Case 2:22-cv-00309 Document 1 Filed 07/29/22 Page 1 of 14 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DENNIS F. LANHAM,

Plaintiff,

vs. Civil Action No. 2:22-cv-00309

M.C. FORTIER, individually,

R.C. MONTAGU, individually,
M.W. OAKLEY, 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, false arrest and use of excessive force against the Plaintiff in

Nitro, Kanawha County, West Virginia, on or about August 1, 2020 within the Charleston

Division of the Southern 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, Dennis F. Lanham, was at all times relevant hereto a resident of

Kanawha County, West Virginia.

2. Defendant police officer M.C. Fortier was at all times relevant hereto a sworn

police officer employed by the Nitro Police Department and was at all times relevant hereto

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acting under color of law. He is named herein in his individual capacity, having an address of 497

1st Avenue S., Nitro, West Virginia 25143.

3. Defendant police officer R.C. Montagu was at all times relevant hereto a sworn

police officer employed by the Kanawha County Sheriff’s Office and was at all times relevant

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

of 301 Virginia Street, East, Charleston, West Virginia 25301.

4. Defendant police officer M.W. Oakley was at all times relevant hereto a sworn

police officer employed by the Kanawha County Sheriff’s Office and was at all times relevant

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

of 301 Virginia Street, East, Charleston, West Virginia 25301.

FACTS

5. On August 1, 2020, the Plaintiff was shopping in the Walmart store located at 100

Nitro Marketplace, Nitro, Kanawha County, West Virginia. He was shopping for a sling for his

shotgun. He had already been to Rural King in search of a sling. However, they didn’t have one

that would fit the shotgun. Thus Plaintiff decided to try the sporting goods section at Walmart.

6. It was necessary for Plaintiff to have the shotgun in his possession so that he

would be able to fit-test the available sling options, in order to determine if they would fit the

shotgun.

7. Plaintiff did not own or possess a case to carry the shotgun in, so he carried the

unloaded shotgun in his hands in a non-threatening manner. Plaintiff was also legally openly

carrying a holstered pistol on his side.

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8. Upon arrival at the Walmart entrance doors, Plaintiff observed no signs indicating

that the store had a no firearms policy. To the contrary, Plaintiff was aware that the store sold

firearms and firearms accessories its sporting goods section.

9. Upon entering the store, the Walmart employee door greeter observed Plaintiff

enter with the shotgun. The door greeter communicated no objection to Plaintiff entering with the

shotgun, but did hand Plaintiff a face mask due to their covid policies. Plaintiff proceeded to the

sporting goods section of the store.

10. While in the sporting goods section, Plaintiff was approached by a store manager

who advised him that, in her opinion, it was against the law for him to have the shotgun in the

store. Plaintiff explained that he was looking to fit a sling to the shotgun. She proceeded to

instruct him that it was illegal to be in the store with a shotgun and asked him to take the shotgun

back to his car, after which she said he could continue shopping.

11. Plaintiff expressed disagreement with the manager that state law prohibited his

bringing a shotgun into the store for purposes of buying a sling from the store’s firearms-specific

production section. The manager responded that, he didn’t have to leave the store, but that he had

to put the shotgun in his car.

12. Around this time, a Walmart employee called 911 and said that they “just had a

guy enter our store with a shotgun and pistol” and that “management is talking to him and

requesting that we get an officer up here.”

13. Another Walmart employee also called 911 and said, “we have a gentleman in our

store that is carrying a shotgun and he says it's not loaded,” but that they asked him to leave, but

that was refusing to leave. She told the 911 dispatcher that he was talking to his manager,

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standing near the counter of the sporting goods section, and that he didn’t look aggressive, and

that he had the shotgun resting on his shoe. There were no reports relayed to the defendant

officers of Plaintiff threatening any individual, nor acting in an unsafe manner with a firearm.

14. The store manager talking to the Plaintiff never asked him to leave the store, or

expressed that Plaintiff was being trespassed from the store, but rather told him that he couldn’t

legally possess a shotgun inside the store. She stated that she had called for the police to come

talk with him. Plaintiff advised the manager that he would like to talk to the police so they could

sort out the disagreement about the legality of Plaintiff’s possession of an uncased shotgun, and

continued conversing with the manager until the arrival of law enforcement.

15. During this time, several shoppers and employees were also present while

Plaintiff and the store manager were conversing. There was no indication that anyone felt

threatened by Plaintiff’s presence in the store. At no time did Plaintiff threaten anyone, or violate

any law.

16. Soon thereafter, officers from the Kanawha County Sheriff’s Office, as well as the

Nitro Police Department, arrived in the sporting goods section of the store.

17. At the time the officers arrived, Plaintiff was standing in an isle of of the sporting

goods section, with the muzzle of the unloaded shotgun resting on his shoe, in a casual manner,

still engaged in discussion with the store manager.

18. Upon the officers announcing their presence, the defendant officers immediately

seized and held Plaintiff at gunpoint. Plaintiff immediately complied with the demands they

issued. Surveillance video footage shows Plaintiff slowly leaning his shotgun against one of the

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shelves, standing back up, raising his arms and hands into the air, and turning around, as ordered

by the defendant officers.

19. Defendant Montagu, of the Kanawha County Sheriff’s Office, approached

Plaintiff from the rear, holding him at gunpoint with an AR-15. He ordered Plaintiff to walk

forward, with his hands remaining in the air, towards the wall in front of him. Plaintiff fully

complied and did so, walking well away from the shotgun, which was still leaning against the

shelf.

20. As Plaintiff reached the rear wall of the store, as directed by the officers,

Defendant Montagu tased Plaintiff in the rear of his body, the barbs hitting him in the buttocks,

partially hitting his wallet. Plaintiff was not resisting in any way and was fully compliant at the

time he was tased.

21. The defendant officers then physically seized and arrested the Plaintiff,

handcuffing him. The store manager then approached the handcuffed Plaintiff and said, “it’s not

you that’s scary - you look sweet and innocent - it’s the gun that makes you scary; you’re

pleasant, but it’s the gun that’s scary.”

22. At no point did any of the defendant officers ask the Plaintiff to leave the

premises. At no point did the officers give the Plaintiff the opportunity or option to leave the

premises before being seized, tased and arrested.

23. At no point did any of the defendant officers witness a Walmart employee ask the

Plaintiff to leave the premises.

24. At no point did any of the defendant officers observe the Plaintiff violate any law

or act in a way that would indicate he posed a threat to any individual.

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25. Plaintiff was then handcuffed and transported for processing at the Nitro Police

Department by Defendant Fortier.

26. Plaintiff was subsequently charged by Patrolman M.C. Fortier with violating

Municipal Ordinance 533.03(c)(2), (Trespass on Property Other than Structure or Conveyance).

Plaintiff was ultimately incarcerated in the local regional jail until the following day when he

was released on bond. The said charge was filed despite Plaintiff not being expressly told to

leave the premises, and despite the fact that the Walmart store is legally defined as a “structure or

conveyance” thus making Municipal Ordinance 533.03(c)(2) completely inapplicable. The

charges were later dismissed.

27. Due to the publicity surrounding his arrest, Plaintiff was placed on administrative

leave by his employer the same day he was released from custody, and was never asked to return

to his employment. Plaintiff subsequently had to resort to drawing unemployment when, prior to

his being falsely arrested, he was earning $19.00 per hour. Plaintiff applied for, and was denied,

several jobs before finally securing employment with much lower pay than his original job.

28. Plaintiff was also needlessly placed in the national gun violence archive as a result

of his arrest, despite the fact that there was never any reason to believe that Plaintiff had engaged

in, or threatened, any violence. Rather, the Walmart store manager was scared of firearms, and

the responding officers felt a need to do something, despite no crime having been committed.

COUNT ONE - UNREASONABLE SEIZURE UNDER 42 U.S.C. 1983

VIOLATION OF THE FOURTH AMENDMENT
(False Warrantless Arrest)

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

restated herein.

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30. On August 1, 2020, the defendant police officers, acting under color of law,

jointly participated in, and effected, the warrantless arrest of the Plaintiff for the alleged crime of

trespass in violation of City of Nitro Municipal Ordinance 533.03(c)(2), (Trespass on Property

Other than Structure or Conveyance).

31. Defendants seized the Plaintiff and arrested him without a warrant and knowingly

did so without probable cause to believe that Plaintiff had committed the crime for which he was

charged, or any other criminal offense.

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

defendants’ joint knowledge, as well as those available to the defendant officers individually,

were not sufficient to warrant a reasonably prudent police officer to believe that under the

circumstances present at the time, that Plaintiff had violated any criminal statute or committed

any criminal offense.

33. The criminal complaint submitted by Defendant Fortier to the Nitro Municipal

Judge, instituting the criminal prosecution of the Plaintiff for violation of the municipal

ordinance of trespassing, alleged that following Plaintiff’s initial detainment, Plaintiff identified

himself and “advised he went in the store to buy a sling for his shotgun, and began arguing with

the manager over him legally being able to have his firearms in the store.” Fortier also noted that

he spoke with the store manager, “who was visibly upset” and who “advised she observed Mr.

Lanham walking through the store with the shotgun, and approached him and told him he had to

leave the store on multiple occasions . . . in which he refused.” Fortier’s narrative did not contain

any allegations establishing that Fortier had witnessed any such refusal, or that Fortier had asked

Plaintiff to leave, or given him the option of leaving the store.

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34. Although Fortier charged Plaintiff with a violation of the Nitro municipal

ordinance of misdemeanor trespass, Fortier likewise would have lacked probable cause to arrest

and charge Plaintiff the misdemeanor offense of trespass as found in West Virginia Code. W. Va.

Code § 61-3B-2 provides that for conviction of trespass in a structure or conveyance, the

potential sentence is only a fine of not more than $100.00. There is no possibility of incarceration

under the statute. As the West Virginia Supreme Court observed in State ex rel. Forbes v.

McGraw, 183 W.Va. 144, 394 S.E.2d 743 (W. Va. 1990), pretrial incarceration of a defendant for

an alleged standalone violation of § 61-3B-2 would be improper because incarceration is not a

potential penalty of the offense. § 61-3B-2 also expressly requires that the suspect refuse to leave

the premises. Fortier never asked, or gave Plaintiff the opportunity, to leave the premises.

35. Nor could Fortier have established that Plaintiff committed the crime of

obstruction in violation of WV Code § 61-5-17(a), as at no time did Plaintiff fail to do exactly as

ordered by any law enforcement officer.

36. No reasonable police officer in either of the defendant police officers’ positions on

August 1, 2020 would have believed that probable cause existed to make a warrantless arrest of

the Plaintiff where he had not been given the option to leave, or ordered to leave and refused, the

store, and where Plaintiff had otherwise violated no law. A reasonable officer would have asked

Plaintiff to leave, or escorted him out of the store.

37. Plaintiff suffered damages, for which he is entitled to recover.

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COUNT TWO - EXCESSIVE FORCE UNDER 42 U.S.C. 1983

VIOLATION OF THE FOURTH AMENDMENT

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

restated herein.

39. On August 1, 2020, as more explicitly described above, Defendant Montagu,

under color of law, engaged in an excessive use of violent physical force against the Plaintiff

when he tased him unnecessarily.

40. At the time Plaintiff was tased, his hands were in the air, the shotgun was no

longer in his possession, and he had walked to the wall, as directed by the defendant officers. He

had fully complied with their directives and objectively gave the officers no indication that he

posed a threat to anyone. No objectively reasonable police officer could have perceived the

Plaintiff as posing an immediate threat to the safety of any individual. He was compliant and was

not physically resisting.

41. The Fourth Amendment prohibits police officers from "using excessive force to

seize a free citizen." Jones v. Buchanan , 325 F.3d 520, 527 (4th Cir. 2003) ; Graham v. Connor ,

490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Rather, police officers are

constitutionally permitted to use only that force which is reasonable under the circumstances. In

determining issues of excessive force, the courts look to several factors, including "the severity

of the crime at issue," whether the "suspect pose[d] an immediate threat to the safety of the

officers or others," and whether the suspect was "actively resisting arrest or attempting to evade

arrest by flight." Graham , 490 U.S. at 396, 109 S.Ct. 1865 ; Jones , 325 F.3d at 527. The Fourth

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Circuit has also held that the extent of the Plaintiff’s injuries are to be considered as well.

Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994).

42. Here, Plaintiff had committed no crime, and while the officers had been called to

the location by employees of Walmart, there was no indication that Plaintiff had committed any

crime at all, much less a serious crime. There was no allegation that he was a physical threat to

any individual. Plaintiff was not subsequent charged with, or alleged to have committed, any

crime, other than trespassing. The trespassing charge was subsequently dismissed.

43. The defendant police officer is not entitled to qualified immunity. There are

numerous examples in the case law of the Fourth Circuit establishing that the use of violent

physical force under similar circumstances as occurred here was unreasonable. In Yates v. Terry,

817 F.3d 877 (4th Cir. 2016), the Court described many different similar examples of

unreasonably physical force, establishing that as of 2008 that it was clearly established that a

police officer was not entitled to use unnecessary, gratuitous, or disproportionate force by

repeatedly tasing a nonviolent misdemeanant who presented no threat to the safety of the officer

or the public and who was compliant and not actively resisting arrest or fleeing. See Meyers v.

Baltimore County, 713 F.3d 723, 734–35 ; Jones 325 F.3d at 532–34 ; Bailey v. Kennedy, 349

F.3d 731, 745 (4th Cir. 2003) ; Rowland, 41 F.3d at 174 ; see also Parker v. Gerrish, 547 F.3d 1,

9–11 (1st Cir.2008) ; Casey, 509 F.3d at 1282, 1284–86.

44. The Court further noted that, “though our decisions in Meyers, Bailey, and Jones

dealt with individuals who were secured when they were subjected to excessive force, our

precedent nonetheless provided Terry with fair notice that the force he used against Yates under

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the facts of this case was unconstitutionally excessive.” Yates v. Terry, 817 F.3d 877 (4th Cir.

2016).

45. In addition to the wealth of Fourth Circuit case law establishing the

unreasonableness of unnecessary violent physical force, the Court has also held that “tasing

suspects after they have been secured, see Meyers, 713 F.3d at 734 ;12 Bailey, 349 F.3d at 744–

45, and that punching or pepper spraying suspects in response to minimal, non-violent resistance,

see Park, 250 F.3d at 849–53 ; Rowland, 41 F.3d at 172–74, constitute excessive force.” Estate of

Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 904 (4th Cir. 2016).

46. To the contrary, Plaintiff offered absolutely no resistance, and was tased

unnecessarily. The unreasonableness of tasing the Plaintiff is demonstrated by the fact that the

Kanawha County Sheriff’s Office has no record of any employee ever having tased the Plaintiff

on August 1, 2020. In response to a FOIA request seeking the identity of the officer who tased

the Plaintiff, and any documentation pertaining to the incident, they responded that they had no

records regarding the incident.

47. Also corroborating the fact that tasering the Plaintiff was unnecessary, the

criminal complaint written and signed by Defendant Fortier stated that, “A Deputy with the

Kanawha County Sheriff’s Office encountered the [Plaintiff] first, and was able to detain him

without incident.” The narrative mentioned nothing about the need for any use of force, nor the

application of any use of force, including tasering, against the Plaintiff. Indeed, the narrative

claimed that no incident occurred, much less a taser deployment.

48. Plaintiff suffered harm, including personal injury, extreme emotional distress,

severe pain, attorney fees and expenses, and is entitled to recover for the same.

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COUNT THREE - UNREASONABLE SEIZURE UNDER 42 U.S.C. 1983

VIOLATION OF THE FOURTH AMENDMENT
(Malicious Prosecution)

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

restated herein.

50. In the recent Supreme Court opinion in Thompson v. Clark, 596 U.S.

(2022), the Court clarified the application of malicious prosecution claims under Section 1983.

The Court held that a plaintiff in a Section 1983 malicious prosecution claim is not required to

show that his criminal prosecution ended with an affirmative indication of his innocence. Rather,

a plaintiff only needs to show “that his prosecution ended without a conviction.”

51. Plaintiff was prosecuted by Patrolman M.C. Fortier with violating Municipal

Ordinance 533.03(c)(2), (Trespass on Property Other than Structure or Conveyance). Plaintiff

was ultimately detained until the following day when he was released on bond. This charge was

filed despite Plaintiff not being expressly told to leave the premises, and despite the fact that the

Walmart store is legally defined as a “structure or conveyance” thus making Municipal

Ordinance 533.03(c)(2) completely inapplicable. The charges were later dismissed.

52. During the processing of Plaintiff’s arrest, Defendant Fortier expressed to Plaintiff

that even though it was legal for him to openly possess and carry firearms in West Virginia, that

he needed to charge him with something just by virtue of the fact that they responded and the

media began to report on it.

53. During the litigation of the criminal charge, Plaintiff retained the undersigned

counsel, who served a FOIA request on the City of Nitro, requesting the video footage of the

incident, which they had obtained from Walmart. In response to the FOIA request, Defendant

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Fortier expressed to Plaintiff that since he went to a lawyer, he was no longer going to agree to

the dismissal of the frivolous prosecution, which he had previously intended to do.

54. Eventually, the charge was dismissed when the prosecuting attorney and

municipal judge realized that Plaintiff could not have committed the charged offense. However,

at the urging of Defendant Fortier, the dismissal of the frivolous prosecution was needlessly

delayed, causing unnecessary additional damage to the Plaintiff.

PRAYER

WHEREFORE, based on the above stated facts, the Plaintiff respectfully requests that

this Honorable Court award:

1. Damages against the defendants in an amount to be determined at trial which will

fairly and reasonably compensate the plaintiffs for all compensatory damages to be proven at

trial;

2. Punitive damages against the individual defendants in an amount to be determined

at trial; and

3. Reasonable attorney fees and costs.

PLAINTIFF DEMANDS A TRIAL BY JURY

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DENNIS LANHAM,

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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