Case 2:23-cv-00001-TSK Document 1 Filed 01/10/23 Page 1 of 9 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE

vs. Civil Action No. 2:23-cv-1 TSK

ANGEL McCAULEY, individually,

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

Buckhannon, Upshur County West Virginia.

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

Buckhannon Walmart, located in Buckhannon, Upshur County, West Virginia.

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

line at register eight.

6. Defendant McCauley proceeded to approach Plaintiff while he was standing in the

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.

7. After listening to Plaintiff, Defendant McCauley advised him that Walmart

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

asked him to leave.

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

to provide ID under these circumstances, and that he would not do so.

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

handcuff Plaintiff and place him under arrest for obstruction.

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

$12.00 LET Fee.

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

on June 22, 2021.

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COUNT ONE - VIOLATION OF THE FOURTH AMENDMENT

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

Plaintiff for an alleged violation of W. Va. Code § 61-5-17 - obstructing an officer.

15. Defendant McCauley seized the Plaintiff and arrested him without a warrant and

without probable cause that he had committed any criminal offense.

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.

18. Plaintiff was charged with obstructing an officer, which provides:

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).

20. "Probable cause is determined by a ‘totality-of-the-circumstances’ approach."

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

L.Ed.2d 441 (1963).

21. On the charge of allegedly obstructing an officer, in violation of WV Code §

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

occurring outside their presence.

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

Walmart, nor given the opportunity to leave Walmart.

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

an alleged standalone violation of § 61-3B-2 would be improper because incarceration is not a

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

prior to placing him under arrest.

27. As a direct and proximate result of Defendant’s actions, Plaintiff suffered harm,

including attorney fees and expenses, for which he is entitled to recover.

PRAYER FOR RELIEF

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.

PLAINTIFF DEMANDS A TRIAL BY JURY

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JOHNNY ALAN SCOTT, JR.

/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]

for the Plaintiff