CHARLESTON, W.Va. -- The trial a Clendenin man sought after a West Virginia State Police trooper shot him in the head has been delayed because the trooper's lawyers appealed a federal judge's order saying the trooper doesn't have immunity and can be sued
Stephen Shawn Krein, 24, filed a lawsuit against Trooper L.W. Price, seeking damages after Krein was shot in 2008 while officers were attempting to serve an arrest warrant.
Krein survived the shooting, but has no recollection of the events surrounding the incident, according to documents filed in U.S. District Court. He is now confined to a wheelchair.
Earlier this week, Price's lawyers appealed U.S. District Judge John Copenhaver's June ruling that refused to throw out the case before trial, which had been set for July 2.
Attorneys for Price filed the appeal with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. Appeals are not generally permitted in civil cases until the case is finalized either by a court order or jury verdict.
However, under the law, in cases alleging excessive force against police officers, an immediate appeal is permitted on the issue of an officer's "qualified immunity."
The law allows for immediate appeal because the courts have said an officer should not be subjected to a trial if immunity applies.
Copenhaver ruled the trooper is not immune from standing trial, though, and found that the evidence is conflicting on whether the use of deadly force was justified.
"Whether Trooper Price believed that his [or another trooper's] safety was in danger is a genuine issue of material fact. The qualified immunity issue necessarily hinges on the excessive force inquiry and cannot be decided at this stage," Copenhaver wrote.
Lawyers for Stephen Krein said in a federal filing that two state troopers violated Krein's constitutional rights when they confronted him in a convenience store parking lot and opened fire on him as he attempted to escape in his truck.
Mike Clifford, Krein's lawyer, said in the lawsuit that Krein was not posing a deadly threat to the officers in his attempt to flee. The troopers violated Krein's Fourth and Fourteenth Amendment rights while trying to make the arrest, Clifford said in the suit.
The Fourth Amendment guards citizens against unreasonable search and seizures, and requires law enforcement agencies to obtain a warrant before making an arrest.
The 14th Amendment prevents the government from depriving a citizen of life, liberty or property without due process.
On Dec. 1, 2008, Price and Trooper W.S. Snyder had obtained a warrant for Krein's arrest on misdemeanor domestic violence charges, according to a statement Price gave investigators during an internal probe of the incident.