff said that was fine, and told Defendant McCauley that if she
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were to ask him to leave the store, that he would do so, but that no employee up to that point had
8. During the course of this exchange, Defendant McCauley, asked Plaintiff for his
ID. Plaintiff responded to the request by advising Defendant McCauley that he was not required
9. At this point, Defendant McCauley told Plaintiff that his refusal to provide ID to
her constituted obstruction, and that it was a “jail-able” offense. Plaintiff told Defendant
McCauley to do what she thought she had to do. Defendant McCauley then proceeded to
10. As they were leaving the store, Plaintiff correctly stated to Defendant McCauley,
that she was violating his rights inasmuch as West Virginia is not a “stop and ID” State, to which
Defendant McCauley responded incorrectly that it was a “stop and ID” State.
11. Plaintiff was then taken to the Buckhannon Police Department and processed. In
order to be released, Plaintiff was required to post a $1,500.00 cash or surety bond , plus pay a
12. After further reviewing the complaint and the statute, Plaintiff’s obstruction
charge was subsequently dismissed upon the motion of the Upshur County Prosecuting Attorney
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13. The previous paragraphs are hereby incorporated by reference as though fully
restated herein.
14. On January 10, 2021, Defendant McCauley, effected the warrantless arrest of the
15. Defendant McCauley seized the Plaintiff and arrested him without a warrant and
16. At the time of the Plaintiff’s arrest, the facts and circumstances within Defendant
McCauley’s knowledge, were not sufficient to warrant a reasonably prudent person to believe in
the circumstances shown that Plaintiff had violated any criminal statute or offense. Therefore
there was no probable cause at the time of his arrest to justify the seizure.1
17. At no time did Plaintiff commit any act constituting a violation of any statute or
offense.
Any person who threats threats, menaces, acts or otherwise, forcibly or illegally hinders
or obstructs, or attempts to hinder or obstruct, any law-enforcement officer, probation
officer or parole officer acting in his or her official capacity is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred
dollars, and may, in the discretion of the court, be confined in the county or regional jail
not more than one year.
1 Although in criminal cases the question of whether a police officer had probable cause to make an arrest
is a question for the court to decide, there is substantial authority that in § 1983 cases this issue should be
submitted to the jury upon proper instructions defining probable cause. Thacker v. City of Columbus, 328
F.3d 244 (6th Cir. 2003); Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998); McKenzie v. Lamb,
738 F.2d 1005 (9th Cir. 1984); Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).
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19. The Fourth Amendment protects "[t]he right of the people to be secure in their
persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. A seizure is
unreasonable under the Fourth Amendment if it is not based on probable cause. Dunaway v. New
York , 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Thus, "[i]f a person is arrested
when no reasonable officer could believe ... that probable cause exists to arrest that person, a
violation of a clearly established Fourth Amendment right to be arrested only upon probable
cause ensues." Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).
Smith v. Munday , 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates , 462 U.S. 213, 230,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). The inquiry "turns on two factors: ‘the suspect’s
conduct as known to the officer, and the contours of the offense thought to be committed by that
conduct.’ " Id. (quoting Graham v. Gagnon , 831 F.3d 176, 184 (4th Cir. 2016) ). While the court
looks to the information available to the officer on the scene at the time, the courts apply an
objective test to determine whether a reasonably prudent officer with that information would
have thought that probable cause existed for the arrest. Graham , 831 F.3d at 185. Evidence
sufficient to secure a conviction is not required, but probable cause exists only if there is
sufficient evidence on which a reasonable officer at the time could have believed that probable
cause existed for the arrest. Wong Sun v. United States , 371 U.S. 471, 479, 83 S.Ct. 407, 9
61-5-17(a), the plain language of the statute establishes that a person is guilty of obstruction
when he, “by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or
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attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting
in his or her official capacity.” The Fourth Circuit recently examined the statute:
As West Virginia’s high court has "succinct[ly]" explained, to secure a conviction under
section 61-5-17(a), the State must show "forcible or illegal conduct that interferes with a
police officer’s discharge of official duties." State v. Davis, 229 W.Va. 695, 735 S.E.2d
570, 573 (2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611 (2008)).
Because conduct can obstruct an officer if it is either forcible or illegal, a person may be
guilty of obstruction "whether or not force be actually present." Johnson , 59 S.E.2d at
487. However, where "force is not involved to effect an obstruction," the resulting
obstruction itself is insufficient to establish the illegality required by section 61-5-17.
Carney , 663 S.E.2d at 611. That is, when force is not used, obstruction lies only where
an illegal act is performed. This is because "lawful conduct is not sufficient to establish
the statutory offense." Id.
Of particular relevance to our inquiry here, West Virginia courts have held that "when
done in an orderly manner, merely questioning or remonstrating with an officer while he
or she is performing his or her duty, does not ordinarily constitute the offense of
obstructing an officer." State v. Srnsky, 213 W.Va. 412, 582 S.E.2d 859, 867 (2003)
(quoting State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 373 S.E.2d 484, 486 (W. Va.
1988)).
For example, the Supreme Court of Appeals has found that no obstruction is committed
when a property owner asks a law enforcement officer, "without the use of fighting or
insulting words or other opprobrious language and without forcible or other illegal
hindrance," to leave her property. Wilmoth , 373 S.E.2d at 487. This principle is based on
the First Amendment "right to question or challenge the authority of a police officer,
provided that fighting words or other opprobrious language is not used." Id. ; see Graham
, 831 F.3d at 188 ("Peaceful verbal criticism of an officer who is making an arrest cannot
be targeted under a general obstruction of justice statute ... without running afoul of the
First Amendment." (citation omitted)).
Hupp v. State Trooper Seth Cook, 931 F.3d 307 (4th Cir. 2019).
22. The body camera footage of the incident shows that Plaintiff was polite and
cooperative when interacting with Defendant McCauley. He merely questioned her constitutional
authority to demand his ID, and stated that he was willing to be placed under arrest, if she chose
to arrest him. Such conduct does not amount to "forcible or illegal conduct that interferes with a
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police officer’s discharge of official duties." State v. Davis, 229 W.Va. 695, 735 S.E.2d 570, 573
(2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611 (2008)).
23. West Virginia law provides that police officers may not arrest individuals
suspected of misdemeanor criminal violations without a warrant, unless the offense is performed
in the officer’s presence. See W. Va. Code § 15-5-18. No criminal violations were alleged to have
been committed by the Plaintiff in the presence of Defendant McCauley. Therefore, even had
probable cause existed, State law requires that Defendant McCauley, was mandated to obtain an
arrest warrant prior to placing the Plaintiff under arrest for misdemeanor criminal violations
24. No reasonable officer would have believed that probable cause existed for the
Plaintiff’s warrantless arrest on January 10, 2021. Plaintiff was merely questioning Defendant
McCauley’s authority to effect a seizure of him, which he possessed a constitutional right to do,
and which has been explicitly stated by both the Fourth Circuit and the West Virginia Supreme
Court of Appeals, as being lawful. At no time did Plaintiff obstruct or hinder any police officer -
forcibly or otherwise.
25. Nor was there reasonable suspicion to detain and forcibly ID the Plaintiff under
the circumstances. The alleged crime being investigated by the defendant was an alleged
complaint of trespass by Walmart. However, at no time was Plaintiff ever requested to leave
26. The misdemeanor offense of trespass as found in West Virginia Code. W. Va.
Code § 61-3B-2 provides that for conviction of trespass in a structure or conveyance, the
potential sentence is only a fine of not more than $100.00. There is no possibility of incarceration
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under the statute. As the West Virginia Supreme Court observed in State ex rel. Forbes v.
McGraw, 183 W.Va. 144, 394 S.E.2d 743 (W. Va. 1990), pretrial incarceration of a defendant for
potential penalty of the offense. § 61-3B-2 also expressly requires that the suspect refuse to leave
the premises. Defendant never asked, or gave Plaintiff the opportunity, to leave the premises
27. As a direct and proximate result of Defendant’s actions, Plaintiff suffered harm,
WHEREFORE, the Plaintiff demands judgment against the Defendant as prayed for,
including:
A. That damages be awarded against the Defendant in all counts outlined herein for
violation of the Plaintiffs’ civil rights, as well as an award against the Defendant for the costs of
this action, including reasonable attorney fees under 42 U.S.C. § 1988; and
B. Such other and further relief as this Court shall deem just and proper.
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/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
[email protected]