CHARLESTON, W.Va. — Federal prosecutors say a West Virginia state trooper lost his cool when he struck a 5-foot-8, 140-pound juvenile suspect identified only by the initials J.H., kicked him while he was being handcuffed, dropped him in a snowbank and slapped him.
Lawyers for the trooper say he acted understandably to subdue the young man who had rear-ended another officer’s cruiser, fled and crashed in a field, resisted and bucked while being handcuffed and, possibly, spit at the trooper’s face.
Now a single U.S. district judge, Gina Groh, must decide between the two positions in the excessive force trial of West Virginia Trooper Michael Kennedy.
The trooper’s confrontation happened in November, 2018, and drew scrutiny across the state, including from Gov. Jim Justice. A bench trial, which means there was no jury, unfolded earlier this month.
The prosecution and defense followed up on the two-day trial by filing detailed findings of facts and conclusions of law this week with the U.S. District Court for the Northern District of West Virginia in Martinsburg.
The documents agree on the basic timeline of what happened in the early morning hours of Nov. 19, 2018, and that Kennedy was acting under the authority of the West Virginia State Police.
But beyond that they differ greatly in their conclusions about the behavior of Trooper Kennedy, 29.
Federal prosecutors have asked for the judge to render a guilty verdict. If convicted, Kennedy faces a maximum of 10 years in prison followed by three years of supervised release, as well as a $250,000 fine.
“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,” prosecutors wrote.
Defense lawyers for Kennedy say the government failed to prove its case beyond a reasonable doubt. Kennedy was reacting to a stressful, uncertain situation and that the suspect’s resistance caused frustration to mount, the defense lawyers wrote.
“In sum, at all times, even in the tense situation presented by the chase and the accident, Trooper Kennedy took care not to cause harm to J.H.,” the defense lawyers wrote.
“He never used, or even threatened to use, any weapon or spray on J.H. Instead, he only did what was reasonably necessary to gain and keep control of a suspect who had demonstrated a propensity to flee and who resisted arrest.”
This all started about midnight Nov. 19, 2018, when officers were responding to a call at a bar called Jack Rabbit’s in Martinsburg.
One of the responding officers, Berkeley County Sheriff’s Deputy Christopher Merson responded in a lightly marked, black Ford Taurus that had no police light bar. While Merson was preparing to turn into the bar, he was rear ended by a silver car driven by 16-year-old J.H.
J.H, according to all accounts, backed up, drove around Deputy Merson’s vehicle and took off rapidly down Route 11. Officers from the sheriff’s department and the State Policie pursued at speeds of around 100 miles an hour.
The chase lasted about 90 seconds and ended when the vehicle driven by J.H. spun out of control,hit a utility pole and rolled, resulting in explosions that “lit up the sky like daylight.”
When officers approached the wrecked vehicle at first, J.H. was conscious and alert but did not respond to commands and did not move. The officers pulled him out of the wrecked car.
“J.H. landed on the ground, hard, sprawled out, with his pants pulled down halfway over his buttocks,” according to the filing by Kennedy’s lawyers.
Both accounts say the juvenile then tensed up and tucked his hands underneath his body, making it hard to handcuff him, and both sides say the officers used some acceptable forms of force, such as closed-hand strikes, to subdue the suspect. But Kennedy was accused of kicking and stomping the young man.
When J.H. was finally handcuffed, he was being escorted to a vehicle by Trooper Derek Walker. But J.H. again tensed and jerked, and Walker lost his balance and fell.
“Trooper Kennedy then viewed J.H. as an active combatant, and decided to get him away from the injured officer as quickly as possible,” defense lawyers wrote.
Kennedy picked J.H. up by the shirt and walked several steps before feeling something wet hit his face. He concluded it was spit.
So the trooper lifted the suspect up and tossed him on the ground.
“J.H., whose hands were cuffed behind him, landed flat on his back,” prosecutors wrote.
The defense wrote, “Trooper Kennedy denied he wanted to hurt J.H. by tossing him on the ground. Rather, when the blood or spit hit his face he reacted to create space by, as he remembered, dropping him. He conceded that his action appeared ‘a little rougher’ than he had intended.”
Officers including Kennedy then decided to carry J.H. closer to the main road, dropping him in a snow bank on the side of Route 11. The defense suggests this was to move away from the wreckage and toward where an ambulance would arrive. “This indicates concern for J.H.,” the defense lawyers wrote.
“Why are you doing this? Are you aware of what you did?” Kennedy asked the juvenile, according to his defense lawyers.
The defense lawyers contend Kennedy told the young man that he could have paralyzed or killed someone and that J.H. responded by saying he did not care.
So Kennedy slapped him in the face multiple times.
His defense contends he didn’t lose control, but that he was upset.
“Trooper Kennedy was frustrated because it appeared that none of his compliance techniques were working,” the defense lawyers wrote.
When J.H. was treated, he complained that his head hrt and his handcuffs were too tight. He also had cuts and abrasions.
All this came to light days later when the Berkeley County Sheriff’s Department was reviewing video from the cruisers. Capt. Wilbur Johnson was routinely viewing the videos as part of his crash report when he saw something on the ground that the officers were striking.
“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,” prosecutors wrote.
Johnson then reviewed a second dash video and was increasingly alarmed by what he saw.
“Captain Johnson immediately stopped the video and notified the Sheriff,” prosecutors wrote, “because he needed to let his supervisor know what he was seeing.”
From there the video went to authorities with the State Police, who then gave Governor Justice a description of the disturbing actions that had taken place. Justice said he would not tolerate that kind of behavior.
“It’s ridiculous, to tell you the honest truth, just plain ridiculous,” West Virginia’s governor said. “It’s inexcusable.”
Kennedy Findings of Fact and Conclusions of Law (Text)