United States District Court, S.D. West Virginia, Charleston Division
December 28, 2016
TAMMI HICKS, et al., Plaintiffs,
1st SGT. M.L. OGLESBY, II, et al., Defendants.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' Motion for Summary
Judgment. (ECF No. 28.) For the reasons that follow, the
motion is GRANTED.
case arises from the shooting death of Richard D. Kohler by a
Special Response Team (“SRT”) of the West
Virginia State Police. Plaintiff Tammi Hicks, Mr.
Kohler's daughter, brings this action on behalf of his
estate. Some material facts remain in dispute, but the
following provides a general summary of the facts surrounding
the shooting, recounted primarily by the members of the SRT,
the only surviving witnesses.
early morning hours of June 26, 2013, an SRT comprised of
eight West Virginia State Police (“WVSP”)
troopers approached Mr. Kohler's mobile home in Maysel,
Clay County, West Virginia. The troopers had come to execute
a search warrant, the product of a months-long investigation
into Mr. Kohler's alleged trafficking of opiate
painkillers. The warrant conferred authority on the SRT to
seize stolen goods that Mr. Kohler reportedly stored at his
residence to trade for opiate pills. The troopers approached
with caution. Earlier that morning, they had met with certain
members of a local Drug Enforcement Administration
(“DEA”) task force to review a plan for the
tactical entry into Mr. Kohler's home. There, they
learned from DEA Task Force Officer W.M. Comer that Mr.
Kohler was rumored to be paranoid and, despite his status as
a prohibited person, kept several firearms at his residence
which Mr. Kohler had vowed to use against any law enforcement
agent that entered his property. (R. of Investigation at 8,
ECF No. 28-1.)
the DEA task force members staged approximately one-half mile
away, the WVSP SRT assembled on Mr. Kohler's porch. Each
trooper was armed, according to police records, with either a
.223 caliber rifle or .45 caliber pistol. (See R. of
Investigation at 1-3, 5-6.) The SRT knocked on the front door
and announced their presence, yelling, “West Virginia
State Police, search warrant!” (Id. at 13.)
The SRT received no audible response from Mr. Kohler, but
heard shuffling and “thumping noises” from within
the trailer. (Id. at 14.) Some troopers reported
that they saw a window air conditioning unit moving.
(Whittington Decl. at 1, ECF No. 28-3 at 8; Stalnaker Decl.
at 1, ECF No. 28-3 at 22.) After a “reasonable amount
of time” passed, the SRT made the decision to manually
breach Mr. Kohler's front door. (Mefford Decl. at 1, ECF
No. 28-3 at 26.)
manner of the breach is the primary point of factual
contention in this case. For their part, the troopers
describe using a ram and a Halligan tool to force open the
door. (R. of Investigation at 9.) Plaintiff, on the other
hand, claims that the troopers fired through the trailer door
with a shotgun while it remained closed, supposedly in an
attempt to dislodge the door from its hinges. No matter how
effected, the breach was successful. As the door swung open,
the SRT came face to face with Mr. Kohler, who stood in the
hallway of the trailer with a rifle pointed straight at them.
Defendants Oglesby, Harper, Lowe, and Mefford all opened fire
and Mr. Kohler was killed in the barrage of bullets that
sues the SRT entry team (Defendants Harris, Mefford, Oglesby,
Lowe, Harper, Whittington, Drake, and Hensley); five
additional WVSP troopers who were on duty near the vicinity
of Mr. Kohler's home on the morning of his death
(Defendants Adkins, Berry, Campbell, J.M. Comer, and Totten);
Task Force Officer W.M. Comer; and the WVSP. The
Complaint's first and third counts allege federal
constitutional claims under 42 U.S.C. § 1983 and consist
of a due process claim under the Fourteenth Amendment (Count
I) and an excessive force claim under the Fourth Amendment
(Count III). The second and fourth claims, which arise under
state law, allege a state constitutional claim under Article
III, Section 6 of the West Virginia Constitution (Count II),
and common law battery (Count IV).
have moved for summary judgment on all counts. Defendants
contend that summary judgment must be entered in favor of the
WVSP, because it is not a “person” within the
meaning of § 1983, and in favor of Defendants Campbell,
J.M. Comer, K.H. Totten, and W.M. Comer, because no evidence
has been developed proximately connecting them to the events
at issue. With respect to the federal claims, Defendants
invoke the protections of qualified immunity and argue that
the troopers' use of force against Mr. Kohler was
objectively reasonable. The motion has been fully briefed and
is ready for disposition.
of the Federal Rules of Civil Procedure governs motions for
summary judgment. That rule provides that summary judgment
should be granted if “there is no genuine dispute as to
any material fact.” Fed.R.Civ.P. 56(a). A genuine
dispute of material fact exists if, in viewing the record and
all reasonable inferences drawn therefrom in a light most
favorable to the non-moving party, a reasonable fact-finder
could return a verdict for the non-movant. See Fed.
R. Civ. P. 56(e). The moving party bears the initial burden
of showing that there is no genuine issue of material fact,
and that he is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). “The burden then shifts to the nonmoving party
to come forward with facts sufficient to create a triable
issue of fact.” Temkin v. Frederick Cnty.
Comm'rs, 945 F.2d 716, 718-19 (4th Cir. 1991). The
non-moving party must offer some “concrete evidence
from which a reasonable juror could return a verdict in [her]
favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986).
party may support her factual assertions by citing to almost
any material in the summary judgment record, Fed.R.Civ.P.
56(c)(1), the opposing party may object on grounds that
“the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2). Under Rule 56, a
court may consider only evidence that can be reduced to
admissible form in ruling on a summary judgment motion.
See id.; Kennedy v. Joy Techs., Inc., 269
Fed. App'x 302, 308 (4th Cir. 2008) (“In assessing
a summary judgment motion, a court is entitled to consider
only the evidence that would be admissible at trial.”
(citation omitted)). Thus, hearsay statements and unsupported
speculation cannot support or defeat a motion for summary
judgment. See Greensboro Prof'l Firefighters
Ass'n v. City of Greensboro, 64 F.3d 962,
967 (4th Cir. 1995); Ennis v. Nat'l Ass'n of Bus.
& Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
concedes much in her response to the motion for summary
judgment. For starters, Plaintiff agrees that summary
judgment should be entered in favor of the WVSP as well as in
favor of Defendants N.K. Campbell, J.M. Comer, K.H. Totten,
and W.M. Comer. In harmony with these concessions, the Court
grants summary judgment as to Counts I, II, and III against
these Defendants. Plaintiff further admits that the battery
claim alleged in Count IV does not survive Mr. Kohler's
death, see Ray v. Cutlip, No. 2:13-cv-75, 2014 WL
858736, at *2 (N.D. W.Va. Mar. 5, 2014), and this claim will
be summarily dismissed as well. This leaves the due process
and excessive force claims under § 1983 (Counts I and
III), and the West Virginia state constitutional claim (Count
II), and only against the members of the SRT in their
individual capacities: Defendants C.L. Adkins, T.L. Berry,
R.J. Drake, S.T. Harper, J.K. Harris, J.D. Hensley, B.A.
Lowe, R.L. Mefford, M.L. Oglesby, and A.M. Whittington
(hereinafter “Defendants”). Defendants request
the entry of summary judgment on the due process § 1983
claim alleged in Count I because this claim is duplicative of
the excessive force claim raised in Count III. They further
assert qualified immunity as to Plaintiff's § 1983
claim for excessive force and analogous state law statutory
immunity as to her state constitutional claim.
Count I-Due Process § 1983 Claim
turning to the immunity question, the Court finds that
Plaintiff cannot proceed on both § 1983 claims because
they arise from the same core of operative facts. The Supreme
Court has held that “if a constitutional claim is
covered by a specific constitutional provision, such as the
Fourth or Eighth Amendment, the claim must be analyzed under
the standard appropriate to that specific provision, not
under the rubric of substantive due process.”
United States v. Lanier, 520 U.S. 259, 272 n. 7
(1997) (citing Graham v. Connor, 490 U.S. 386, 394
(1989)). In Graham, the Supreme Court held that
where an explicit textual source of constitutional protection
applies to physically intrusive government conduct,
“that Amendment, not the more generalized notion of
‘substantive due process, '” must be the
guidepost for analyzing the claim. 490 U.S. at 395.
Graham's guidance, the Court may not engage in a
separate substantive due process analysis where Plaintiff
alleges a Fourth Amendment claim arising from the same
abusive government conduct. See Krein v. W.Va. State
Police, No. 2:11-cv-00962, 2012 WL 2470015, at *6 (S.D.
W.Va. Jun. 27, 2012) (dismissing Fourteenth Amendment claim
because “the textually specific Fourth Amendment
protection preempts the more generalized substantive due
process protection”); see also Roska ex rel. Roska
v. Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003)
(turning to an analysis of substantive due process in
consideration of an excessive force claim only after finding
that the Fourth and Eighth Amendments did not apply);
Love v. Salinas, No. 2:11-cv-00361-MCE-CKD, 2013 WL
4012748, at *7 n. 5 (E.D. Ca. Aug. 6, 2013) (“Because
Plaintiff's ‘failure to protect' claim is based
on the Eighth Amendment, no separate discussion of
Plaintiff's substantive due process claim . . . is
necessary.”); Brothers v. Lawrence Cty. Prison
Bd., No. 06-1285, 2008 WL 146828, at *12 (W.D. Pa. Jan.
14, 2008) (finding an inmate did not state a cause of action
for substantive due process where alternative constitutional
amendments covered the conduct giving rise to his alleged
violations). Because Plaintiff's textually-specific
Fourth Amendment claim affords her decedent adequate
protection, Defendants are entitled to summary judgment on
the §1983 claim for violations of Mr. Kohler's
substantive and procedural due process rights.
Count III-Qualified Immunity on § 1983 Excessive Force
defense of “[q]ualified immunity shields a government
official from liability for civil monetary damages if the
officer's ‘conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'” Wiley v.
Doory, 14 F.3d 993, 995 (4th Cir. 1994) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Qualified immunity is more than immunity from liability; it
is “an entitlement not to stand trial or face the other
burdens of litigation.” Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). Thus, immunity is a threshold issue
which a court resolves before considering any proffered
substantive basis for summary judgment. Saucier v.
Katz, 533 U.S. 194, 200 (2001) (“Where [a]
defendant seeks qualified immunity, a ruling on that issue
should be made early in the proceedings so that the costs and
expenses of trial are avoided where the defense is
dispositive.”); see also Hutchison v. City of
Huntington, 479 S.E.2d 649 ( W.Va. 1996)) (“We
agree with the United States Supreme Court to the extent it
has encouraged, if not mandated, that claims of immunities,
where ripe for disposition, should be summarily decided
doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). The qualified immunity inquiry
involves a two-part test, whereby a court decides (1) whether
a constitutional right would have been violated on the facts
alleged, and (2) whether the right at issue was
“clearly established” at the time of
defendant's alleged misconduct). Hill v. Crum,
727 F.3d 312, 321 (4th Cir. 2013) (citing Orem v.
Rephann, 523 F.3d 442, 445 (4th Cir. 2008)). “The
answer to both . . . questions must be in the affirmative in
order for a plaintiff to defeat a motion for summary judgment
on qualified immunity grounds.” Henry v.
Purnell, 501 F.3d 374, 377 (4th Cir. 2007) (internal
quotation marks and citation omitted). “The plaintiff
bears the burden of proof on the first
question-i.e., whether a constitutional violation
occurred.” Id. (citing Bryant v.
Muth, 994 F.2d 1082, 1086 (4th Cir. 1993)). With regard
to the second question, Defendants concede that there is a
clearly established right under the Fourth Amendment to be
free from excessive force. Graham, 490 U.S. at 394;
accord Jones v. Buchanan, 325 F.3d 520, 527 (4th
Cir. 2003) (“The Fourth Amendment prohibition on
unreasonable seizures bars police officers from using
excessive force to seize a free citizen.” (citation
omitted)). Thus, the issue would appear to be whether or not
the force employed by Defendants against Mr. Kohler was
argument, however, takes a somewhat unexpected turn at this
juncture. In her response to the summary judgment motion,
Plaintiff clarifies that her excessive force claim centers
not on the shooting of Mr. Kohler, which she admits was
reasonable under the circumstances reported by the SRT, but
on the destruction of Mr. Kohler's property that
allegedly took place in the course of their gaining entrance
to the trailer. Relying on the presence of several bullet
holes in the aluminum trailer door, Plaintiff theorizes that
Defendants fired into Mr. Kohler's door with a shotgun
prior to, or perhaps in conjunction with, their other efforts
to force it open. It was the act of shooting the door in this
manner, Plaintiff claims, that constituted an unreasonable
use of force and provides the basis for the Fourth Amendment
of property that is excessive or unnecessary to effectuate
performance of a law enforcement's duties may violate the
Fourth Amendment. United States v. Ramirez, 523 U.S.
65, 66 (1998). Conversely, if a law enforcement officer is
justified in breaking into an apartment to effect an arrest,
the reasonable destruction of property in doing so is not a
constitutional violation. Id. at 71; compare
Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir. 1987)
(material issue of fact existed as to whether police officer,
who was justified in breaking in private dwelling to arrest a
fugitive, unnecessarily destroyed property in the course of
doing so) with Richardson v. Powel, No. 1:04cv874,
2007 WL 2985064, at *5 (E.D. Va. March 29, 2007) (granting
summary judgment where police caused only minor property
damage in forcing entry to effectuate arrest). As with all
excessive force analysis under the Fourth Amendment, the
standard is one of “objective reasonableness.”
Graham, 490 U.S. at 396. “[T]he question is
whether a reasonable officer in the same circumstances would
have concluded that a threat existed justifying the
particular use of force.” Anderson v. Russell,
247 F.3d 125, 129 (4th Cir. 2001) (citing Graham,
490 U.S. at 397).
the moving party, bear the initial burden of showing that no
genuine issue of material fact exists on the destruction of
property claim. In doing so, they pull evidence from a number
of sources. The first of these is the WVSP's Report of
Investigation, which provides a narrative summary of the
events surrounding the shooting. The report reads:
At approximately 0605 hours the aforementioned WVSP SRT
members arrived at 39 Maysel Ridge Road and staged on the
porch near the entry way. Senior Trooper J.K. Harris knocked
on the trailer door and announced “State Police Search
Warrant.” Sgt. T.L. Berry simultaneously announced
their presence and purpose as well by shouting “State
Police Search Warrant.” A reasonable amount of time had
elapsed and members heard shuffling inside the trailer and
visually saw a window air conditioner moving. Team members
[First] Sgt. R.L. Mefford and Senior Trooper J.K. Harris then
manually breached the door by utilizing a department issued
halligan tool and manual ram.
(R. of Investigation at 9.) There is no indication from the
report that Defendants shot into the door or at its hinges
prior to the breach. Defendants go on to demonstrate a lack
of any factual dispute by relying on the affidavit of First
Sergeant Mefford, a member of the SRT who participated in the
breach of the trailer door. Consistent with the Report of
Investigation, First Sergeant Mefford attests that Defendants
pried open Mr. Kohler's door with a mechanical ram and
Halligan tool and that “[n]o member of the team shot
Mr. Kohler's door or its hinges with a shotgun in an
effort to breach the door.” (Mefford Aff. at ¶
3-4, ECF No. 41-1 at 17.) First Sergeant Mefford adds that
neither he nor his comrades were carrying a shotgun that day.
(Id. at ¶ 5.)
also rely on the report of their ballistics expert, David
Balash. Mr. Balash independently disproves Plaintiff's
theory that the SRT shot through the trailer door while it
remained closed, either with a shotgun or with some other
weapon. Mr. Balash personally examined Mr. Kohler's
trailer door and the siding of the trailer and confirmed that
“[t]he white aluminum door displays multiple apparent
bullet strikes to the front (exterior) door.” (ECF No.
41-1 at 3.) Mr. Balash opined, however, that rather than
originating from the exterior of the door and traveling
inward, “[t]hese bullet strikes originate from the
inside of the door to the outside of the door[, ] and travel
from the door lock side of the door to the hinge side of the
door with bullet fragments and shrapnel continuing on
striking the siding of the trailer.” (Id.) He
described the bullet strikes as “characteristic of and
consistent with .223 Rem caliber fired bullet type of
damage.” (Id.) Given the trajectory of the
bullet strikes, Mr. Balash added that “this door had to
have been opened ([a]pproximately 90 degrees to the trailer
body) at the time.” (Id.) Mr. Balash found no
evidence that a shotgun was used to cause any of the damage
to the exterior or interior of the trailer, which he also
examined. (Id. at 3.) This report confirms
Defendants' account that the bullet strikes on the
trailer door and siding originated from a shooter standing at
the exterior of the trailer with the front door open-in other
words, after Defendants opened the door and encountered Mr.
met their initial burden to show the lack of any genuine
factual dispute on the destruction of property claim, it
becomes Plaintiff's task to show that a triable issue
remains. Plaintiff must do so by either by pointing to some
deficit in Defendants' evidence, which she has not done,
or by putting forward her own. Fed.R.Civ.P. 56(c)(1). In her
responsive briefing, Plaintiff claims that Defendants shot at
Mr. Kohler's door hinges and awoke Mr. Kohler, who then
armed himself to ward off the unknown assailants outside his
home. But there is no evidence that Mr. Kohler was asleep
when the police announced their presence, or that he remained
asleep as they continued to do so. A motion for summary
judgment cannot be defeated by mere speculation.
Ennis, 53 F.3d at 62. Plaintiff offers no evidence
supporting an inference that Mr. Kohler was asleep at the
time Defendants knocked on his door and announced their
presence. Plaintiff's concrete evidence in support of the
destruction of property claim is limited to the physical
damage to the trailer door and siding. However, Plaintiff
puts forward no expert testimony explaining whether this
damage could have originated from shots fired at the door
while it remained closed, and Mr. Balash's opinion to the
contrary therefore stands unrefuted.
from this physical evidence, Plaintiff draws on three sources
in an attempt to provide evidentiary support for her theory.
Each has been presented to the Court through the deposition
testimony of Danny Hicks, Plaintiff's husband. First,
Plaintiff relies on the secondhand account of certain
statements by Mr. Kohler's neighbor, Tom Beasley. Mr.
Hicks testified that both he and Plaintiff arrived at Mr.
Kohler's trailer for a visit on the evening following Mr.
Kohler's death. They were met upon arrival by Mr.
Beasley, who informed them of what had transpired. Mr.
Beasley had not witnessed the shooting, but reportedly told
Mr. Hicks that he heard two rounds of gunshots at
approximately 6 a.m. Mr. Hicks reported:
[Mr. Beasley] heard the first round of gunshots. He explained
to me that the first shots he heard sounded like a shotgun.
He said there was probably a 20-second pause, and there was
[sic] several shots fired, and he said you could tell the
difference, and it sounded like a rifle shot is what he said.
(Hicks Dep. 14:18-22.) In Plaintiff's view, Mr.
Beasley's recollection-at least as filtered through Mr.
Hicks-is proof that Defendants fired into the door before it
Plaintiff relies on statements attributed to Federal Bureau
of Investigation Special Agent Brent Stanze. Mr. Hicks
testified that approximately two years after the shooting, he
secured the assistance of Agent Stanze to conduct an
independent investigation into the circumstances surrounding
Mr. Kohler's death. Mr. Hicks traveled with Special Agent
Stanze to observe the state of the trailer. Mr. Hicks claimed
that Special Agent Stanze observed the damage to the exterior
of the trailer and remarked, without explanation, that the
incident could not have occurred as Defendants reported.
(Id. at 39:23-40:1.) Mr. Hicks testified that he led
Mr. Stanze inside the trailer, showing him “the bullet
holes through the walls and out the back of the trailer . . .
and seven to eight bullet holes straight down in the
floor.” (Id. at 39:22-40:1.) Mr. Hicks stated
that he later sent Special Agent Stanze the autopsy report at
his request, but that he never heard from Special Agent
Stanze again. (Id. at 40:3-13, 15.)
Plaintiff looks to Mr. Hicks' own observations of the
damage to the trailer, and the conclusions drawn therefrom,
for support. At his deposition, Mr. Hicks relayed his belief
that a shotgun was used to kill Mr. Kohler. He testified that
he persists in this belief although there is no evidence in
the autopsy report that a shotgun was employed in the
shooting. Mr. Hicks continued to explain that he went to Mr.
Kohler's trailer about three weeks following the shooting
to engage in what can only be described as a bit of amateur
sleuthing. Mr. Hicks stated that he observed what he believed
to be damage from shotgun pellets on the aluminum door and
exterior paneling of Mr. Kohler's trailer. (Id.
at 29:21-22.) Mr. Hicks cut off the door panel and delivered
it to his wife's attorney. (Id. at 30:17-18.)
Within the trailer, Mr. Hicks recovered what he initially
claimed was a “partial slug” that had been left
behind by law enforcement. (Id. at 31:19-20.) When
asked about the gauge, Mr. Hicks stated that he “would
assume it would probably be a .223, ” but continued,
“since I do not have no [sic] formal training, to what
a rifle or a -looks like. I couldn't tell you.”
(Id. at 31:23, 32:3-5.) Mr. Hicks also observed a
hole that he believed had been created by a slug fired from a
shotgun because, in his opinion, the hole was too large for a
.223 caliber bullet. (Id. at 47:3-4.)
these assertions embody admissible facts. Indeed, when
offered exclusively through the testimony of Mr. Hicks, the
statements of Mr. Beasley and Special Agent Stanze are
quintessential hearsay and cannot be used to support a motion
for summary judgment. Fed.R.Evid. 801; Greensboro
Professional Fire Fighters Ass'n, 64 F.3d at 967.
The Court may consider the content of these inadmissible
statements only where “‘the party submitting the
evidence shows that it will be possible to put the
information . . . into an admissible form.'”
Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015) (quoting
11 James Wm. Moore et al., Moore's Federal Practice
§ 56.91 (3d ed. 2015)). Plaintiff has not even made an
attempt to do so. Even if the alleged statements from Mr.
Beasley and Special Agent Stanze could be construed as
evidence supporting Plaintiff's destruction of property
theory,  the Court cannot consider them on summary
judgment without some proof that these individuals can affirm
the statements that Mr. Hicks attributes to them.
Hick's deposition testimony of his personal observations
has its own admissibility problems. Lay opinion testimony is
limited to the observations of a lay witness that are
“not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.”
Fed.R.Evid. 701. Mr. Hicks' opinions about the size of
the bullet that created the holes in the floor or the
significance of the pockmarked door fall into the realm of
expert testimony, but Plaintiff has given no indication that
Mr. Hicks possesses the specialized knowledge critical to
form them in such a way that would be useful to a jury. Mr.
Hicks conceded this point at his deposition, admitting that
he has no specialized knowledge, training, or experience in
ballistics. (Hicks Dep. at 50:4-7.) This deficit forecloses
his testimony about what type of gun could have produced the
damage on Mr. Kohler's door and siding, and within the
summation, Plaintiff has failed to come forward with concrete
evidence that Defendants destroyed Mr. Kohler's property
as claimed. After the speculation, hearsay statements, and
inadmissible lay opinion which the Court may not consider are
set aside, Plaintiff has nothing more than the physical
damage to the trailer to use in proving a constitutional
violation. And without some evidence supporting an inference
that the damage occurred as claimed, Defendants' evidence
to the contrary stands unopposed. In light of Plaintiff's
concessions that the shooting itself was reasonable, on one
hand, and her inability to support her factual assertions as
to any related destruction of property, on the other, the
Court finds that Defendants are entitled to qualified
immunity and grants summary judgment on the excessive force
Count II-West Virginia Constitutional Claim
II alleges a “state constitutional tort” under
Article III, Section 6 of the West Virginia Constitution. An
analog to the Fourth Amendment, this provision states that
“[t]he rights of the citizens to be secure in their
houses, persons, papers and effects, against unreasonable
searches and seizures, shall not be violated.” W.Va.
Const. art. III, § 6. Whether Article III of the West
Virginia Constitution gives rise to a private right of action
for money damages is a point of some dispute among the West
Virginia federal courts. See Harper v. Barbagallo, No.
2:14-cv-07529, 2016 WL 5419442, at *12 (S.D. W.Va. Sept. 27,
2016) (citing cases).
event, the Supreme Court of Appeals of West Virginia has
“traditionally construed Article III, section 6 in
harmony with the Fourth Amendment, ” State v.
Duvernoy, 195 S.E.2d 631, 634 ( W.Va. 1973), which means
that assuming a cause of action exists under Article III,
Section 6, the Fourth Amendment's “objective
reasonableness” standard would apply. See
Krein, 2015 WL 4527727 at *2 n. 1. Having already found
in the context of Plaintiff s federal claim that no material
issue of fact exists as to Plaintiffs excessive force claim,
the Court concludes that summary judgment is likewise
appropriate for Plaintiffs state constitutional claim.
foregoing reasons, the Motion for Summary Judgment is
GRANTED. (ECF No. 28.) The Court enters summary judgment in
favor of all Defendants and DISMISSES the Complaint, in its
entirety, with prejudice. The Court DIRECTS the Clerk to
remove this action from the docket of the Court.
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented party.
 The members of the SRT entry team, all
named as Defendants, included M.L. Oglesby, First Sergeant;
M.L. Mefford, First Sergeant; S.T. Harper, Sergeant; J.K.
Harris; B.A. Lowe; A.M. Whittington; R.J. Drake; and J.D.
 Plaintiff agrees that once Defendants
forced open the trailer door to find themselves staring down
the barrel of Mr. Kohler's rifle, “they . . . had
every right to defend themselves against Mr. Kohler.”
(Pl. Br. at 11, ECF No. 37.)
 It is worth clarifying the bounds of
Plaintiff's argument. Defendants claim, as will be set
forth below, that the bullets struck the trailer door in the
course of their firing at Mr. Kohler after the door had been
opened. Plaintiff does not argue that Defendants acted
unreasonably in allowing bullets intended for Mr. Kohler to
hit the trailer door. Plaintiff claims that an
unconstitutional destruction of property occurred only within
the confines of the facts as she perceives them, that is,
when Defendants allegedly shot at the trailer door prior to
forcing it open. She has not called upon the Court to
consider whether any erratic shooting on the part of
Defendants after they encountered Mr. Kohler would
constitute an unreasonable destruction of property.
 Even when viewed in the light most
favorable to Plaintiff, Mr. Beasley's alleged statements
about what he heard on the morning of the shooting have
limited value. Plaintiff's reliance on Special Agent
Stanze's alleged statement is even more objectionable.
Mr. Hicks testified that Special Agent Stanze looked at the
damage to the trailer and remarked that “[the shooting]
couldn't have happened that way.” (Hicks. Dep. at
39:2-3.) But Special Agent Stanze apparently did not clarify
his remarks, and one can only speculate how he believes the
shooting occurred, if, in fact, he actually believes that the
circumstances differed from those recounted by
 For purposes of this case, the Court
assumes, without deciding, that such a state constitutional