A Fourth of July, 2014, altercation between three police officers and a former state trooper has led to a civil suit and a federal investigation against the officers and the town of Alderson over alleged use of excessive force.
Plaintiff John Edwin Bumgarner, 66, filed a civil action complaint with the U.S. District Court for the Southern District of West Virginia, on July 1, 2016, against police officers Jordan Clendenen, Daniel Hinkley Jr., Jeremy Bennett and the town of Alderson in connection with events that occurred following the 2014 Fourth of July parade.
The complaint states that Bumgarner was beaten by two of the officers and is seeking compensatory and punitive damages. Federal authorities have launched a criminal investigation into the alleged actions of the Alderson police officers, according to the plaintiff’s lawyer, John Bryan of Union.
“They have requested the video footage and documents, which we are providing,” Bryan said.
According to the suit, Bumgarner, a retired state trooper, was waiting in traffic for about 10 to 15 minutes at an intersection following the July Fourth parade in 2014. A car ahead of him was preventing him from seeing the cause of the hold up, so he tapped the horn in his truck to get the attention of the driver ahead. Clendenen, who was directing traffic at the intersection, allegedly became irate over Bumgarner blowing the horn, walked over to him and warned if he did it again, he would issue him a citation.
“Boy, I didn’t know tapping your horn was against the law,” Bumgarner said, who stated in the complaint he meant no disrespect.
Clendenen allegedly replied, “If you call me ‘boy’ one more time, I will yank you out of your truck and show you who the boy is,” the lawsuit states.
Bumgarner claims that Clendenen then ordered him to pull his truck to the side of the road, which he could not immediately do because he was trapped between two cars. When he stated that he had done nothing wrong, Clendenen refused to let him leave and radioed for backup, and Hinkley and Bennett arrived.
The plaintiff again responded that he had done nothing wrong, at which point, Clendenen suddenly attempted to forcibly pull Bumgarner’s truck door open and pull him out of the vehicle. Since there was no warning, and Bumgarner’s truck was still in gear with his foot on the brake, he initially attempted to hold the door closed to attempt to regain control of the vehicle so he could safely exit, according to the suit.
At this point, Bumgarner claims he noticed his pistol, which was in his door side pocket, and for which he had a permit, was about the fall to the ground. He informed the officers that he had a lawfully owned and concealed pistol, for which he had a permit, and that it was about to fall to the ground.
The lawsuit states the plaintiff picked the pistol up by the butt, holding it with his two left fingers and left thump with the barrel pointing down and held it up high so that the officers could see he meant no harm. He expected one of the officers to take the pistol from him, but they said nothing and then drew their weapons and threatened to shoot him.
While attempting to show them his concealed pistol permit, Bumgarner claims Hinkley attacked him with a head-butt and physically dragged him out of his vehicle and struck him with his fist. While Hinkley was beating the plaintiff, Clendenen and Bennett were holding Bumgarner’s hands behind his back, the suit states. He received blows to his face and several kicks to his left side and shoulder.
Bumgarner was charged by the defendant officers with the misdemeanor municipal violations of brandishing a deadly weapon, as well as resisting arrest – both violations carrying a maximum penalty of 30 days in jail upon conviction.
On August 27, 2015, in the municipal courtroom of Alderson City Hall, Judge Ken Sayre determined Bumgarner was guilty of brandishing and fined him $100 in addition to court costs. Sayre also found Bumgarner guilty of obstructing an officer and fined him $500 and five days in jail, but suspended the jail time. During an appeal in November 2015, Circuit Court Judge Robert Richardson overturned the brandishing charge but upheld the misdemeanor charge of obstructing an officer.
Bumgarner states that he suffered multiple injuries and is still dealing with problems from an eye injury he received during the alleged incident. He has had to undergo surgery and is suffering from emotional damage including symptoms of post traumatic stress disorder.
Bumgarner’s civil action contains four counts: one for excessive force in violation of the Fourth Amendment; one count of bystander liability based on the ability of the officers to intervene in one another’s alleged unconstitutional use of force; one count asserting municipal liability; and one count that asserts a state law claim for negligence based on the negligent use of excessive force, negligent failure to comply with constitutional standards regarding use of force, negligent training and negligent supervision.
According to the suit, the town of Alderson, on behalf of the Alderson Police Department, has developed, implemented, fostered and encouraged a policy of using undocumented excessive force against arrestees and pretrial detainees, in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Attorneys for Clendenen, Hinkley, Bennett and the town of Alderson filed several motions to dismiss all four charges, which were denied by U.S. District Judge Irene C. Berger on December 15, 2015.
“A reasonable officer would not expect a driver, without question, to immediately cooperate with an arrest premised on improper use of a horn,” Berger wrote. “Many citizens would likely respond, much as Mr. Bumgarner did, with surprise and verbal argument.”
The case is set for a jury trial on Aug. 21 at the Beckley Division of the Southern District of West Virginia.