Case 3:18-cv-01523 Document 51 Filed 01/31/20 Page 1 of 7 PageID #: 431

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA
AT HUNTINGTON

MICHAEL WALKER, individually,

Plaintiff,

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

Honorable Robert C. Chambers
M.H. LOVEJOY, in his individual capacity;
B.E. DONAHOE, in his individual capacity;
B.W. PAULEY, in his individual capacity;
PUTMAN COUNTY COMMISSION, a
political subdivision of the State of West
Virginia,

Defendants.

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

MENTION OF THE PARKLAND MASS SHOOTING OR AR-15 STYLE RIFLES

COME NOW the Defendants, Corporal Brian E. Donohoe and Deputy Brandon W. Pauley,

by counsel Charles R. Bailey, Adam K. Strider, and the law firm of Bailey & Wyant, PLLC, and

respond to Plaintiff’s Motion in limine to exclude mention of the Parkland mass shooting or AR-15

style rifles as follows.

A. The Plaintiff’s specific possession of an AR-15 style rifle and the temporal
proximity of the Parkland shooting are relevant to the determination of
reasonable suspicion for a stop.

Contrary to the contentions in the Plaintiff’s Motion in limine, the fact that Mr. Walker

specifically carried an AR-15 style rifle, and the temporal proximity to the Parkland mass shooting,

are of the utmost relevance in this case. These facts where both objectively true at the time of the

stop, and in the minds of the officers making the stop. Both officers testified that a contributing

factor in their concern for public safety was a heightened alert for copycat crimes in the wake of one

1
 Case 3:18-cv-01523 Document 51 Filed 01/31/20 Page 2 of 7 PageID #: 432

of the most widely covered mass shootings in history, in which the shooter employed the exact

weapon with which Mr. Walker happened to be walking in the direction of a school in session.

Depo. of Brandon Pauley, Pg. 16, Line 11 – Pg. 17, Line 7; see also Depo. of Brain Donohoe, Pg. 22,

Line 1 – Pg. 23, Line 5.

Throughout the past decade, AR-15 style rifles have been the weapon of choice of the

deadliest mass shooters. This is because, as former U. S. Marine infantry officer and author of “The

Gun,” a history of assault rifles and their effects upon security and war, C. J. Chivers, wrote in a

February 28, 2018 New York Times column:

When a gunman walked into Marjory Stoneman Douglas High School on Feb. 14, he
was carrying an AR-15-style rifle that allowed him to fire upon people in much the
same way that many American soldiers and Marines would fire their M16 and M4
rifles in combat.

See Chivers, C. J., Larry Buchanan, Denise Lu, and Karen Yourish, With AR-15s, Mass Shooters

Attack With the Rifle Firepower Typically Used by Infantry Troops, The New York Times Online

(Feb. 28, 2018), https://www.nytimes.com/interactive/2018/02/28/us/ar-15-rifle-mass-

shootings.html. In sum, AR-15 style rifles give the wielder the capability to kill more people in a

shorter amount of time than more commonplace styles of firearm, making it an appealing choice for

a would-be mass shooter whose goal is exactly that.

And its popularity with mass shooters has been repeatedly borne out by its use in

substantially all of the deadliest mass shootings since it became legal upon the expiration of the

federal assault weapons ban in 2004. On June 20, 2012, James Holmes used an AR-15 style rifle to

kill 12 and injure 58 in a movie theater in Aurora, Colorado. On December 14, 2012, Adam Lanza

used an AR-15 style rifle to kill 27 at Sandy Hook Elementary School in Newtown, Connecticut. On

December 2, 2015, Syed Farook and Tashfeen Malik used AR-15 style rifles to kill 14 and injure 21

2
 Case 3:18-cv-01523 Document 51 Filed 01/31/20 Page 3 of 7 PageID #: 433

in Santa Monica, California. On June 12, 2016, Omar Mateen used an AR-15 style rifle to kill 49

and injure 50 at Pulse night club in Orlando, Florida. On October 1, 2017, Stephen Paddock used

several guns, including an AR-15, to kill 58 and injure hundreds in Las Vegas, Nevada. On

November 5, 2017, Devin Kelley used an AR-15 style rifle to kill 26 at a church in Sutherland

Springs, TX. And on February 14, 2018, seven (7) days before Cpl. Donohoe and Dep. Pauley

received the call regarding an individual walking in what they knew to be the direction of a school

with the same type of firearm, Nikolas Cruz used an AR-15 style rifle to kill 17 and injure 14 at

Marjory Stoneman Douglas High School in Parkland, Florida. See Cummings, William and Bart

Jansen, Why the AR-15 keeps appearing at America’s deadliest mass shootings, USA Today Online,

(Feb. 14, 2018), https://www.usatoday.com/story/news/nation/2018/02/14/ar-15-mass-

shootings/339519002/.

Courts have previously held that the type of firearm present, even if legal for private

ownership, was relevant to a determination of reasonable suspicion. In Deffert v. Moe, 111

F.Supp.3d 797 (W. D. Mich. 2015), the Western District of Michigan held that the fact that the

Plaintiff carried an “FNP-45 Tactical pistol secured in a leg holster, with a TLR-2 rail mounted

tactical light with a laser sight attached to the pistol” contributed to the determination of reasonable

suspicion. Id. at 809. Further, in Baker v. Schwarb, 40 F.Supp.3d 881 (E. D. Mich. 2014), the fact

that the plaintiff therein possessed a legal AK-47 rifle was held to contribute to the reasonable

suspicion determination, when coupled with his all-black garb and close proximity to a hospital. Id.

at 884, 889.

Each of the mass shootings discussed above, including the fact that each one included the use

of an AR-15 style rifle, were nationally covered in the news media. Accordingly, a person looking to

commit a copycat offense can look to one consistent factor in the deadliest mass shootings: the use of

3
 Case 3:18-cv-01523 Document 51 Filed 01/31/20 Page 4 of 7 PageID #: 434

a particular type of firearm. Both officers testified that in the aftermath of Parkland, they were on

heightened alert for copycat crimes. The presence of an AR-15 style rifle reasonably heightens this

concern, and heightens it far more than would a more innocuous firearm such as a pump shotgun or a

bolt-action hunting rifle, due both to its relative killing power and the frequency with which it is used

in the deadliest and most publicized mass shootings. This is especially the case when taken in

combination with the Plaintiff’s proximity and heading in relation to a school. These facts are highly

relevant, either from a reasonable suspicion or community caretaker point of view, and should be

presented to the jury.

B. The facial legality of AR-15 style rifles for private ownership does not make its
possession irrelevant.

The Plaintiff has advanced the legally unsupported suggestion that because AR-15 style rifles

are legal for private ownership, that they cannot be carried in a place or manner which gives rise to

reasonable suspicion for an investigatory stop. This is not borne out by the case law. In each of the

cases cited by the Defendants wherein an armed person was validly detained for investigative

purposes, the firearms possessed by the plaintiffs therein were legally possessed. This does not mean

that their possession can never amount to reasonable suspicion in any context or under any

circumstances.

The facial legality of the conduct or the firearm does not negate reasonable suspicion. As the

Middle District of Pennsylvania noted in Banks v. Gallagher, 686 F.Supp.2d 499 (M. D. Pa. 2009):

Thus, the question here is not whether an individual in certain jurisdictions of

Pennsylvania may legally openly carry firearms. It is not contested by the Individual
Defendants (for purposes of this Motion) that such conduct is legal. Rather, the
question is whether a police officer has a reasonable suspicion, justifying a stop and a
short-lived inspection of a person’s driver’s license, when they are confronted by a
significant number of people exercising their open carry rights in a novel or
unexpected way, at an unexpected time and place.

4
 Case 3:18-cv-01523 Document 51 Filed 01/31/20 Page 5 of 7 PageID #: 435

Id. In so holding, the Court noted that “[t]here are any number of activities, legal in themselves, but

taken collectively may pose risks and dangers (to the public and to officers on the scene) and thereby

generate a reasonable suspicion to justify what would otherwise be a Fourth Amendment invasion.”

Id. Thus, the legality of AR-15 style rifles for private ownership does not negate their role in the

development of reasonable suspicion, and the jury should hear about the firearm present in this case.

C. Whether or not the officers were subjectively motivated by concerns over the
Plaintiff’s possession of an AR-15 style rifle in close proximity to a school is not
a factor in the reasonable suspicion analysis.

The Plaintiff also urges the Court to exclude any mention of AR-15 style rifles or the

Parkland shooting because of his skepticism that the officers were subjectively motivated by

concerns over his proximity to a school. As has been previously discussed in filings in this case, this

train of argument is legally irrelevant.

If the totality of the circumstances, viewed objectively, justify a search, an officer’s alleged

alternate motivations do not invalidate that search. See Whren v. United States, 517 U.S. 806, 813,

116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); see also Scott v. United States, 436 U.S. 128, 98 S. Ct.

1717, 1723, 56 L. Ed. 2d 168 (1978) (“[T]he fact that the officer does not have the state of mind

which is hypothecated by the reasons which provide the legal justification for the officer’s action

does not invalidate the action taken as long as the circumstances, viewed objectively, justify that

action.”); Flores v. City of Palacios, 381 F.3d 391, 402-403 (5th Cir. 2004) (“Flores’s car was

parked on the wrong side of a two-way street, which is a violation of Texas law[…] Kalina therefore

had authority to detain her[…] Whether he was actually motivated to detain her for other reasons is

irrelevant.”).

The objective facts of the encounter are that the Plaintiff, who was in his early twenties at the

time, was within walking distance of a school, and walking in the direction of that school, with an

5
 Case 3:18-cv-01523 Document 51 Filed 01/31/20 Page 6 of 7 PageID #: 436

AR-15 style rifle, seven (7) days after a massive nationally-covered school shooting involving the

same type of firearm when he was stopped. The pertinent question for this Court and the jury is

whether these facts amount to reasonable suspicion for an investigatory stop, or validly invoke the

community caretaker function. Under the applicable U.S. Supreme Court precedent cited above,

whether these facts subjectively motivated the officers to effectuate the stop has no bearing on the

stop’s validity. Therefore, the Plaintiff’s skepticism about whether Cpl. Donohoe was truly

concerned about a school shooting should not keep the jury from hearing the totality of the objective

facts surrounding the stop.

D. Conclusion

WHEREFORE, for the reasons stated herein, the Defendants respectfully pray this

Honorable Court DENY the Plaintiff’s Motion in limine, and grant such other relief as the Court

deems just and proper.

BRIAN E. DONOHOE and BRANDON W.

PAULEY,
By Counsel,
/s/ Adam K. Strider ______________
Charles R. Bailey (WV Bar #0202)
Adam K. Strider (WV Bar #12483)
BAILEY & WYANT, PLLC
500 Virginia Street, East, Suite 600
Post Office Box 3710
Charleston, West Virginia 25337-3710
T: 304.345.4222
F: 304.343.3133
cbailey@baileywyant.com
astrider@baileywyant.com

6
 Case 3:18-cv-01523 Document 51 Filed 01/31/20 Page 7 of 7 PageID #: 437

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA
AT HUNTINGTON

MICHAEL WALKER, individually,

Plaintiff,

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

Honorable Robert C. Chambers
M.H. LOVEJOY, in his individual capacity;
B.E. DONAHOE, in his individual capacity;
B.W. PAULEY, in his individual capacity;
PUTMAN COUNTY COMMISSION, a
political subdivision of the State of West
Virginia,

Defendants.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of foregoing ADEFENDANTS’

RESPONSE TO PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE MENTION OF THE
PARKLAND MASS SHOOTING OR AR-15 STYLE RIFLES@ was served upon the following
parties through the Court=s Electronic Case Filing (ECF) system on this day, January 31, 2020:

John H. Bryan, Esq.

Law Office of John H. Bryan
611 Main Street
PO Box 366
Union, WV 24983
Email Address: jhb@johnbryanlaw.com
Attorney For: Michael Walker

/s/ Adam K. Strider ______________

Charles R. Bailey (WV Bar #0202)
Adam K. Strider (WV Bar #12483)