Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

STATE OF WEST VIRGINIA,

Plaintiff,

vs. Civil Action No.

TRAVIS W. BARKER,

Defendant.

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that:

In accordance with 28 U.S.C. 1442(a)(1) and 1446, Defendant Travis W. Barker

hereby gives notice of the removal of this action from the Circuit Court of Mercer

County, West Virginia, to the United States District Court for the Southern District of

West Virginia. In support of this Notice of Removal, the Defendant avers as follows:

1. On July 10, 2008, Defendant Travis W. Barker, a federal law enforcement

officer, was arrested by West Virginia State Trooper Claude Nathan Workman for

carrying a concealed weapon, and for assault on an officer. It was alleged that Trooper

Workman pulled over the Defendant for a routine traffic stop and discovered that he had

a concealed handgun, and that during his processing, Mr. Barker allegedly committed a

non-physical assault against Trooper Workman. Attached hereto as Exhibit “A” is the

Criminal Complaint against the Defendant, as well as the ensuing Motion to Dismiss,

Writ of Prohibition to the Circuit Court of Mercer County, and Order denying the Writ of

Prohibition and transferring to Circuit Court.

 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 2 of 14

2. On July 9, 2010, with the criminal charges still pending, the Defendant

filed a civil lawsuit against Trooper Workman, the West Virginia State Police, and the

Mercer County Commission in the Circuit Court of Mercer County, West Virginia,

alleging that Mr. Barker was wrongfully arrested, and that he was beaten by Trooper

Workman during processing, alleging that Trooper Workman wrongfully arrested and

beat Mr. Barker because he was having an affair with Workmanʼs wife. Attached hereto

as Exhibit “B” is a copy of the civil Complaint filed against Trooper Workman, the West

Virginia State Police, and the Mercer County Commission.

3. At the time of his arrest, Travis Barker repeatedly advised Trooper

Workman that he was a federal law enforcement officer and that he could carry a

concealed weapon under the Law Enforcement Officers Safety Act (“LEOSA”), a federal

statute enacted in 2004 and signed into law by President George W. Bush. However,

Trooper Workman refused to acknowledge LEOSA. The Prosecuting Attorney for

Mercer County also refused to acknowledge LEOSA, and continues still to acknowledge

LEOSA.

4. The U.S. Department of Justice, Bureau of Prisons, has upon inquiry from

the West Virginia State Police, provided proof that Travis Barker is a federal law

enforcement officer, and that he met each of the respective requirements for LEOSA

applicability.

5. On the date of his arrest, the Defendant was qualified under the federal

Law Enforcement Officers Safety Act (“LEOSA”) to carry a concealed weapon in any

state “notwithstanding any other provision of the law of any State or any political
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 3 of 14

subdivision thereof.”1 As required pursuant to LEOSA, he is (1) “an employee of a

governmental agency”; (2) “authorized by law to engage in or supervise the prevention,

detection, investigation, or prosecution of, or the incarceration of any person for, any

violation of law”; (3) who has “statutory powers of arrest”;2 (4) is “authorized by the

agency to carry a firearm”; (5) is and was “not the subject of any disciplinary action by

the agency”; (6) “meets standards, if any, established by the agency which require

[Defendant] to regularly qualify in the use of a firearm; and (7) is “not prohibited by

Federal law from receiving a firearm”. The U.S. Department of Justice has represented,

and maintains, that Plaintiff is qualified under LEOSA to carry a concealed weapon.

Attached hereto as Exhibit “C” is a Memorandum from the U.S. Department of Justice

which was distributed to its employees regarding the applicability of LEOSA.

6. As further required for compliance with LEOSA, at no time has Defendant

carried a concealed weapon while under the influence of alcohol or any other

hallucinatory drug or substance, and has always carried “the photographic identification

issued by the governmental agency for which he is employed as a law enforcement

officer (US BOP / US DOJ).

7. The undersigned counsel spoke with the U.S. Attorneyʼs Office, attorneys

for the U.S. Bureau of Prisons, as well as supervising attorneys at the West Virginia

Attorney Generalʼs Office, and none of the said entities can understand why the

Defendant is being prosecuted, nor why the county prosecutors are ignoring LEOSA.

1LEOSA, H.R. 218, was signed into law by President George W. Bush on July 22, 2004, and is codified
as 18 U.S. Code 926B.
2 See 18 U.S.C. § 3050 (authorizing US BOP employees to make arrests for various infractions of law).
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 4 of 14

8. Pursuant to 28. U.S.C. 1442(a)(1), where a criminal defendant in a state

court prosecution is a federal officer who has a colorable federal defense, the

prosecution can be removed, pursuant to 28 U.S.C. 1446, to federal court.

9. The Defendant Travis Barker undisputedly was a federal officer at the time

of his arrest. It further cannot be disputed that Mr. Barker has a colorable federal

defense, applicable due to his status as a qualifying federal officer: primarily, LEOSA.

10. There have been several 4th Circuit decisions dealing with 1442(a)(1). In

State v. Ivory, 906 F.2d 999 (4th Cir. 1990), the Court found that 1442(a)(1) did not apply

to a North Carolina state court prosecution of a member of the military for a traffic-based

criminal prosecution arising out of a collision while driving in a military convoy. In that

case, the Court held that although the defendant was a federal officer, there was no

colorable federal defense, and that therefore, 1442(a)(1) did not apply. “Many of the

facts in dispute here to not speak to the federal character of the incident and are simply

matters for the state courts to resolve.” Id. at 1002. “Under Mesa [the defendant] must

allege facts that would support a colorable immunity defense if those facts were true. Id.

Since under the facts of Ivory, federal immunity was not implicated for the traffic offense

which occurred in that case, removal was inappropriate under 1442. However, the

Court noted that:

Section 1442, of course, operates under the Supremacy Clause to

displace state interests in the prosecution of traffic offenses, but only to
the extent that its constitutionally-derived requirements are met. In the
usual case, where some special exigency exists, the state interest in
regulation of its highways must give way under Sec. 1442 to the federal
interests implicit in any defense of immunity. For example, state law will
not apply to federal officials “engaged in the performance of a public duty
where speed and the right of way are a necessity.” Lilly, 29 F.2d at 64.
However, Ivory has alleged nothing which justified his making the left hand
turn without yielding the right of way to oncoming vehicles. The convoy
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 5 of 14

was returning from a routine transport of marines; nothing resembling an

emergency existed. Ivory had no reason to accelerate through the
intersection. His orders were to maintain a minimum distance of at least
one-and-one-half truck lengths between vehicles. He was under no order
prohibiting vehicles in the convoy to separate more than a maximum
distance apart. There may, of course, be circumstances where military
drivers may properly invoke the removal provisions of Sec. 1442(a)(1).
We cannot hold, however, that the mere presence of a driver in a military
convey automatically gives rise to a colorable claim of immunity from local
traffic laws.”

Ivory, 906 F.2d 999 at 1002-1003. The Ivory Court cited Mesa v. California, 489 U.S.

121, 109 S.Ct. 959, 103 L.E.d.2d 99 (1989) as being on point:

In Mesa, United States Postal Service employees attempted to remove to

federal court their state criminal prosecutions for traffic violations which
arose in the course of their mail delivery duties. One employee had been
charged with misdemeanor-manslaughter after she struck and killed a
bicyclist with her mail truck. The second individual received a ticket for
speeding and failing to yield the right-of-way after his mail truck collided
with a police car. See California v. Mesa, 813 F.2d 960, 961 (9th Cir.
1987). The postal workers argued that they were entitled to remove under
the federal officer removal statute, 28 U.S.C. Sec. 1442(a)(1), because
“the state charges arose from . . . accident[s] . . . which occurred while
defendant[s] [were] on duty and acting in the course and scope of [their]
employment with the Postal Service.” Mesa, 109 S.Ct. at 962.
...

The Supreme Court held, however, that a “scope of employment” defense

was insufficient by itself to support removal. It stressed that Sec. 1442(a)
is a pure jurisdictional statute which requires averment of a colorable
federal defense in order to satisfy the requirement of Article III that a case
arise under the Constitution or laws of the United States. Id. at 964, 968.
Since defendants “ha[d] not and could not present an official immunity
defense to the state criminal prosecutions brought against them,” the
Court held that they were not permitted to remove their cases to federal
court. Id. at 967.

Ivory, 906 F.2d 999 at 1001.

11. The 4th Circuit reviewed a similar West Virginia case in Kolibash v.

Committee on Legal Ethics of the West Virginia Bar, 872 F.2D 571 (4th Cir. 1989),

where William Kolibash then-U.S. Attorney for the Northern District of West Virginia,
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 6 of 14

filed a notice of removal under 1442(a)(1) when the state bar brought disciplinary

proceedings against him which arose out of his duty as a federal officer. Ultimately, the

Court ruled that removal under 1442(a)(1) was proper, despite the District Courtʼs

refusal to accept jurisdiction. The Court noted that:

A federal courtʼs role under Sec. 1442 is similar to that of a federal court
sitting in diversity. See City of Aurora v. Erwin, 706 F.2d 295, 296-97 (10th
Cir. 1983). The federal officer removal statute permits a state action to be
adjudicated on the merits in a federal court “free from local interests or
prejudice,” Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657,
1664-65, 68 L.E.d.2d 58 (1981), and a federal officer is therefore
guaranteed a federal forum in which federal rules of procedure will be
applied.

Kolibash, 872 F.2D 571 at 576 (emphasis added). The Court also noted that “[t]his

Court has held that the right of removal conferred by Sec. 1442(a)(1) is to be broadly

construed. North Carolina v. Carr, 386 F.2d 129 (4th Cir. 1967). See also Nationwide

Investors v. Miller, 793 F.2d 1044, 1045 (9th Cir. 1986); Overman v. United States, 563

F.2d 1287, 1290-91 (8th Cir. 1977).” Kolibash, 872 F.2D 571 at 576. Furthermore, “a

federal forum should not be frustrated by a ʻnarrow, grudging interpretationʼ of the

statute. Willingham, 395 U.S. at 407, 89 S.Ct. at 1816.” Kolibash, 872 F.2D 571 at 576.

In deciding that the proper forum for the state action against Mr. Kolibash was federal

court, the Court held that “[t]he removal statute clearly covers all cases where federal

officer can raise a colorable defense arising out of their duty to enforce federal law.

Kolibash, 872 F.2D 571 at 574 (quoting Willingham v. Morgan, 395 U.S. 402, 406-07, 89

S.Ct. 1813, 1815-16 (1969). In deciding the case, the Kolibash Court held that:

It is not necessary for us to decide whether immunity attaches to this case

and if it does to what degree. At the very least, a colorable claim of
immunity exists, the validity of which should be judged by federal
standards in a federal district court. See Willingham, 395 U.S. at 406-07,
89 S.Ct. at 1815-16.
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 7 of 14

Kolibash, 872 F.2D 571 at 575. Additionally, the Court noted that the “Theory of

Protective Jurisdiction” is relevant to a 1442 analysis:

Finally, although we do not rely upon the notion of “protective jurisdiction”

to sustain removal in this case, we do note that many of the federal
interests underlying that theory are particularly relevant to the instant
appeal See Schumacher v. Beeler, 293 U.S. 367, 374, 55 S.Ct. 230, 233,
79 L.Ed. 433 (1934). See also Note, The Theory of Protective Jurisdiction,
57 N.Y.U.L.Rev. 933 (1982). Kolibashʼs alleged misconduct, for example,
arose out of a federal grand jury drug investigation and a subsequent
criminal trial in federal district court. Significant federal interests are
therefore involved regardless of whether Kolibash has a federal defense to
the state professional disciplinary proceeding. Compare Mesa v.
California, 489 U.S. 121, 109 S.Ct. 959, 103 L.E.d.2d 99 (1989) (no
federal interest in allowing federal postal employees to remove to federal
district court state criminal prosecutions brought against them for traffic
violations, including misdemeanor-manslaughter, committed while on
duty).

Kolibash, 872 F.2D 571 at 576.

12. In the case sub judice, there does exist a colorable federal defense to the

state criminal prosecution of Defendant Travis Barker. There is a federal statute,

enacted by Congress and signed by President Bush, which authorized the Defendant,

as a federal law enforcement officer, to carry a concealed weapon while off-duty,

notwithstanding any state or local law to the contrary. As a federal law enforcement

officer, Mr. Barker has off-duty arrest powers by federal statute.3 To allow him the ability

to enforce federal law and to protect himself, federal law allows him to have a concealed

handgun in furtherance of his federal duty to enforce the law (LEOSA). In defiance and

disregard of this federal law, Mercer County prosecutors are prosecuting the Defendant,

all-the-while claiming ignorance of LEOSA.

3 See 18 U.S.C. § 3050 (authorizing US BOP employees to make arrests for various infractions of law).
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 8 of 14

13. The Prosecuting Attorney of Mercer County is apparently alone in his

ignorance and defiance of LEOSA. Even the state of California has issued a written

memorandum from the California Attorney Generalʼs office noted that LEOSA overrides

any local or agency internal policy regarding off-duty carry by police officers. Both the

leadership of the West Virginia State Police and the West Virginia Attorney Generalʼs

Office recognizes and respects LEOSA.4 According to the West Virginia State Policeʼs

website, current or retired law enforcement officers are exempt from having to obtain a

concealed weapon permit. From the West Virginia State Policeʼs “Frequently Asked

Questions” page on their website:

Q. I am a police officer from another state who will be traveling through

West Virginia, may I lawfully carry my service weapon?

A. As of July 22, 2004, federal law permits any qualified current or retired
law enforcement officer to carry a concealed firearm in any of the 50
states. Officers must carry identification issued from the agency from
which they are employed or retired while possessing the firearm. Retired
members from states other than West Virginia must carry proof that they
have met their respective state’s standards for training and qualification on
the firearm which they carry within one year of the date that they are
carrying the firearm. Certain other restrictions apply. Please click here to
view the complete text of the new law.

See West Virginia State Police Frequently Asked Questions, attached hereto as Exhibit

“D”.5 Additionally, the West Virginia Attorney Generalʼs Office, in their publication, “On

the Mark: A Guide to Concealed Weapons Laws of West Virginia,” devoted 4 out of its

12 pages to LEOSA. A copy of said publication is attached hereto as Exhibit “E”.

4 See http://ag.ca.gov/firearms/forms/pdf/leosiss.pdf
5 See http://www.wvstatepolice.com/legal/faq's.html
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 9 of 14

14. Additionally, Travis Barker has another colorable federal defense to

prosecution, 18 U.S.C. 926A, which is also detailed in the West Virginia Attorney

Generalʼs Guide to the Concealed Weapons Laws of West Virginia, in On the Mark,

provides that:

18 U.S.C. § 926A. Interstate transportation of firearms

Notwithstanding any other provision of any law or any rule or regulation of

a State or any political subdivision thereof, any person who is not otherwise
prohibited by this chapter from transporting, shipping, or receiving a firearm
shall be entitled to transport a fi rearm for any lawful purpose from any place
where he may lawfully possess and carry such fi rearm to any other place
where he may lawfully possess and carry such firearm if, during such
transportation the firearm is unloaded, and neither the firearm nor any
ammunition being transported is readily accessible or is directly accessible
from the passenger compartment of such transporting vehicle: Provided,
That in the case of a vehicle without a compartment separate from the
driverʼs compartment the firearm or ammunition shall be contained in a
locked container other than the glove compartment or console.

Thus, pursuant to federal law, and pursuant to West Virginiaʼs only official guide to its

concealed weapons laws, an unloaded handgun without readily accessible ammunition

can be transported in a vehicle and no crime is committed. No ammunition was found

or seized with Mr. Barkerʼs unloaded handgun. Therefore, even if Mr. Barker did not

qualify under LEOSA, no crime would have been committed. Unfortunately for Mr.

Barker, the county prosecutor completely ignores federal law.

15. Mr. Barker is not getting a fair opportunity at presenting federal defenses

in state court, where prejudice and local interests have been at play. After moving to

dismiss the charges based on LEOSA (a copy of the Motion to Dismiss is attached

hereto as a part of Exhibit “A”), one magistrate judge replied that, “I was a former police

officer and I want to see this case go to trial,” refusing to even address legal arguments,

or even to issue an order in writing. The local circuit court judges have refused to reign
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 10 of 14

in the prosecutor, and have now recused themselves, transferring the case to a circuit

judge in a neighboring county. Upon information and belief, the local detachment of the

state police and the county prosecutors have developed a personal animosity against

Mr. Barker due to his civil lawsuit pending against them, and due to the fact that he

allegedly had an affair with Trooper Workmanʼs wife. The West Virginia State Police

sent an investigator to obtain Mr. Barkerʼs employment files with the U.S. Department of

Justice - not during the criminal investigation, but rather after Mr. Barker filed a civil

lawsuit almost two years after Mr. Barkerʼs arrest. Mr. Barker voluntarily authorized the

DOJ to release his employment files to the investigator, all of which proved the

applicability of LEOSA. In contrast, there has been no disciplinary action taken against

Trooper Claude Nathan Workman for pulling over and arresting, under color of law, the

man whom he accuses of having an affair with his wife, therein abusing his public

position to achieve personal revenge. Unbelievably, he was supported in this endeavor,

and continues to have support from state and local authorities. There was however, an

FBI investigation opened against Trooper Workman, the details of which have not been

released. See FBI investigating state trooper accused in beating, Charleston Gazette,

July 24, 2010.6

16. The “Theory of Protective Jurisdiction” is also relevant to Mr. Barkerʼs

case. The federal government has an interest in retaining protective jurisdiction over

LEOSAʼs application to federal law enforcement officers. There is nothing to stop a

state court from refusing to acknowledge LEOSA. If this happens, Mr. Barker, or any

other federal law enforcement officer, will have no avenue for relief but to appeal to the

6See http://wvgazette.com/News/201007240242
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 11 of 14

West Virginia Supreme Court of Appeals. Only the U.S. Supreme Court could protect

federal interests in such a scenario. Proper jurisdiction should lie in the U.S. District

Court where the 4th Circuit could address any appeals from the District Courtʼs

decision.

17. Travis Barkerʼs case is not a situation where a federal employee is

seeking federal immunity for traffic offenses committed while on duty. Rather, it is

similar to U.S. Attorney Kolibash being made a defendant in state court for undertaking

actions authorized by federal law. In both the case sub judice and the Kolibash case,

the defenses proffered to activate removal under 1442 both directly affect federal

interests. Travis Barker, similar to Mr. Kolibash, is a federal officer, authorized and

obligated by federal law to enforce federal law. In both instances, there was a state

actor who claimed that, in carrying out actions authorized to federal officers by federal

law, state crimes or administrative offenses were committed and were subject to

process in West Virginia state courts. In both cases, there existed and were asserted

colorable federal defenses. In Kolibash, the federal defense was federal prosecutorial

immunity. In the case sub judice, the federal defense is LEOSA. Whether or not the

defenses will ultimately prevail on the merits is not at issue under 1442 and 1446. It

only matters that there exist a colorable claim to a federal defense. See Kolibash, 872 F.

2D 571 at 575 (“It is not necessary for us to decide whether immunity attaches to this

case and if it does to what degree. At the very least, a colorable claim of immunity

exists, the validity of which should be judged by federal standards in a federal district

court.”). Travis Barker clearly has a colorable claim to a federal defense, which should

be judged within the federal courts, and not in state courts which may be subject to local
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 12 of 14

interests or prejudice (e.g., civil lawsuit between the Defendant and the State and

County), which in this case have already been displayed with the utter disregard for

federal law and interests.

18. Lastly, consolidated with the concealed weapon prosecution, are counts

for assault on an officer, speeding and having an unsigned registration card. The

assault on an officer charge allegedly occurred while the Defendant was chained to the

floor of the Princeton state police detachment while under arrest for the concealed

weapons charge. Therefore, LEOSA is a complete and valid defense to the assault

charge. The federal defenses of LEOSA and 18 U.S.C. 926A also preclude prosecution

for assault on an officer, and at the very least would require suppression of any

testimony by Trooper Workman that there was an alleged “assault”. Since the arrest

was in violation of federal law, it was an illegal arrest. As such, Mr. Barker could have

forcibly resisted his detainment if he had chosen to do so and was certainly entitled to

give Trooper Workman a “threatening” look. It was only alleged that he “assaulted”

Trooper Workman without any physical contact. In other words, he gave Trooper

Workman “the evil eye”. The two counts were charged as a consolidated prosecution

and have been prosecuted in a consolidated manner for over two years now, and were

transferred together to Circuit Court. Thus, this Court should jurisdiction over the

consolidated prosecution rather than just the concealed weapon charge. The

Defendant is unconcerned about the disposition of the speeding charge and the

unsigned registration charge, since they are minor traffic offenses. In the event this

Court chooses not to keep them consolidated with the other charges within the

jurisdiction of this Court, the Defendant will voluntarily pay the fines.
 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 13 of 14

19. After filing this Notice of Removal with this Court, the Defendant will

promptly file a copy of the same with the Clerk of the Circuit Court of Mercer County,

West Virginia, and will serve written notice of this Notice of Removal on counsel for the

Plaintiff in accordance with 28 U.S.C. 1446(d).

WHEREFORE, the Defendant prays that this cause proceed in this Court as an

action properly removed thereto.

This the 22nd day of December, 2010.

TRAVIS BARKER
By Counsel

/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
Martha J. Fleshman (WV Bar No. 8542)
JOHN H. BRYAN, ATTORNEYS AT LAW
611 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
[email protected]

for the Defendant

 Case 2:10-cv-11111 Document 930 Filed 12/22/10 Page 14 of 14

CERTIFICATE OF SERVICE

I hereby certify that on December 22nd, 2010, I electronically filed the foregoing
NOTICE OF REMOVAL with the Clerk of the Court using the CM/ECF system and
served the same on plaintiff by U.S. Mail delivery addressed as follows:

Scott Ash, Esq.

Prosecuting Attorney of Mercer County
Mercer County Courthouse
1501 West Main Street
Princeton WV 24740

/s John H. Bryan