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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
UNITED STATES OF AMERICA,
Plaintiff,
v.

Criminal Action No. 3:19-CR-29
(GROH)

MICHAEL KENNEDY,
Defendant.
UNITED STATES’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Now comes the United States of America, by William J. Powell, United States Attorney
for the Northern District of West Virginia, by Jarod J. Douglas, Assistant United States Attorney,
and Department of Justice Trial Attorney Christine M. Siscaretti, and presents its Proposed
Findings of Fact and Conclusions of Law. As supported by the testimony and evidence adduced
at trial, the government respectfully requests that this Court adopt these Proposed Findings of Fact
and Conclusions of Law, and render a verdict of guilty.
STATEMENT OF THE CASE
1.

On March 20, 2019, the Grand Jury for the Northern District of West Virginia filed

an Indictment charging defendant MICHAEL KENNEDY with one count of Deprivation of Rights
under Color of Law, in violation of 18 U.S.C. § 242.
2.

Specifically, the Indictment alleges that on or about November 19, 2018, in

Berkeley County, West Virginia, within the Northern District of West Virginia, the defendant,
while acting under color of law, physically assaulted J.H., a person known to the Grand Jury,

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during his arrest, and thereby willfully deprived J.H. of the right, secured and protected by the
Constitution and laws of the United States, to be free from unreasonable seizures, which includes
the right to be free from the use of unreasonable force by one acting under color of law. Further,
the Indictment charges that, as a result of the defendant’s actions, J.H. suffered bodily injury.
FINDINGS OF FACT
I.

The Defendant’s Background and Training
3.

On November 19, 2018, the defendant was employed as a West Virginia state

trooper. Testimony of Ryan Kolb, p. 26, ll. 16 – 20, p. 28, ll. 12 – 16; Austin Ennis, p. 94, l. 21
– p. 95, l. 4; David Ritchie, p. 140, ll. 4 – 10; Derek Walker, p. 169, ll. 1 – 6, 19 – 22, p. 170, ll. 5
– 10; Government Exhibit 3 (Dashboard Camera Video from Cruiser of Berkeley County Sheriff’s
Office Deputy David Ritchie, November 18 – 19, 2018, Clip from 1:55 to 5:10); and Government
Exhibit 8 (Dashboard Camera Video from Cruiser of Berkeley County Sheriff’s Office Deputy
Christopher Merson).
4.

Before becoming a state trooper, the defendant attended the West Virginia State

Police Academy, a twenty-five week residential training program, from November 2011 through
May 2012. Testimony of David Lee, p. 64, ll. 10 – 15; p.65, l. 25.
5.

At the academy, the defendant received lessons on numerous topics, including

criminal law, defensive tactics, police ethics, search and seizure, and the appropriate use of force
by law enforcement officers. Testimony of David Lee, p. 66, l. 24 – p. 67, l. 4.
6.

Academy trainers taught these lessons through a combination of methods, including

lecture, written exams, skills testing, and simulations. Testimony of Lee, p. 66, ll. 6 – 20; p. 67,
ll. 18 – 24; p. 67, l. 25 – p. 68, l. 4.
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7.

Specifically, the defendant was taught at the training academy that the Fourth

Amendment covers the use of force during any seizure. Testimony of David Lee, p. 70, ll. 9 –
12; Exhibit 6, p. 7.
8.

The defendant was also instructed at the academy that any force used during a

seizure had to be objectively reasonable. Testimony of David Lee, p. 70, l. 13 – p. 71, l. 2;
Government Exhibit 6, p. 12.
9.

The defendant was instructed that he could be held liable under federal law if he

used force that was unreasonable. Testimony of David Lee, p. 73, ll. 9 – 22; Government Exhibit
6, p. 30.
10.

In determining what level of force was objectively reasonable under any given

circumstances, the defendant was taught during his law enforcement training to weigh numerous
factors, including: a subject’s age; a subject’s size and physical capabilities, particularly in
comparison to an officer’s size and physical capabilities; and the number of subjects in comparison
to the number of officers. Testimony of David Lee, p. 76, l. 3 – p. 78, l. 13; Government Exhibit
6, p. 65.
11.

The defendant was advised during his law enforcement training that a subject who

was particularly young could be less of a threat. Testimony of David Lee, p. 77, ll. 4 – 6.
12.

The defendant was also taught that, if multiple officers were involved in a situation,

less force may be needed. Testimony of David Lee, p. 78, ll. 8 – 9.
13.

The defendant was taught that, in determining whether force was reasonable, he

should not make the decision to use force based on emotions such as anger. Testimony of David
Lee, p. 78, l. 19 – p. 79, l. 15.
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14.

The defendant was instructed at the academy that, even if an officer were angry at

a subject because that subject had attacked another officer, that anger was not relevant to the
officer’s analysis of whether force was reasonable and necessary in a given situation. Testimony
of David Lee, p. 79, ll. 17 – 20; Government Exhibit 6, p. 17.
15.

The defendant was instructed that a pain compliance technique is something that

could be utilized to cause a subject to suffer pain in order to gain compliance. These pain
compliance techniques could include closed-fist strikes. Testimony of David Lee, p. 71, ll. 8 –
24.
16.

At the police training academy, the defendant was taught that pain compliance

techniques could be considered excessive force depending on the circumstances in which they
were used. Specifically, the defendant was taught that pain compliance techniques that were used
before a subject posed any immediate threat to an officer could be considered excessive force.
Testimony of David Lee, p. 71, l. 25 – p. 72, l. 19; Government Exhibit 6, p. 22.
17.

The defendant successfully completed his training at the West Virginia State Police

Academy. Testimony of David Lee, p. 79, l. 24 – p. 80, l. 3.
18.

Trooper Derek Walker participated in the same state police training academy

session as the defendant. Testimony of Derek Walker, p. 168, ll. 20 – 22.
II.

The Events of November 19, 2018
19.

At approximately midnight on November 19, 2018, the defendant was on-duty as a

state trooper, in uniform, and responding to a radio run at a bar called Jack Rabbit’s in Martinsburg.
Testimony of Ryan Kolb, p. 26, ll. 16 – 20, p. 28, ll. 12 – 16; Austin Ennis, p. 94, l. 21 – p. 95, l.
4; David Ritchie, p. 140, ll. 4 – 10; Derek Walker, p. 169, ll. 1 – 6, 19 – 22, p. 170, ll. 5 – 10;
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Government Exhibit 3 (Dashboard Camera Video from Cruiser of Berkeley County Sheriff’s
Office Deputy David Ritchie, November 18 – 19, 2018, Clip from 1:55 to 5:10).
20.

Other law enforcement officers, including State Trooper Derek Walker, and

Berkeley County Sheriff’s Deputies Ryan Kolb, Austin Ennis, David Ritchie, and Christopher
Merson also responded to the radio call at Jack Rabbit’s. See id.
21.

Deputy Merson responded to Jack Rabbit’s in a black Ford Taurus, which did not

have a police light bar on top of it. Testimony of Austin Ennis, p. 94, ll. 14 – 20; Derek Walker,
p. 171, ll. 13 – 20.
22.

Deputy Merson’s car was identified as a police vehicle in “ghost” lettering that was

only visible when light hit it at a certain angle; if light was not shining on it, then the car appeared
to be a plain black Ford Taurus. Testimony of Derek Walker, p. 171, l. 21 – p. 172, l. 4.
23.

As Deputy Merson slowed his car on Route 11, in preparation to turn into the Jack

Rabbit’s parking lot, he was rear-ended by a silver car driven by sixteen-year-old J.H. Testimony
of Luther Edward Brown, p. 11, ll. 18 – 21; Ryan Kolb, p. 28, ll. 17 – 22; Derek Walker, p. 172,
ll. 7 – 15; Government Exhibit 2, 0:00 – 0:02.
24.

Deputy Merson pulled off the road and activated the police lights that were inside

his car. Testimony of Derek Walker, p. 172, ll. 24 – 25; Government Exhibit 2, 0:02 – 0:15.
25.

The silver car then backed up, drove around Deputy Merson’s vehicle, and took off

at a high rate of speed down Route 11. Testimony of Derek Walker, p. 173, ll. 1 – 6; Government
Exhibit 2, 0:15 – 0:20.
26.

Deputy Merson began to pursue the civilian car in his vehicle, and was soon

followed by Trooper Walker, Trooper Kennedy, Deputy Ennis, and Deputy Kolb. Testimony of
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Ryan Kolb, p. 29, ll. 4 – 8; Austin Ennis, p. 96, ll. 6 – 9; Derek Walker, p. 173, ll. 17 – 23;
Government Exhibit 2, 0:20.
27.

The vehicular pursuit lasted approximately 90 seconds, ending when the civilian

car, driven by J.H., spun out of control, hit a utility pole, and rolled, causing several explosions.
Testimony of Derek Walker, p. 174, l. 21 – p. 175, l. 20; Government Exhibit 2, 0:20 – 1:50.
28.

As a result of the accident, J.H.’s silver car appeared “totaled” and “mangled.”

Testimony of Ryan Kolb, p. 31, ll. 15 – 16; Government Exhibit 8.
29.

Deputy Merson approached J.H.’s car first, followed by Trooper Walker.

Testimony of Derek Walker, p. 184, l. 22 – p. 185, l. 11; Government Exhibit 8, 0:05 – 0:10 .
30.

Through the smoke coming from the wrecked car, Trooper Walker observed J.H.

in the driver’s seat, and saw that J.H. had no obvious injuries; was not moving; did not appear to
have anything in his hands; and that J.H. was conscious and staring at Deputy Merson and Trooper
Walker, but J.H. did not respond to the officers’ commands. Testimony of Derek Walker, p. 185,
l. 24 – p. 187, l. 9.
31.

J.H. was sixteen years old at the time of the pursuit and accident, and was small in

stature. Testimony of Luther Edward Brown, p. 9, ll. 21 – 22, p. 11, ll. 18 – 21; Ryan Kolb, p.
31, ll. 20 – 22.
32.

Deputy Merson banged on the driver’s side window repeatedly with his fist and

baton, breaking the window. Testimony of Derek Walker, p. 187, ll. 13 – 15; Government Exhibit
8, 0:19 – 0:24.

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III.

The Initial Takedown
33.

Deputy Merson and Trooper Walker reached into the vehicle and grabbed J.H.

The defendant arrived on the scene as Deputy Merson and Trooper Walker pulled J.H. through the
broken driver’s side window and took him to the ground. Testimony of Derek Walker, p. 188, ll.
2 – 9; Government Exhibit 8, 0:19 – 0:24.
34.

Deputy Ennis arrived on scene when J.H. was lying, face-down, on the ground.

Government Exhibit 8, 0:33.
35.

The officers gave J.H. orders to give up his hands, or words to that effect.

Testimony of Austin Ennis, p. 104, ll. 6 – 22.
36.

Deputy Ennis knelt down by J.H.’s head; Deputy Merson knelt down on J.H.’s

left side; Trooper Walker stayed on J.H.’s right side; and the defendant stood near J.H.’s legs.
Testimony of Austin Ennis, p. 105, ll. 3 – 8, p. 107, ll. 24 – 25; Derek Walker, p. 189, ll. 20 – 25,
p. 191, ll. 7 – 8; Government Exhibit 8, 0:40 – 0:44.
37.

As the four officers surrounded him, J.H. tensed his body up and tucked his hands

underneath his body. Testimony of Austin Ennis, p. 106, ll. 9 – 12, 19 – 24; Derek Walker, p.
189, ll. 3 – 4, p. 190, ll. 2 – 8.
38.

J.H. also covered his face with his hands at times, as if to protect himself.

Government Exhibit 8, 0:34 – 0:44.
39.

At no time during the takedown did J.H. attempt to strike or attack the officers.

Testimony of Austin Ennis, p. 106, ll. 19 – 22; Derek Walker, p. 190, ll. 9 – 13; Government
Exhibit 8, 0:24 – 0:57.

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40.

Deputy Ennis executed closed-hand strikes to J.H. in order to secure J.H.’s hand,

which was still tucked under his body. Testimony of Austin Ennis, p. 106, ll. 5 – 18, Government
Exhibit 8, 0:40 – 0:44.
41.

Similarly, Trooper Walker focused on trying to get a hold of J.H.’s arm to put it

behind his back and handcuff J.H. Testimony of Derek Walker, p. 190, ll. 2 – 3, p. 191, ll. 2 – 3,
Government Exhibit 8, 0:35 – 0:45.
42.

While Trooper Walker and Deputies Merson and Ennis focused on J.H.’s hands

and head in order to handcuff J.H., the defendant drew back his right leg and forcefully kicked
J.H.’s lower body. The defendant drew his leg back and kicked J.H. at least two more times.
Testimony of Derek Walker, p. 191, ll. 7 – 10; Government Exhibit 8, 0:40 – 0:44.
43.

The defendant then bent his right leg and stomped down on J.H.’s lower body at

least two times. Testimony of Derek Walker, p. 191, ll. 14 – 18; Government Exhibit 8, 0:44 –
0:46.
44.

Trooper Walker gained control of J.H.’s hands, and all of the other officers,

including the defendant and Deputies Merson and Ennis stepped away from J.H. Testimony of
Derek Walker, p. 191, l. 19 – p. 192, l. 23; Government Exhibit 8, 0:57.
45.

At the time that the defendant and Deputies Merson and Ennis stepped away, J.H.

was lying face-down on the ground, with his arms behind his back. Trooper Walker had his hands
on J.H.’s hands. Testimony of Derek Walker, p. 191, l. 19 – p. 192, l. 23; Government Exhibit 8,
0:57.
46.

When Deputy Ennis stepped away, he thought that J.H. was under control.

Testimony of Austin Ennis, p. 110, ll. 2 – 4.
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47.

After Deputy Ennis stepped away from J.H., he did not use any other force against

J.H. Government Exhibit 8, 0:52 – 2:22.
48.

After Deputy Merson stepped away from J.H., he did not use any other force against

J.H. Government Exhibit 8, 0:52 – 2:22.
IV.

The Handcuffing
49.

When Deputy Merson stepped away from J.H., he began to complain to the other

officers, including the defendant, about feeling pain in his back. Testimony of Austin Ennis, p.
108, l. 21 – p. 109, l. 7; David Ritchie, p. 152, ll. 12 – 18; Government Exhibit 8, 0:54 – 0:57.
50.

A fifth officer, Deputy David Ritchie, arrived on the scene, and he observed that

the defendant and Deputies Ennis and Merson were walking away from J.H., who was lying facedown on the ground with his hands behind his back. Based on his observations of J.H., Deputy
Ritchie did not believe that his assistance with J.H. was needed. Testimony of David Ritchie, p.
151, l. 25 – p. 152, l. 5; Government Exhibit 8, 0:58.
51.

After Deputy Merson complained about pain in his back, the defendant walked back

over to J.H., who was still lying face-down on the ground with his hands behind his back while
Trooper Walker had his hands on J.H.’s hands. The defendant put his knee on J.H.’s back.
Government Exhibit 8, 0:57 – 1:00.
52.

On the video, J.H. appeared at this point to have a laceration to the left side of his

face, which was bleeding. Government Exhibit 8, 1:04 – 1:05.
53.

As the defendant knelt on J.H., Trooper Walker had both of J.H.’s hands in his right

hand and got his handcuffs out with his left hand. J.H. pulled his right hand out of Trooper
Walker’s grip. Trooper Walker reached up, grabbed J.H.’s right hand, and pulled it back into
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cuffing position. J.H. continued to feel tense and moved his right arm again. Testimony of
Derek Walker, p. 194, l. 12 – p. 195, l. 8; Government Exhibit 8, 0:57 – 1:07.
54.

After J.H. moved his right arm, the defendant leaned his hand on the right side of

J.H.’s face, pushing the left side of J.H.’s already injured, bleeding face into the ground, and then
forcefully struck J.H. five times with a closed fist about the upper back. Government Exhibit 8,
1:05 – 1:12.
55.

Deputy Ennis saw the defendant striking J.H., and he walked back and stood next

to J.H. to see if the other officers needed his assistance. Testimony of Austin Ennis, p. 111, l. 18
– p. 112, l. 8; Government Exhibit 8, 1:08 – 1:18.
56.

Deputy Ennis saw no resistance from J.H. Deputy Ennis did not use force against

J.H. While the defendant repeatedly punched J.H. in the back, Deputy Ennis saw no reason to
use force against J.H. Testimony of Austin Ennis, p. 111, l. 21 – p. 112, l. 2; Government Exhibit
8, 1:08 – 1:18.
57.

J.H. then moved his arm, and the defendant reached back and gave J.H.’s arm to

Trooper Walker. Trooper Walker continued to handcuff J.H. Testimony of Derek Walker, p.
196, ll. 2 – 14; Government Exhibit 8, 1:12.
58.

While Trooper Walker had control of J.H.’s hands and was in the process of

handcuffing J.H., the defendant continued to push the left side of J.H.’s cut, bleeding face into the
ground. The defendant then forcefully struck J.H. about the upper body with a closed fist three
more times. Testimony of Derek Walker, p. 196, ll. 15 – 23; Government Exhibit 8, 1:14 – 1:17.
59.

Trooper Walker described these strikes as “compliance” strikes, meaning strikes

that were designed to deliver pain. Testimony of Derek Walker, p. 206, ll. 9 – 16.
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60.

Deputy Ennis was standing next to J.H. at the time of the defendant’s last three

closed-fist “compliance” strikes. Deputy Ennis saw no reason for the defendant to strike J.H.
Testimony of Austin Ennis, p. 112, ll. 2 – 5; Government Exhibit 8, 1:13 – 1:15.
61.

Deputy Ritchie was assisting Deputy Merson when he saw the defendant strike J.H.

Deputy Ritchie saw a sudden movement from J.H., but otherwise saw no need to assist the officers
with J.H. or to walk over to J.H. and the other officers. Testimony of David Ritchie, p. 153, ll. 4
– 15; Government Exhibit 8, 1:13 – 1:15.
62.

Other than reaching up to grab J.H.’s right hand and handcuffing J.H., Trooper

Walker used no other force against J.H. during the handcuffing process. Government Exhibit 8,
0:54 – 1:19.
V.

The Toss of J.H. While Handcuffed
63.

After he handcuffed J.H., Trooper Walker went to stand J.H. up to put him in a

police cruiser. As Trooper Walker picked J.H. up, J.H. tensed and jerked. Trooper Walker lost
his balance and fell. Testimony of Derek Walker, p. 197, ll. 7 – 11; Government Exhibit 8, 1:19
– 1:22.
64.

Trooper Walker turned and walked away from J.H. because he was upset.

Testimony of Derek Walker, p. 199, ll. 13 – 15; Government Exhibit 8, 1:22 – 1:30.
65.

The defendant reached down and picked up the handcuffed J.H. by the front of his

shirt, and spoke to him in a raised voice as he lifted J.H. off the ground, and held J.H.’s face close
to his face. Testimony of Austin Ennis, p. 113, l. 14 – p. 114, l. 6; Government Exhibit 8, 1:22 –
1:26.
66.

The defendant walked several steps while continuing to hold J.H. by the shirt,
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lifting his feet off the ground and causing J.H.’s pants to fall around his ankles. Government
Exhibit 8, 1:26 – 1:28.
67.

Using both hands, the defendant then forcefully extended both arms and tossed J.H.

down to the ground.

J.H., whose hands were cuffed behind him, landed flat on his back.

Testimony of Austin Ennis, p. 115, ll. 8 – 10; Government Exhibit 8, 1:28 – 1:30.
68.

Deputy Ennis saw the defendant toss J.H. to the ground. Deputy Ennis saw no

reason for the defendant to toss J.H., and Ennis had never been trained to toss a handcuffed
individual down on his back. Testimony of Austin Ennis, p. 115, ll. 11 – 16, Government Exhibit
8, 1:28 – 1:30.
69.

Deputy Ennis looked at J.H. as he was lying on the ground and saw that he was not

resisting or even moving. Testimony of Austin Ennis, p. 116, ll. 17 – 22. Government Exhibit
8, 1:31 – 1:32.
VI.

The Strikes at the “Snow Bank”
70.

The defendant decided to move J.H., and Deputy Ennis assisted him. Testimony

of Austin Ennis, p. 117, ll. 12 – 17; Government Exhibit 8, 2:07 – 2:14.
71.

As the defendant and Deputy Ennis moved J.H., the defendant said, “This is a good

spot for him,” and then dropped J.H. down on a snow bank on the side of Route 11. Testimony
of Austin Ennis, p. 117, ll. 17 – 24; Government Exhibit 4, 0:01 – 0:04.
72.

After dropping J.H., who was still handcuffed, on the snow bank, the defendant

leaned down and pulled J.H.’s face up near his face. While speaking to him in a loud, angry tone,
the defendant told J.H., in sum and substance, that he could have hurt or paralyzed Deputy Merson.
Testimony of Ryan Kolb, p. 39, ll. 1 – 3, p. 40, ll. 7 – 11; Austin Ennis, p. 120, ll. 9 – 22,
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Government Exhibit 4.
73.

The defendant then hit J.H. in the face with an open hand multiple times. Testimony

of Ryan Kolb, p. 40, ll. 17 – 24; Austin Ennis, p. 121, ll. 8 – 20; Government Exhibit 4.
74.

After seeing the defendant strike J.H. in the face multiple times, Deputy Kolb

observed a drop of blood on the defendant’s face. The defendant did not have any cuts or injuries
on his face. J.H., however, had lacerations and was bleeding about his face. Testimony of Ryan
Kolb, p. 41, ll. 6 – 19; Government Exhibit 4, 8.
75.

Deputy Kolb had an unobstructed view as the defendant struck the victim in the

face at the snow bank. Deputy Kolb did not think that J.H. was a threat, and he saw no reason for
the defendant to strike J.H. Testimony of Ryan Kolb, p. 40, l. 25 – p. 41, l. 5.
76.

Deputy Kolb saw no reason to use force against J.H., and he did not use force

against him. Testimony of Ryan Kolb, p. 45, ll. 5 – 8.
77.

Deputy Ennis would not have used the level of force the defendant used against

J.H. at the snow bank, and indeed, Deputy Ennis did not use any force against J.H. at the snow
bank. Testimony of Austin Ennis, p. 121, ll. 8 – 20, p. 122, ll. 19 – 22, p. 123, ll. 14 – 15.
78.

No other officer except the defendant used any force against J.H. at the snow bank.

Testimony of Ryan Kolb, p. 44, l. 22 – p. 45, l. 4; Austin Ennis, p. 123, ll. 16 – 17.
79.

No other officer except the defendant used any force against J.H. after J.H. was

handcuffed. Testimony of Austin Ennis, p. 123, ll. 19 – 22.
VI.

Medical Treatment of J.H.
80.

Paramedic Luther Edward Brown responded to the scene on November 19, 2018

and provided medical treatment to J.H. Testimony of Luther Edward Brown, p. 8, ll. 18 – 22, p.
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11, ll. 22 – 24.
81.

For purposes of medical treatment and diagnosis, J.H. informed Brown that he had

been in a car accident and that he had been tossed to the ground. Testimony of Luther Edward
Brown, p. 9, l. 23 – p. 10, l. 15, p. 12, ll. 7 – 17.
82.

For purposes of medical treatment and diagnosis, J.H. told Brown that he had a

headache and he complained that his handcuffs were too tight. Testimony of Luther Edward
Brown, p. 12, ll. 7 – 1 17.
83.

Brown also observed bleeding on J.H.’s face, and contusions on J.H.’s left hip and

elbow. Testimony of Luther Edward Brown, p. 9, l. 25, 11, ll. 14 – 15.
VII.
84.

Discovery of Videos
About a week later, Berkeley County Sheriff’s Office Captain Wilbur Johnson, who

had thirty-five years of law enforcement experience, was working on his crash report, and he
obtained video from Deputy David Ritchie’s car. Testimony of Wilbur Johnson, p. 214, ll. 3 – 4,
p. 218, l. 18 – p. 219, l. 8.
85.

As he reviewed the Ritchie video (in evidence as Government Exhibit 3), Captain

Johnson thought that it appeared that the video depicted something on the ground that officers
were striking. Testimony of Wilbur Johnson, p. 221, ll. 9 – 12. Captain Johnson thought that it
looked like a big bag of garbage had been tossed to the ground, and something told him that it was
not right. Testimony of Wilbur Johnson, p. 222, ll. 2 – 9.
86.

After making these observations, Captain Johnson paused the video and notified

the Sheriff. Testimony of Wilbur Johnson, p. 221, ll. 13 – 20.
87.

Captain Johnson also obtained video from Deputy Merson’s dashboard camera.
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Upon watching the Merson video, Captain Johnson immediately stopped the video and notified
the Sheriff because he needed to let his supervisor know what he was seeing. Testimony of
Wilbur Johnson, p. 223, ll. 5 – 13.
CONCLUSIONS OF LAW
88.

In order for the Court to find the defendant guilty of Count One of the Indictment,

the government must prove, beyond a reasonable doubt, that the defendant: 1) acted under color
of law; 2) deprived the victim, J.H., of a right secured or protected by the Constitution or laws of
the United States; and 3) acted willfully. 18 U.S.C. § 242; United States v. Lanier, 520 U.S. 259,
264 (1997) (“Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1)
willfully and (2) under color of law (3) to deprive a person of rights protected by the Constitution
or laws of the United States.”) (internal citations omitted); Screws v. United States, 325 U.S. 91
(1945) (identifying the elements of an 18 U.S.C. § 242 offense); United States v. Cowden, 882 F.
3d 464, 474 (4th Cir. 2018) (“To obtain a conviction for deprivation of rights under color of law
in violation of 18 U.S.C. § 242, the government must show that the defendant (1) willfully (2)
deprived another individual of a constitutional right (3) while acting under color of law”) (internal
citation omitted); United States v. Mohr, 318 F.3d 613, 618 – 19 (4th Cir. 2003) (“[T]o demonstrate
a violation of § 242, the government had to establish, inter alia, that [the defendant] acted (1)
willfully . . . (2) under color of law, (3) to deprive [the victim] of a right protected by the
Constitution of the United States.”) (internal quotation and citation omitted).
89.

In order for the Court to find the defendant guilty of a felony violation of 18 U.S.C.

§ 242, the government also must prove that J.H. suffered bodily injury as a result of the defendant’s
actions. 18 U.S.C. § 242; United States v. Perkins, 470 F.3d 150, 160 – 61 (4th Cir. 2006) (“To
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be convicted of a felony under 18 U.S.C.A. § 242, the Government must prove that the defendant
willfully subjected a person to the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States, and bodily injury resulted from such
deprivation.”) (internal quotation and citation omitted). Pain alone is sufficient to establish this
element. Perkins, 470 F.3d at 161 (“Physical pain alone or any injury to the body, no matter how
fleeting, suffices” to establish bodily injury.)
I.

Color of Law

90.

The first element the government must prove with respect to Count One is that the

defendant acted under color of law. A person acts under color of law if he is an official or
employee of a federal, state, or local government and he uses or abuses power he possesses because
of his official position. A government official, such as a state trooper, acts “under color of law”
if he is performing his official duties, purporting to perform those duties, or giving the appearance
of performing such official duties, even if he misuses or abuses his official authority by doing
something the law forbids. In other words, if a state trooper misuses the power, invested in him
by the law, to deprive someone of his rights, his actions are taken under color of law. Ruschky,
Pattern Jury Instructions for Federal Criminal Cases, District of South Carolina § III (modified);
West v. Atkins, 487 U.S. 42, 49 – 50 (1988) (“It is firmly established that a defendant . . . acts under
color of state law when he abuses the position given to him by the State. Thus, generally, a public
employee acts under color of state law while acting in his official capacity or while exercising his
responsibilities pursuant to state law.”) (internal citation omitted); Griffin v. Maryland, 378 U.S.
130, 135 (1964) (“If an individual is possessed of state authority and purports to act under that
authority, his action is state action. It is irrelevant that . . . the particular action which he took was
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not authorized by state law.”) (internal citation omitted); Screws v. United States, 325 U.S. 91, 111
(1945) (“It is clear that under ‘color’ of law means under ‘pretense’ of law . . . . Acts of officers
who undertake to perform their official duties are included whether they hew to the line of their
authority or overstep it.”); Jennings v. University of North Carolina, 482 F.3d 686, 701 (4th Cir.
2007) (“State employment is generally sufficient to render the defendant a state actor, and a
defendant necessarily acts under color of state law when he abuses the position given to him by
the State.”) (internal quotations and citations omitted); United States. v. Ramey, 336 F.2d 512, 515
(4th Cir. 1964) (“Under 18 U.S.C. § 242, ‘color of law’ includes misuse of power possessed by
virtue of State law and made possible only because the wrongdoer is clothed with authority of
State law.”) (internal citations omitted).
91.

Here, the defendant was representing West Virginia as a state trooper. He was in

uniform, on duty, and responding to a radio call when he joined the pursuit of J.H. The evidence
proves beyond a reasonable doubt that the defendant was acting under color of law that night.
Testimony of Ryan Kolb, p. 26, ll. 16 – 20, p. 28, ll. 12 – 16; Austin Ennis, p. 94, l. 21 – p. 95, l.
4; David Ritchie, p. 140, ll. 4 – 10; Derek Walker, p. 169, ll. 1 – 6, 19 – 22, p. 170, ll. 5 – 10;
Government Exhibit 3 (Dashboard Camera Video from Cruiser of Berkeley County Sheriff’s
Office Deputy David Ritchie, November 18 – 19, 2018, Clip from 1:55 to 5:10); and Government
Exhibit 8 (Dashboard Camera Video from Cruiser of Berkeley County Sheriff’s Office Deputy
Christopher Merson).
II.

The Deprivation of Right

92.

In the case before this Court, the right at issue is J.H.’s right to be free from

unreasonable seizures, which includes the right to be free from the use of unreasonable force by
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one acting under color of law. Indictment. [Docket No. 3:19-CR-29.]
93.

The test for determining whether a use of force was reasonable is an objective one,

meaning that the Court should consider all of the facts and circumstances from the point of view
of an ordinary and reasonable officer in the same position as the defendant. In determining the
reasonableness or the unreasonableness of force used, the Court may consider, among other
factors, the severity of the crime, if any, committed by J.H.; the extent, if any, to which J.H. posed
an imminent threat to the safety of the defendant or to any other person; the extent, if any, to which
J.H. was physically resisting arrest or attempting to flee at the time force was used; and the extent
of injuries, if any, suffered by J.H. 18 U.S.C. § 242; Saucier v. Katz, 533 U.S. 194, 202 (2001)
(holding that “a use of force is contrary to the Fourth Amendment if it is excessive under objective
standards of reasonableness”); Graham v. Connor, 490 U.S. 386, 393, 396 – 97 (1989) (explaining
that the Fourth Amendment governs an arrestee’s excessive force claim and holding that
reasonableness must be judged from perspective of reasonable officer on the scene, and noting that
“proper application requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight”); Hupp v. Cook, 931 F.3d 307, 321 – 22 (4th Cir. 2019) (holding that, in analyzing
a Fourth Amendment excessive force case “we ask whether a reasonable officer in the same
circumstances would have concluded that a threat existed justifying the particular use of force. In
answering this question, we consider several factors, including the severity of the crime at issue,
whether the suspect posed an immediate threat to the safety of the officers or others, and whether
the suspect was actively resisting arrest or attempting to evade arrest by flight. We also consider

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the extent of the plaintiff’s injuries.”) (internal citations, quotations, and alterations omitted);
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (holding that the Fourth Amendment’s
prohibition on unreasonable seizures includes the right to be free of seizures effectuated by
excessive force and that whether an officer has used excessive force should be analyzed under a
standard of objective reasonableness) (internal quotations and citations omitted); Schultz v. Braga,
455 F.3d 470, 476 (4th Cir. 2006) (holding that Fourth Amendment claims should be analyzed
under an objective reasonableness standard) (internal quotation and citation omitted).
94.

In determining the reasonableness or the unreasonableness of force used, the Court

may consider that an officer may not use force solely to punish, retaliate against, or seek retribution
against another person, and that force that is objectively reasonable at the beginning of an
encounter may not be justified – even seconds later – if the objective justification for the initial
use of force has been eliminated. Meyers v. Baltimore County, Md., 713 F.3d 723, 733 (4th Cir.
2013) (finding that “force justified at the beginning of an encounter is not justified even seconds
later if the justification for the initial force has been eliminated.”) (internal quotation and citation
omitted); United States v. Aguilar, 242 Fed.Appx. 239, 243 (5th Cir. 2007) (affirming jury
instruction in a use of force case that included instruction that officers “may not use force to punish,
retaliate or seek retribution against a person who has been arrested.”).
95.

In the case at issue, the Court need only find that the defendant engaged in one

unreasonable use of force. The government, however, has proven that the defendant engaged in
four different uses of force that were each unreasonable.

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96.

The government has proved that the defendant’s use of force during the initial

takedown of J.H. was unreasonable because it far exceeded the force that was reasonably necessary
to subdue J.H. and place him under arrest. Specifically, the defendant acted unreasonably when
he repeatedly kicked and stomped on the small, sixteen-year-old J.H., while J.H. was lying facedown on the ground with his hands tucked underneath him and was surrounded by four law
enforcement officers.
97.

No other officer kicked or stomped on J.H. during the initial takedown.

98.

The government has proved that the defendant engaged in another unreasonable

use of force during the handcuffing of J.H. when he pushed J.H.’s already-injured face into the
ground and forcefully struck J.H. eight times with a closed fist about the upper body.
99.

At the time the defendant struck J.H., J.H. was lying face-down on the ground, with

his hands behind his back. Trooper Walker had his hands on the teenager’s hands, and Trooper
Walker handcuffed J.H. without delivering any strikes to J.H. Trooper Walker did not identify a
reason to strike J.H. at that point in time.
100.

Deputy Ennis saw the defendant begin to strike J.H., and he approached J.H. to see

if his assistance was needed. Deputy Ennis saw no resistance from J.H. at the time that the
defendant was striking J.H., and he saw no reason for the defendant to strike J.H. Deputy Ennis
did not use any force against J.H. during the handcuffing process.
101.

The government also proved beyond a reasonable doubt that the defendant engaged

in another unreasonable use of force against J.H. when he picked the sixteen-year-old up by the
shirt, lifted him off the ground, and forcefully tossed him with both hands. J.H. landed on his

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back, on top of his tightly handcuffed hands. No officer offered a justification for this use of
force. 1
102.

As seen on Government Exhibit 8, J.H. was not a physical threat to the defendant

or any other officer at the time of the toss. J.H. was not a threat to escape, as his hands were
cuffed behind his back and his pants were down around his ankles at the time of the toss. Four
officers were on the scene.
103.

Deputy Ennis saw the defendant toss J.H. to the ground. Deputy Ennis saw no

reason for the defendant to toss J.H. Deputy Ennis had never been trained to toss a handcuffed
individual down on his back.
104.

The government also proved that the defendant engaged in another unreasonable

use of force after he moved J.H. to the snow bank, when the defendant hit J.H. multiple times in
the face while yelling that he could have hurt another officer.
105.

At the time that the defendant struck J.H., J.H. was sitting in the snow, with his

pants down and his hands cuffed behind his back.
106.

Deputy Kolb had an unobstructed view as the defendant struck the victim in the

1

On direct examination, the defendant claimed that he “dropped” J.H. because he thought J.H.
spit or got blood on the defendant’s face. The government submits that this claim is simply not
credible. No other witness describes seeing J.H. spit or get blood on the defendant at the time of
the toss. Only Deputy Kolb describes seeing a small speck of blood on the defendant’s face, but
that was after the defendant struck J.H. in his bloodied face on the snow bank. The defendant is
not seen on Government Exhibit 8 wiping, cleaning, or otherwise touching his face after the toss.
Further, the defendant himself failed to include this seemingly noteworthy information in his use
of force report, which he wrote only ten days after the incident, and after viewing the Merson
dashboard camera, raising the likelihood that that this information was a later fabrication made in
a self-serving attempt to explain his actions. However, even if the defendant’s claim were true,
the government submits that it would be an insufficient justification for throwing a handcuffed
teenager to the ground on his back.
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face at the snow bank. Deputy Kolb did not think that J.H. was a threat, and he saw no reason for
the defendant to strike J.H.
107.

Deputy Kolb saw no reason to use force against J.H., and he did not use force

against him.
108.

Deputy Ennis would not have used the level of force the defendant used against

J.H., and indeed, did not use any force against J.H. at the snow bank.
109.

No other officer except the defendant used any force against J.H. at the snow bank.

III.

Willfulness

110.

With regard to the third element that the government must prove, a person acts

willfully if he acts voluntarily and intentionally with the specific intent to do something the law
forbids. Here, this means that the defendant acted with the specific intent to deprive J.H. of his
right to be free from unreasonable seizures, which includes the right to be free from the use of
unreasonable force by one acting under color of law. 18 U.S.C. § 242; Ruschky, Pattern Jury
Instructions for Federal Criminal Cases, District of South Carolina § V (modified); United States
v. Mohr, 318 F.3d 613, 618 – 19 (4th Cir. 2003) (“[T]he government had to establish, inter alia,
that [the defendant] acted (1) willfully, that is with the particular purpose of violating a protected
right made definite by the rule of law or recklessly disregarding the risk that she would do so .…”)
(internal citations omitted); United States v. Cobb, 905 F.2d 784, 788 (4th Cir. 1990) (approving
instruction: “If you find that a defendant knew what he was doing and that he intended to do what
he was doing, and if you find that he did violate a constitutional right, then you may conclude that
the defendant acted with the specific intent to deprive the victim of that constitutional right.”);
United States v. McRae, 795 F.3d 471, 479 (5th Cir. 2015) (“Section 242 has a willful mental state
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requirement, which means that the prohibited act must have been done voluntarily and
intentionally and with the specific intent to do something the law forbids.”).
111.

Willfulness, like other states of mind, may be proved through circumstantial

evidence because there is no way of directly scrutinizing the human mind to reveal precisely what
someone was thinking at any given moment. The Court may infer a defendant’s state of mind
from the surrounding circumstances. In determining whether the defendant acted willfully, the
Court may consider any facts or circumstances it deems relevant to shed light on what was in the
defendant’s mind. For example, the Court may consider the manner in which any constitutional
violation was carried out, and the duration of any constitutional violation. The Court may also
consider: what the defendant said; what the defendant did or failed to do; how the defendant acted;
and whether the defendant knew, through training or experience, his actions were unlawful; and
whether the defendant knew that his actions violated the policies of the West Virginia State Police
or the defendant’s training. Williams v. United States, 341 U.S. 97, 102 n.1 (1951) (reciting with
approval the trial court’s instructions that the jury was “entitled to consider all the attendant
circumstances: the malice, if any, of the defendants toward these men; the weapon used in the
assault, if any; and the character and duration of the investigation, if any, of the assault, if any, and
the time and manner in which it was carried out. All these facts and circumstances may be taken
into consideration from the evidence that has been submitted for the purpose of determining
whether the acts of the defendants were willful and for the deliberate and willful purpose of
depriving these men of their Constitutional rights to be tried by a jury just like everyone else.”);
United States v. Cowden, 882 F.3d 464, 474 (4th Cir. 2018) (“To satisfy the element of ‘willful’
conduct, the government must prove that the defendant acted with the particular purpose of

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violating a protected right made definite by the rule of law or recklessly disregard[ed] the risk that
[he] would do so. Willfulness may be shown by circumstantial evidence, provided that the
defendant's purpose reasonably may be inferred from all the connected circumstances.”) (internal
citations and quotations omitted).
112.

In proving willfulness, it is not necessary that the government prove that a

defendant was thinking in constitutional or legalistic terms at the time of this incident. The
defendant need not be aware of the specific law or provision that his conduct violated. It is
sufficient that he commits an act with the intent to do something that the law forbids. Screws v.
United States, 325 U.S. 91, 106 (1945) (“The fact that the defendants may not have been thinking
in constitutional terms is not material where their aim was not to enforce local law but to deprive
a citizen of a right and that right was protected by the Constitution. When they so act they at least
act in reckless disregard of constitutional prohibitions or guarantees.”); United States v. Johnstone,
107 F.3d 200, 210 (3d Cir. 1997) (upholding jury instruction that “[y]ou may find that a defendant
acted with the required specific intent even if you find that he had no real familiarity with the
Constitution or with the particular constitutional right involved, here the right to be free from the
use of unreasonable or excessive force, provided that you find that the defendant intended to
accomplish that which the constitution forbids.”); United States v. Dise, 763 F.2d 586, 591 (3d
Cir. 1985) (approving jury instruction that “[t]he Government need not prove that the deprivation
of the constitutional rights was the predominant purpose of the defendant’s actions.”).
113.

The government proved, beyond a reasonable doubt, that the defendant acted

willfully.
114.

The evidence proves that, as a trained state trooper with seven years of law

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enforcement experience, the defendant knew that it was wrong to use unreasonable force against
an arrestee, including using force where there was no threat and using more force than necessary
to place a subject under arrest. The defendant knew from his law enforcement training that it was
wrong for an officer to use force to punish an arrestee.
115.

Captain David Lee of the West Virginia State Police described the training that the

defendant received at the state police academy about the appropriate use of force. That training
spelled out for the defendant that he could only use force that was reasonable, and he was explicitly
told that even if he were angry at an arrestee who had attacked an officer, he could not act on that
anger.
116.

The evidence proves that the defendant engaged in multiple uses of increasingly

unreasonable force against J.H. even though J.H. was not a threat to the defendant or any other
officer, and even though J.H. was not attempting to escape at the times the defendant used force.
117.

The evidence proves that the defendant yelled words to the effect that J.H. could

have hurt an officer while he was striking J.H. at the snow bank. These words are not law
enforcement commands or orders. Rather, the words that the defendant yelled at J.H. while at the
snow bank are evidence that the defendant used force on J.H. because the defendant was angry,
and not because it was reasonably necessary under the circumstances.
IV.

Bodily Injury

118.

If the Court finds that the government proved the first three elements of Count One,

then the Court should consider whether the government has proven beyond a reasonable doubt that
the defendant’s acts resulted in bodily injury to J.H.
119.

“Bodily injury” means a cut, abrasion, bruise, burn, physical pain, or any other
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injury to the body, no matter how temporary. The injury need not be significant, severe or
permanent. The government does not need to prove that the defendant intended to cause bodily
injury, or that the defendant’s acts were the sole cause of bodily injury. 18 U.S.C. § 242; Ruschky,
Pattern Jury Instructions for Federal Criminal Cases, District of South Carolina § III (modified);
United States v. Perry, 401 Fed.Appx. 56, 65 (6th Cir. 2010) (finding that “[t]he term bodily injury
means: 1) a cut, abrasion, bruise, burn, or disfigurement; 2) physical pain; 3) illness; 4) the
impairment of the function of a bodily member, organ, or mental faculty; or 5) any other injury to
the body, no matter how temporary.”). Pain alone is sufficient to establish this element. Perkins,
470 F.3d at 161 (“Physical pain alone or any injury to the body, no matter how fleeting, suffices”
to establish bodily injury.)
120.

The government proved that J.H. suffered injuries as a result of the defendant’s

actions.
121.

Paramedic Luther Edward Brown observed bleeding on J.H.’s face and contusions

on J.H.’s left hip and elbow. J.H. also informed Brown that his head hurt and that his handcuffs
were too tight.
122.

The defendant, during his direct examination, admitted that, during the initial

takedown of J.H., he used his foot to strike J.H. about the hips, which is consistent with the
contusions that paramedic observed on J.H. Testimony of Michael Kennedy, p. 29, l. 19 – p. 30,
l. 4.
123.

In Government Exhibit 8, an excerpt from Deputy Merson’s dashboard camera

video, the defendant can be seen using his left hand to push J.H.’s bloodied face into the ground
while forcefully striking J.H. eight times in the upper body with a closed fist.

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124.

Trooper Walker described these strikes by the defendant as “compliance” strikes,

which Trooper Walker defined as strikes that were designed to deliver pain.
125.

The defendant, on cross examination, admitted that the force he used during the

initial takedown, during the cuffing process, and at the snow bank was intended to cause J.H. pain.
Testimony of Michael Kennedy, p. 64, ll. 4 – 8, p. 65, ll. 11 – 20, p. 67, ll. 21 – 23.
126.

The defendant, on cross examination, admitted that he would have felt pain if

someone struck him eight times in the back. Testimony of Michael Kennedy, p. 66, ll. 1 – 3.
127.

In Government Exhibit 8, an excerpt from Deputy Merson’s dashboard camera

video, the defendant is seen tossing J.H. to the ground so forcefully that J.H. bounced and skidded
on the ground. J.H. landed on his back and his head, which is consistent with the pain caused by
the headache and tight handcuffs that J.H. reported to paramedic Brown.
128.

As described by Deputies Kolb and Ennis, the defendant struck J.H. multiple times

in his face, where he had already sustained lacerations and bleeding.
129.

In addition to the pain and contusions that paramedic Brown described, a review of

the amount of force the defendant used against J.H., as seen in Government Exhibits 8 and 4,
supports a reasonable inference, and confirms a common sense finding, that the defendant caused
J.H. pain when he kicked and stomped on J.H. during the takedown; when he used eight closedfist “pain compliance” strikes on J.H.; when he tossed a handcuffed J.H. on to his back and his

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cuffed hands; and when he slapped J.H. multiple times in the face, all just moments after J.H. had
already been injured in a serious car accident.

Respectfully submitted,
WILLIAM J. POWELL
UNITED STATES ATTORNEY
By:

/s/ Jarod J. Douglas
Jarod J. Douglas
Assistant United States Attorney
/s/ Christine M. Siscaretti
Christine M. Siscaretti
Trial Attorney

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CERTIFICATE OF SERVICE
I, Jarod J. Douglas, Assistant United States Attorney for the Northern District of West
Virginia, hereby certify that on the 25th day of October 2019, the foregoing UNITED STATES’
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW was electronically filed
with the Clerk of the Court using the CM/ECF system, which will send notification of such filing
to the following:
Byron Craig Manford, Esq.
PO Box 3021
Martinsburg, WV 25402
Counsel for Defendant
/s/ Jarod J. Douglas
Jarod J. Douglas
Assistant United States Attorney

29