Case 3:21-cv-00078-GMG Document 1 Filed 05/20/21 Page 1 of 19 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF WEST VIRGINIA
AT MARTINSBURG
ELECTRONICALLY
FILED
WINERD “LES” JENKINS,
May 20 2021
U.S. DISTRICT COURT
Plaintiff, Northern District of WV
3:21-CV-78 (Groh)
vs. Civil Action No.

CHASSIDY KINSER, individually,

DEPUTY S. ROBINSON, individually,
DEPUTY A. WEIDMAN, individually,

Defendant.

COMPLAINT

This complaint, brought pursuant to 42 U.S.C. Section 1983, the Fourth Amendment and

First Amendment to the United States Constitution, arises out of the defendant’s commission of

an unreasonable search and seizure and false arrest against the Plaintiff at his place of business

on or about April 23, 2020 in Berkeley County, West Virginia, within the Northern District of

West Virginia.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343.

PARTIES

1. The Plaintiff, Winerd “Les” Jenkins was at all times relevant hereto a resident of

Hampshire County, West Virginia. He operates a business in Berkeley County, West Virginia.

2. Defendant Chassidy Kinser was at all times relevant hereto an Inspector with the

West Virginia Board of Barbers and Cosmetologists (“WVBBC”) and was at all times relevant

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hereto acting under color of law, having an address of 1201 Dunbar Avenue, Dunbar, West

Virginia 25064.

3. Defendant Deputy S. Robinson was at all times relevant hereto a deputy sheriff

police officer employed by the Berkeley County Sheriff’s Department and was at all times

relevant hereto acting under color of law. He is named herein in his individual capacity, having

an address of 510 S. Raleigh Street, Martinsburg, WV 25401.

4. Defendant Deputy A. Weidman was at all times relevant hereto a deputy sheriff

police officer employed by the Berkeley County Sheriff’s Department and was at all times

relevant hereto acting under color of law. She is named herein in her individual capacity, having

an address of 510 S. Raleigh Street, Martinsburg, WV 25401.

FACTS

5. On March 16, 2020, Gov. Justice declared a “State of Emergency” under W. Va.

Code § 15-5-6. In the proclamation, the Governor provided the following substantiation for his

declaration of a “State of Emergency”:

• On January 21, 2020, the Center for Disease Control and Prevention activated their
Emergency Response Center and began responding to COVID-19;
• On March 2, 2020, the Governor declared a “State of Preparedness;”
• It is of the utmost importance that Cabinet Secretaries, Commissioners, and Directors
throughout the state have the ability to take measures necessary to ensure the safety of
citizens;
• The COVID-19 epidemic constitutes a disaster under W. Va. Code § 15-5-2;1
• COVID-19 has been deemed a pandemic by the World Health Organization and the
President of the United States has declared a national emergency;

1
Under W. Va. Code 15-5-2(h), "Disaster" means the occurrence or imminent threat of widespread or
severe damage, injury, or loss of life or property resulting from any natural or terrorist or man-made
cause, including weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil
spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation or
other public calamity requiring emergency action.

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• It is in the best interest of the citizens of West Virginia that we are able to stand up
emergency operation centers and allow boards and agencies to suspend certain rules that
inhibit them from responding effectively.

6. On March 17, 2020, Gov. Justice announced that West Virginia had one positive

COVID-19 case, in the eastern panhandle of the State.2 On the same day, Gov. Justice

unilaterally began to implement a statewide lockdown for some businesses and organizations by

executive order. He ordered the closure of all restaurants, bars, casinos, gyms, recreational

facilities “and similar businesses or entities where the public tends to congregate for recreation,

sport, or similar leisure activities,” within all fifty-five counties the State.3 As of the issuance of

those orders, there were only two confirmed cases of COVID-19 in West Virginia. The Order

noted that the Governor was authorized to take such measures in order to:

[A]mong other things, control ingress and egress to and from a disaster area or an area
where large-scale threat exists, the movements of persons within the area, and the
occupancy of premises therein.”4

7. On March 16, 2020, Gov. Justice issued the “Stay at Home Order,” via Executive

Order 9-20, ordering West Virginia residents to stay at home, for “non-essential” businesses and

operations to cease operations, for “essential” businesses to continue operations, and further

dictating which businesses were “essential” under the Order.

8. During his March 19, 2020 televised and live streamed press briefing, Governor

Justice discussed barbers, specifically:

I also want to announce today because - and I really don’t know exactly why this is the
way, but I guess everybody is looking to me or the government for guidance, you know -

2 https://dhhr.wv.gov/News/2020/Pages/COVID-19-Daily-Update---March-17,-2020.aspx
3 See Executive Orders 2-20, 3-20
4
See Executive Order 6-20.

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but, we had many requests from the stand point of barbers saying, “you know, we don’t
feel comfortable being that close and that close contact with others and everything . . . .”
The first thing that comes to my mind was then, “why don’t you just not do it then . . .”
you know. But, but from that standpoint I think you know they are looking again for - to
us, to me, or for, to us - for guidance. So today I’m asking that all the barber shops, all
the ail salons and all the hair dressings you known, you know, uh facilities that we have
shut down.5

9. On March 20, 2020 - the next day - Governor Justice issued Executive Order 6-20

which, among other things, ordered that “all barber shops, nail salons, and hair salons throughout

the 55 counties of [West Virginia] shall not allow occupancy by the general public.”6 The

Governor’s order pertaining to barbershops did not mention the word “close.” Rather, pursuant to

the recitation of authority in the Executive Order, expressly limited the occupancy of a premises

located within a state of emergency, thus purporting to restrict occupancy of barber shops, rather

than expressly mandating closure.

10. Plaintiff, Winerd “Les” Jenkins is a 73 years old barber who owns and operates

Les’ Place Traditional Barber Shop, located in Inwood, West Virginia, located within Berkeley

County, West Virginia. He lives on a small farm with his wife of 52 years, where the couple

raises rescued animals. Mr. Jenkins is a Vietnam Veteran. He learned the barbering trade while in

the military and has served as a barber for over five decades. Plaintiff also served in law

enforcement, being employed as a Deputy U.S. Marshall for 27 years. After retiring from law

enforcement, barbering was the sole source of income for Mr. Jenkins and his wife, including at

all times relevant hereto.

5See Press Conference by Gov. James Justice, March 19, 2020 at https://youtu.be/3VkFc-QBEcI
(Emphasis added).
6
See Executive Order 6-20.

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11. Following Governor Justice’s issuance of his executive order pertaining to barber

shops, Plaintiff was never contacted by the regulating body of barber shops in West Virginia - the

West Virginia Board of Barbers and Cosmetologists (“WVBBC”). As with other barbers, Mr.

Jenkins heard the news solely from the media.

12. Mr. Jenkins initially complied with Governor Justice’s request to restrict entry

into his barber shop by the general public, using the time to perform some renovations to his

shop.

13. After about three weeks, Mr. Jenkins and his wife began to run out of money. At

his local bank, he was denied a Paycheck Protection Program loan, due to the fact that his

business operated on an all-cash basis. He called Workforce West Virginia to apply for pandemic-

related assistance. Workforce West Virginia - the “unemployment office” - told Plaintiff that in

order to receive assistance, he would have to provide evidence that he had been ordered “to

close.”

14. On April 10, 2020, in order to obtain the documentation necessary to apply for

unemployment, Plaintiff wrote to the WVBBC, requesting a signed letter to confirm that the

governor’s order required him to close. He never received a reply.

15. With the passage of two more weeks with no income, Plaintiff was in danger of

losing his home, farm and business.

16. On Wednesday, April 22, 2020, Plaintiff opened his shop and cut hair for seven

customers - all walk-ins, including several police officers. It would be his only day in operation.

17. The following day, on April 23, 2020, Defendant Chassidy Kinser, an Inspector

for the WVBBC arrived at the barbershop door, which was locked. She informed Plaintiff that

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she had received a complaint the prior week from a local hairstylist, complaining that he was in

business during the shutdown. Plaintiff responded that he had not been in business at the time of

the complaint - but he admitted to being open the previous day.

18. Plaintiff told Defendant Kinser that he would voluntarily close his shop if she

would provide him with signed documentation that he was required to close, so that he could use

the documentation to obtain unemployment benefits.

19. Defendant Inspector Kinser then returned to her car. Plaintiff assumed that she

was obtaining the requested documentation. Instead, she apparently called law enforcement, after

which two deputies arrived at Plaintiff’s barbershop.

20. The two deputies who arrived were Defendant Robinson and Defendant

Weidman. They were in uniform and were wearing body cameras. Deputy Weidman’s body

camera captured the following statement being made by Defendant Kinser to Defendant Deputy

Robinson prior to the deputies making entry in the barbershop:

I knocked on his door, because I’m immune comparable [sic] so I’m trying not to be out
here. My husband just had surgery and I’m trying not to bring anything back to him, you
know.7 So I knocked on his door, asked him to come outside, told him you know, that
there’s a mandate, you have to be closed - all the other shops are closed - so I’m doing
my job by asking you to close down. We don’t want you to get the other people sick or
anything to happen, you know. He’s like, well, I wasn’t aware of this. Sure….8

21. Both deputies then walked inside and confronted the Plaintiff, who was alone

inside his barbershop. They did not have a warrant. They did not request Plaintiff’s consent to

enter or remain on the premises. Defendant Kinser did not enter, but rather waited outside.

7Defendant Kinser was not wearing a mask at any point during the conversation. By saying “sure,”
Kinser was implying that Plaintiff was lying.
8
See body camera footage from Defendant Weidman.

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22. Defendant Robinson walked up to the Plaintiff and said, “you know you have to

be shut down, right?”

23. Plaintiff responds to Defendant Robinson, “She arrived here at 9:00

a.m.” (referring to Defendant Kinser) and said she had received a complaint that he was open for

business. “She said that she had to shut me down and I said that I needed her order in writing,

and sign it.”

24. Defendant Weidman then went back outside to speak with Defendant Kinser. She

asked Kinser whether she had a copy of the order. Kinser stated that she did not have a hard-copy

of the order, because her office is in Charleston, and she’s “rarely there.” Instead, Kinser

obtained an electronic copy of the governor’s executive order on her phone.

25. During this interaction, Defendant Kinser referred to Defendant Weidman as

“Kool-aid.” After a brief moment of apparent confusion by Deputy Weidman, Defendant Kinser

explained that her husband was “Joe Kinser,” an assistant prosecuting attorney for the same

county. Defendant Kinser stated that she had spoken to her husband and described to him the

appearance of the two deputies at the scene. Kinser then identified the deputies for her, as well as

informing her of Weidman’s nickname, “Kool-aid.”

26. Weidman then took the phone and returned inside the barbershop. Once inside,

Weidman handed the phone to Deputy Robinson, who then handed it to the Plaintiff.

27. Plaintiff responded that he needed a tangible document signed by Defendant

Kinser, stating that she is forcing his closure, and that he would then comply.

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28. While the deputies waited inside the barbershop, Defendant Kinser eventually

returned with a hard-copy version of the governor’s executive order. However, she said that she

was instructed by an unnamed individual not to sign the document.

29. When the Plaintiff refused to acknowledge the document as sufficient, the

defendant deputies seized the Plaintiff and executed a warrantless arrest for the alleged criminal

violation of obstructing an officer, pursuant to W. Va. Code § 61-5-17.9

30. Plaintiff was then physically arrested, transported to the sheriff’s office, processed

and placed in a holding cell, where he spent approximately three hours before being handed his

charging documents and being released on a $500.00 personal recognizance bond.

31. Thereafter, the Berkeley County Prosecuting Attorney’s office, where Defendant

Kinser’s husband was employed at the time, aggressively prosecuted the Plaintiff, delaying the

litigation far beyond an average misdemeanor obstructing an officer prosecution, all-the-while

refusing to dismiss the frivolous criminal charge against the Plaintiff.

32. Plaintiff’s then-counsel filed a motion to dismiss the obstruction charge, to which

the prosecuting attorney objected.

33. The motion to dismiss came on for hearing before the Magistrate Court of

Berkeley County on January 7, 2021. The Court ultimately dismissed the criminal prosecution

with prejudice, finding that Executive Order 6-20 was unconstitutionally vague, in violation of

the Fifth Amendment. The dismissal order further found that Executive Order 6-20 requires one

9
W. Va. Code § 61-5-17 provides: Any person who threats threats, menaces, acts or otherwise, forcibly or
illegally hinders or obstructs, or attempts to hinder or obstruct, any law-enforcement officer, probation
officer or parole officer acting in his or her official capacity is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than fifty nor more than five hundred dollars, and may, in the
discretion of the court, be confined in the county or regional jail not more than one year.

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to “guess at what conduct is prohibited,” as well as “what, if any, punishment an individual

would be subjected to if an alleged violation occurred.” It further noted that “[n]o clear standards

for adjudication were described in the Order and the public was left to question whether a

violation of Executive Order 6-20 was a civil matter or criminal matter.”10

34. Additionally, throughout the criminal prosecution of Mr. Jenkins, the WVBBC

attempted to take administrative action against his barber’s license. On April 21, 2020, the

WVBBC instituted an administrative proceeding against the Plaintiff.

35. On August 10, 2020, West Virginia Attorney General, Patrick Morrissey,

announced that the WVBBC had made the decision to dismiss the administrative complaint

against the Plaintiff. In a press release, he is quoted as saying,

Exercising one’s right to inquire about the legal nature of an executive order should never
result in the revocation of one’s license to do business, and I commend the board for its
ruling….11

36. On September 4, 2020, Plaintiff received a letter Certified Mail from the WVBBC

notifying him that the administrative complaint against him had been dismissed, in accordance

with the statement from the Attorney General. However, the Prosecuting Attorney’s office in

Berkeley County continued to criminally prosecute Mr. Jenkins, despite the statement of the

Attorney General and the decision of the WVBBC.

10 See Order of Dismissal at 4-5.

11
https://wvrecord.com/stories/545756302-morrisey-supports-board-s-dismissal-of-complaint-against-
berkeley-county-barber-who-refused-to-close-for-pandemic

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COUNT ONE - VIOLATION OF THE FOURTH AMENDMENT

(The Entry and Initial Seizure)

37. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

38. On April 23, 2020, Defendant Robinson and Defendant Weidman, at the

instruction of Defendant Kinser, while acting under color of law, entered the Plaintiff’s place of

business without a warrant, without voluntary consent and without the existence of exigent

circumstances, for the purpose of performing a search and seizure therein.

39. Through engaging in an overt show of authority as uniformed law enforcement

officers, the Plaintiff was immediately detained inside his place of business, ultimately being

arrested at the conclusion of the investigative detention. He was then immediately transported for

incarceration as a pretrial detainee. The entire incident consisted of a “seizure” under the Fourth

Amendment from the moment police officers Robinson and Weidman walked through the

business entrance, and continuing thereafter until the Plaintiff was able to post bond.

40. No warrant was obtained by any defendant herein prior to entering Plaintiff’s

place of business and/or seizing the Plaintiff.

41. At the time Plaintiff was seized, he was alone inside his business with no

customers present on the premises. Nor had the defendants witnessed customers inside the

Plaintiff’s shop. The door was locked prior to the arrival of Defendant Kinser.

42. At the time Plaintiff was seized, defendants Robinson and Weidman had no

reasonable suspicion that Plaintiff had violated any criminal statute. Nor did they have probable

cause to believe that Plaintiff had committed any offense.

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43. No objectively reasonable police officer would believe that he, or she, could enter

a private business without a warrant in order to investigate allegations of criminal conduct and/or

to perform a search and seizure therein, in the absence of both reasonable suspicion and probable

cause.

44. Defendant Robinson and Weidman were acting at the direction of Defendant

Kinser, who had already made it clear to the officers that her husband was a local prosecutor, and

that she had already spoken to him about their presence at the scene.

45. Defendants’ actions were taken under color of law, objectively unreasonable,

willful, wanton, intentional and done with a callous and reckless disregard for the Plaintiff’s

Fourth Amendment rights to be free from unreasonable search and seizure.

46. Plaintiff suffered damages for which he is entitled to recover.

COUNT TWO - VIOLATION OF THE FOURTH AMENDMENT

(False Arrest)

47. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

48. On April 23, 2020, the defendant police officers, acting under the direction and/or

request of Defendant Inspector Kinser, jointly participated in, and effected, the warrantless arrest

of the Plaintiff for an alleged violation of W. Va. Code § 61-5-17 - obstructing an officer.

49. Defendants seized the Plaintiff and arrested him without a warrant and without

probable cause that he had committed any criminal offense.

50. At the time of the Plaintiff’s arrest, the facts and circumstances within the

defendants’ joint knowledge, as well as those available to the defendants individually, were not

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sufficient to warrant a reasonably prudent person to believe in the circumstances shown that

Plaintiff had violated any criminal statute or offense. Therefore there was no probable cause at

the time of his arrest to justify the seizure.12

51. Plaintiff was charged with obstructing an officer, which provides:

Any person who threats threats, menaces, acts or otherwise, forcibly or illegally hinders
or obstructs, or attempts to hinder or obstruct, any law-enforcement officer, probation
officer or parole officer acting in his or her official capacity is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred
dollars, and may, in the discretion of the court, be confined in the county or regional jail
not more than one year.

52. The Fourth Amendment protects "[t]he right of the people to be secure in their

persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. A seizure is

unreasonable under the Fourth Amendment if it is not based on probable cause. Dunaway v. New

York , 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Thus, "[i]f a person is arrested

when no reasonable officer could believe ... that probable cause exists to arrest that person, a

violation of a clearly established Fourth Amendment right to be arrested only upon probable

cause ensues." Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).

53. "Probable cause is determined by a ‘totality-of-the-circumstances’ approach."

Smith v. Munday , 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates , 462 U.S. 213, 230,

103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). The inquiry "turns on two factors: ‘the suspect’s

conduct as known to the officer, and the contours of the offense thought to be committed by that

12
Although in criminal cases the question of whether a police officer had probable cause to make an
arrest is a question for the court to decide, there is substantial authority that in § 1983 cases this issue
should be submitted to the jury upon proper instructions defining probable cause. Thacker v. City of
Columbus, 328 F.3d 244 (6th Cir. 2003); Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998);
McKenzie v. Lamb, 738 F.2d 1005 (9th Cir. 1984); Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).

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conduct.’ " Id. (quoting Graham v. Gagnon , 831 F.3d 176, 184 (4th Cir. 2016) ). While the court

looks to the information available to the officer on the scene at the time, the courts apply an

objective test to determine whether a reasonably prudent officer with that information would

have thought that probable cause existed for the arrest. Graham , 831 F.3d at 185. Evidence

sufficient to secure a conviction is not required, but probable cause exists only if there is

sufficient evidence on which a reasonable officer at the time could have believed that probable

cause existed for the arrest. Wong Sun v. United States , 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.

2d 441 (1963).

54. On the charge of allegedly obstructing an officer, in violation of WV Code §

61-5-17(a), the plain language of the statute establishes that a person is guilty of obstruction

when he, “by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or

attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting

in his or her official capacity.” The Fourth Circuit recently examined the statute:

As West Virginia’s high court has "succinct[ly]" explained, to secure a conviction under
section 61-5-17(a), the State must show "forcible or illegal conduct that interferes with a
police officer’s discharge of official duties." State v. Davis, 229 W.Va. 695, 735 S.E.2d
570, 573 (2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611 (2008)).
Because conduct can obstruct an officer if it is either forcible or illegal, a person may be
guilty of obstruction "whether or not force be actually present." Johnson , 59 S.E.2d at
487. However, where "force is not involved to effect an obstruction," the resulting
obstruction itself is insufficient to establish the illegality required by section 61-5-17.
Carney , 663 S.E.2d at 611. That is, when force is not used, obstruction lies only where
an illegal act is performed. This is because "lawful conduct is not sufficient to establish
the statutory offense." Id.

Of particular relevance to our inquiry here, West Virginia courts have held that "when
done in an orderly manner, merely questioning or remonstrating with an officer while he
or she is performing his or her duty, does not ordinarily constitute the offense of
obstructing an officer." State v. Srnsky, 213 W.Va. 412, 582 S.E.2d 859, 867 (2003)

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(quoting State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 373 S.E.2d 484, 486 (W. Va.
1988)).

For example, the Supreme Court of Appeals has found that no obstruction is committed
when a property owner asks a law enforcement officer, "without the use of fighting or
insulting words or other opprobrious language and without forcible or other illegal
hindrance," to leave her property. Wilmoth , 373 S.E.2d at 487. This principle is based on
the First Amendment "right to question or challenge the authority of a police officer,
provided that fighting words or other opprobrious language is not used." Id. ; see Graham
, 831 F.3d at 188 ("Peaceful verbal criticism of an officer who is making an arrest cannot
be targeted under a general obstruction of justice statute ... without running afoul of the
First Amendment." (citation omitted)).

Hupp v. State Trooper Seth Cook, 931 F.3d 307 (4th Cir. 2019).

55. As the Attorney General pointed out in his press release when the WVBBC

dismissed the administrative proceedings against the Plaintiff, “[e]xercising one’s right to inquire

about the legal nature of an executive order should never result in the revocation of one’s license

to do business…” - much less physical arrest and incarceration.

56. The Plaintiff questioned the authority of the governor, as well as the authority of

the defendant police officers and Defendant Kinser, to forcibly “close” his private business. At

no time was it even alleged that Plaintiff “obstructed” an officer under West Virginia law. In fact,

Defendant Robinson’s police report narrative admits that Plaintiff stated repeatedly that he would

voluntarily close his barbershop upon receipt of a copy of the Governor’s Order with Kinser’s

signature. Robinson’s report also mentions that, in the event he was not provided with the

requested documentation, that Plaintiff was willing to be placed under arrest by the officers.

Moreover, the report notes that Mr. Jenkins asked the deputies if he “may lock up his shop before

being placed under arrest.” Plaintiff was indisputably polite and compliant with the officers. He

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therefore could not have obstructed an officer under the well-settled law of what constitutes

“obstruction” in West Virginia.

57. The Fourth Circuit has already observed that Plaintiff could have asked the

officers to leave the premises and challenged their authority all he wanted, without committing a

state law criminal violation of obstruction. See Hupp, infra. The body camera footage of the

incident shows that Plaintiff was calm, polite and cooperative when interacting with the

defendant law enforcement officers. He merely questioned their authority and stated that he was

willing to be placed under arrest, if they chose to arrest him. Such conduct does not amount to

"forcible or illegal conduct that interferes with a police officer’s discharge of official duties."

State v. Davis, 229 W.Va. 695, 735 S.E.2d 570, 573 (2012) (quoting State v. Carney, 222 W.Va.

152, 663 S.E.2d 606, 611 (2008)).

58. Moreover, as proven by the body camera footage, there were no members of the

general public in the Plaintiff’s barbershop at any time while law enforcement was present on the

premises. On its face, Executive Order 6-20 did not order the barbershop to “close,” but rather

mandated that “all barber shops . . . shall not allow occupancy by the general public.” Moreover,

the executive order purported to “control ingress and egress to and from a disaster area or an

area where large-scale threat exists, the movement of persons within the area and the occupancy

of premises therein…” which tracks the language of the emergency powers statute, W. Va. Code

15-5-6(c)(6).

59. Nothing in Executive Order 6-20 expressly prevented Mr. Jenkins from physically

occupying his business premises; nor from opening his business to sell gift-cards or hair care

products, either in-person or online, in order to maintain his livelihood. Nothing in the order

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prohibited Mr. Jenkins from being personally present on his property; nor from making repairs or

engaging in maintenance or renovations. Ironically, nothing in the Order prevented Mr. Jenkins

from cutting the hair of essential emergency workers, such as police officers, which he in-fact

did the day prior.

60. West Virginia law provides that police officers may not arrest individuals

suspected of misdemeanor criminal violations without a warrant, unless the offense is performed

in the officer’s presence. See W. Va. Code § 15-5-18. No criminal violations were alleged to have

been committed by the Plaintiff in the presence of the defendants. Therefore, even had probable

cause existed, State law requires that the defendant officers were mandated to obtain an arrest

warrant prior to placing the Plaintiff under arrest for misdemeanor criminal violations occurring

outside their presence.

61. No reasonable officer would have believed that probable cause existed for the

Plaintiff’s warrantless arrest on April 23, 2020. Plaintiff was merely standing in his barbershop

with no customers or members of the general public present. He was questioning their authority

to effect a seizure of him, which he possessed a constitutional right to do, and which has been

explicitly stated by both the Fourth Circuit and the West Virginia Supreme Court of Appeals, as

being lawful. At no time did Plaintiff obstruct or hinder any police officer - forcibly or otherwise.

62. Plaintiff suffered harm, including attorney fees and expenses, for which he is

entitled to recover.

COUNT THREE - FIRST AMENDMENT RETALIATION

63. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

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64. The Plaintiff engaged in protected First Amendment speech when he questioned

the authority of defendants Kinser, Robinson and Weidman, to effectuate a seizure of the Plaintiff

and forcibly close his business on April 23, 2020. He explained repeatedly to the officers that he

believed that they did not have the lawful authority to close his business under threat of arrest,

and that he was seeking to assert a legal challenge to their actions through legal counsel.

65. The First Amendment, in relevant part, provides that “Congress shall make no law

... abridging the freedom of speech.” U.S. Const. amend. I. The Fourteenth Amendment makes

this prohibition applicable to the states. See Fisher v. King, 232 F.3d 391, 396 (4th Cir. 2000).

66. Not only does the First Amendment protect freedom of speech, it also protects

“the right to be free from retaliation by a public official for the exercise of that right.” Suarez

Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000).

67. As the Attorney General pointed out in his press release when the WVBBC

dismissed the administrative proceedings against the Plaintiff, “[e]xercising one’s right to inquire

about the legal nature of an executive order should never result in the revocation of one’s license

to do business…” - much less physical arrest and incarceration.

68. Indeed, the Fourth Circuit has warned that Plaintiff possessed the "right to

question or challenge the authority of a police officer, provided that fighting words or other

opprobrious language is not used…” and that any resulting arrest under a general obstruction

statute is violative of the First Amendment. Id. ; see Graham , 831 F.3d at 188 ("Peaceful verbal

criticism of an officer who is making an arrest cannot be targeted under a general obstruction of

justice statute ... without running afoul of the First Amendment." (citation omitted)); cited by

Hupp v. State Trooper Seth Cook, 931 F.3d 307 (4th Cir. 2019)).

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69. The actions of arresting and incarcerating the Plaintiff as a result of his exercising

his protected free speech in inquiring about his legal rights and attempting to assert his legal

rights are actions which would “chill a person of ordinary firmness” from continuing to engage

in the said protected actions of inquiring about and asserting legal rights protected by the U.S.

Constitution.

70. Plaintiff’s protected free speech activity, as outlined above, was the substantial, if

not the sole, motivating factor in the retaliatory actions of arresting the Plaintiff and forcibly

closing his barbershop. The defendants expressed to the Plaintiff that he would be arrested if he

didn’t cease engaging in his protected free speech activity, and was in fact arrested for so doing.

71. Defendants Kinser, Robinson and Weidman acted under color of law and intended

to interfere with the Plaintiff’s First Amendment rights, as outlined herein.

72. Plaintiff has suffered substantial injury as a result, including both constitutional

injury, as well as other injuries, for which he is entitled to recover from the defendants.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff demands judgment against the Defendants as prayed for,

including:

A. That damages be awarded against the defendants in all counts outlined herein for

violation of the Plaintiffs’ civil rights, as well as an award by the Defendant for the costs of this

action, including reasonable attorney fees under 42 U.S.C. § 1988; and

B. Such other and further relief as this Court shall deem just and proper.

PLAINTIFF DEMANDS A TRIAL BY JURY

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WINERD “LES” JENKINS,

By Counsel

/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
[email protected]

for the Plaintiff

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