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IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA


AT HUNTINGTON

MICHAEL WALKER, individually,

Plaintiff,

vs. Civil Action No. : 3:18-cv-01523


Hon. Robert C. Chambers, U.S. District Judge

M. H. LOVEJOY, in his individual capacity,


B.E. DONAHOE, in his individual capacity,
B.W. PAULEY, in his individual capacity,
PUTNAM COUNTY COMMISSION, a
political subdivision of the State of West
Virginia,

Defendants.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION IN


LIMINE TO EXCLUDE PORTIONS OF THE VIDEO

Comes now the Plaintiff, Michael Walker, by counsel, John H. Bryan, and respectfully

requests this Court to deny the defendants’ motion in limine to exclude portions of the video of

the interaction between Defendant Donahoe and the plaintiff. In support hereof, plaintiff states

as follows:

Defendants are seeking to hamstring the plaintiff by concealing an essential portion of the

seizure of the plaintiff performed by defendants Donahoe and Pauley. Moreover, they seek to

conceal the most important part of the video, which shows the outrageous treatment of the

plaintiff, by Defendant Donahoe, under color of law, while he is being detained. And which also

shows what Defendant Pauley observed, and heard, pertaining to the claim of bystander liability

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against him. The video evidence of the entire event is essential for the jury to analyze the

situation, as well as the conduct of both Donahoe and Pauley.

The jury must see the entire video of the search and seizure of Mr. Walker. If Defendant

Donahoe’s language looks bad to the jury, that’s probably because it was bad. But more

importantly, it occurred entirely within the course of his search and seizure of Mr. Walker; at a

time when Mr. Walker was detained. It’s highly relevant evidence, and it gives crucial context to

the understanding of what occurred. The video shows the knowledge from which Defendant

Donahoe was acting when he made the decision to stop, search and seize, Mr. Walker - which

defeats his self-serving claims that he was worried about a school-shooter. It shows Defendant

Donahoe admitting that he stopped the plaintiff without reasonable suspicion, and that he claims

to do the same to others. It shows that he was acting, not on reasonable suspicion, but rather

acting on his frustration with citizens who, in his view, dare to test their rights under the

Constitution - whom he terms “sovereign citizens.”

Defendant Donahoe’s insulting tirade, wherein he calls the plaintiff, and others,

“cocksuckers,” was not at all detached from the incident, but rather was an integral part of the

incident. It’s the actual dialogue between the plaintiff and Defendant Donahoe, pertaining to the

in-progress search and seizure of the plaintiff. One would struggle to find evidence more relevant

to any search and seizure than a video, with audio, of the actual incident. Most police officers

know that if you call a subject you’re detaining a “cocksucker,” while you’re being filmed, that

there may be adverse consequences. Yet that’s exactly what Donahoe did, as if he felt he was not

only above the law, but above professionalism as a law enforcement officer and public employee.

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He must not be allowed to conceal his true behavior during the incident from the jury in a trial

specifically centered on that video.

Even more importantly, Donahoe’s tirade is highly relevant to the jury’s consideration of

damages. Donahoe’s behavior is an integral part of the plaintiff’s evidence supporting the claim

for punitive damages against him at trial. In other cases, this Court has used the following jury

instruction language for punitive damages in Section 1983 search and seizure actions:

In addition to the damages mentioned in other instructions, the law permits the
jury under certain circumstances to award punitive damages.

If you return a verdict in favor of the plaintiff and it has been proved that the
conduct of the defendant was malicious or recklessly indifferent to the plaintiffs’
constitutional rights, then you may, but are not required to, award the plaintiff an
additional amount of money as punitive damages for the purposes of punishing the
defendant for engaging in misconduct and deterring the defendant and others from
engaging in similar misconduct in the future. You should presume the plaintiff has been
made whole for their injuries by the damages awarded under
.

If you decide to award punitive damages, you should consider the following in
deciding the amount of punitive damages to award:

1. How reprehensible the defendant’s conduct was. In this regard, you may
consider whether the harm suffered by the plaintiffs was physical or economic or both;
whether there was violence, deceit, intentional malice, reckless disregard for human
health or safety; whether the defendant’s conduct that harmed the plaintiff also prosed a
risk of harm to others; whether there was any repetition of the wrongful conduct and past
conduct of the sort that harmed the plaintiffs.

2. How much harm the defendant’s wrongful conduct caused the plaintiffs. 


3. What amount of punitive damages, in addition to the other damages


already awarded, is needed, considering the defendant’s financial condition, to punish the
defendant for his wrongful conduct toward the plaintiffs and to deter the defendant and
others from similar wrongful conduct in the future.

4. The amount of fines and civil penalties applicable to similar conduct.

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The amount of any punitive damage award should bear a reasonable relationship to the
harm caused to the plaintiffs.

See e.g., Carpenter v. Perry, et al., Case 2:16-cv-04199 (2016); citing Smith v. Wade, 461 U.S. 30

(1983) (punitive damages may be awarded “when the defendant’s conduct involves reckless or

callous indifference to the plaintiff’s federally protected rights, as well as when it is motivated by

evil motive or intent.”). See also Schaub v. VonWald, 638 F.3d 905, 922-24 (8th Cir. 2011) (the

threshold inquiry for award of punitive damages is whether the evidence supports that the

conduct involved was reckless or callous indifference). See also Kolstad v. American Dental

Ass’n, 527 U.S. 526, 535, 536 (1999), and Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc.,

439 F.3d 894, 903 (8th Cir. 2006), discussing the meaning of “malice” and “reckless

indifference.”

Punitive damages are important to civil rights violations with minimal or nominal actual

damages, such as occurred to Michael Walker. The law allows the jury to issue them to deter the

defendant, and other police officers, from engaging in the same misconduct in the future. In

addition to punitive damages, Defendant Donahoe’s tirade is also relevant to the plaintiff’s actual

damages, wherein he is allowed (and probably mostly limited to) damages for mental and

emotional suffering he experienced as a result of having his civil rights violated by police

officers acting under color of law (at least as far as actual damages capable of being awarded by

the jury). The harsh manner in which Donahoe subjected Michael Walker to the search and

seizure is relevant to the fact that he insulted him and treated with a total lack of respect and

dignity, which in turn is relevant to the consideration of the ensuing mental and emotional harm

suffered by the plaintiff. It’s also relevant to the claim against Defendant Pauley. The jury needs

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to be able to see what Pauley saw, and hear what Pauley heard. Even the end of the video, where

Michael Walker is talking to the camera, immediately following the incident, is relevant to

damages, because it provides a glimpse into the affect which the violation had on his psyche; i.e.,

whether it corroborates him suffering any mental or emotional harm following the encounter.

While the text of 42 U.S.C. Section 1983 “does not state that a plaintiff must prove that

an official acted with a particular state of mind, the particular constitutional right may require the

plaintiff to establish that the defendant acted with a particular state of mind.” See Section 1983

Litigation, Second Edition, Schwartz, Urbonya (2008), at page 7. For instance, in this case, it’s

necessary for the plaintiff to prove that Defendant Donahoe intentionally deprived the plaintiff of

his Fourth Amendment right to be free from unreasonable search and seizure. One of the

elements to be proven at trial in order to establish a violation of the Fourth Amendment’s

prohibition against unreasonable search and seizure is that there was an intentional deprivation of

that right; or that there was an intentional seizure intended by Defendant Donahoe.

Defendant Donahoe’s tirade directly addressed his intention to deprive the plaintiff of that

right. The plaintiff should not be unfairly handicapped at trial merely because Donahoe’s

demeanor and poor choice of words make him look bad. Additionally, in a search and seizure

case, whether a “reasonable person would have believed that he was not free to leave,” is yet

another prima facie element to be proven. Id. at 47. Plaintiff must have the opportunity of

showing the full video to the jury so that they may hear exactly what the plaintiff heard, and see

what the plaintiff saw, during the course of the seizure.

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WHEREFORE, the plaintiff respectfully requests that this Court deny the defendants’

motion in limine to exclude portions of the video of the incident, and for such other relief as this

Court deems just and fit.

MICHAEL WALKER
By Counsel

/s/ John H. Bryan


John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEYS AT LAW
611 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com

for the Plaintiff

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IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
AT HUNTINGTON

MICHAEL WALKER, individually,

Plaintiff,

vs. Civil Action No. : 3:18-cv-01523


Hon. Robert C. Chambers, U.S. District Judge

M. H. LOVEJOY, in his individual capacity,


B.E. DONAHOE, in his individual capacity,
B.W. PAULEY, in his individual capacity,
PUTNAM COUNTY COMMISSION, a
political subdivision of the State of West
Virginia,

Defendants.

CERTIFICATE OF SERVICE

I, John H. Bryan, do hereby certify that I have delivered a true copy of the foregoing

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE

PORTIONS OF THE VIDEO upon counsel of record by using the CM/ECF System, this the

30th day of January, 2020, and addressed as follows:

John P. Fuller, Esq.


Charles R. Bailey, Esq.
Adam K. Strider, Esq.
BAILEY & WYANT, PLLC
500 Virginia Street, East, Suite 600
Post Office Box 3710
Charleston, WV 25337-3710

/s John H. Bryan

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