CHARLESTON, W.Va. — The saga of the chamber door incident continues, this time with a legal twist.
Lawyers for state Delegate Mike Caputo threw a curveball this morning during an otherwise routine preliminary hearing in Kanawha Magistrate Court.
They filed a last-second motion to dismiss a misdemeanor battery charge against Caputo, citing a piece of state code giving lawmakers immunity from criminal charges when the Legislature is in session.
Magistrate Pete Lopez agreed to delay the hearing so he and prosecutors could read the motion and give more thought to the rarely-used provision.
Tim DiPiero, the lawyer for Caputo, brought up the motion almost apologetically, acknowledging he was making a legal argument that the magistrate and prosecutors were not expecting.
The pretrial hearing was really just meant to enter a plea and set a future hearing date. Prior to looking into the immunity statute, DiPiero said Caputo had intended to plead not guilty.
“I’ve never had a case involving a legislator being charged with something while performing his duties as a legislator,” DiPiero, a veteran Charleston lawyer, told the magistrate.
“There’s no case law in West Virginia on the statutes involved here. The West Virginia Legislature has statute giving legislators immunity from civil and criminal prosecution.”
The incident took place not only during the regular session — it was right at the chamber door that leads into the House of Delegates.
Caputo was charged in September with misdemeanor battery after angrily storming through the House chamber door, which struck a doorkeeper. The incident happened with just a few days left in the regular legislative session.
Caputo was also accused of making physical contact with then-Delegate Sharon Malcolm. Malcolm died later in September at her home. Staff for her re-election campaign said she passed away peacefully in her sleep.
The initial appearance in magistrate court was delayed a couple of times.
Caputo, a longtime delegate, announced this week that he will run for a Senate seat next year.
The angry incident last spring at the Capitol contributed to tension toward the end of the regular session, as delegates considered resolutions to expel or censure Caputo. Both were tabled.
Caputo’s anger was sparked March 1 during GOP Day at the Legislature because of a poster that showed an image of an airplane crashing into the Twin Towers on 9/11 juxtaposed with Congresswoman Ilhan Omar of Minnesota, who is a native of Somalia. Pamphlets described “The Four Stages of Islamic Conquest” and “Readin’, Writin’ and Jihadin’.”
Caputo, speaking publicly minutes later to fellow delegates, acknowledged getting so angry he kicked the door to the chamber open during the start of each day’s session that includes a prayer and the Pledge of Allegiance.
“I’m the one who kicked the door open. That’s how angry I was. I went over to that poster and I said it was a racist poster,” Caputo said then.
He later publicly apologized and also had a private conversation with the doorkeeper.
Caputo called it “probably the stupidest thing I’ve ever done in my political career.”
The incident was investigated by the state Capitol Police.
A criminal complaint by J.C. Chambers of the Capitol Police describes Caputo “making a commotion, talking loud and saying nasty things as he started up the steps.”
The front door to the House chamber is usually closed during the prayer that starts each morning’s floor session.
Witnesses said Caputo raised his hands, and began attempting to push it open and stated “open the GD door and nobody keeps me out.”
The investigators noted that the doors to the chamber have glass windows “and would have allowed for easy visibility into the same.”
Doorman Logan Casterline was struck as the door was forced open. After the incident, the complaint states, Casterline complained of pain and sought medical treatment.
Delegate Malcolm was interviewed following the incident and stated that as the session was starting Caputo stepped around her and “advised her to get the ‘F’ out of his way.”
Malcolm told investigators that Caputo “then took his elbow and pushed her out of the way,” according to the complaint.
“She stated that she was out of his way and that he had to come up behind her in order to hit her with his elbow. She stated that he was already around her and had to turn to strike her. Delegate Malcolm stated that she wasn’t initially hurt, but she was sore.”
She later told Capitol Police that she sought medical attention for pain that she had been experiencing on the right side of her chest and shoulder.
“Delegate Malcolm has further advised that she has continued to experience pain and is still under physician’s care for this injury.”