Clark man appeals suit against county, sheriff’s office

Published 9:36 am Friday, February 22, 2019

A Winchester man has appealed the dismissal of a lawsuit against Clark County, Sheriff Berl Perdue Jr. and Deputy Lee Murray to the U.S. Court of Appeals.

David Jones filed the original complaint in 2015 and an amended complaint in 2017 alleging his constitutional rights were violated after he was wrongfully accused of possessing child pornography and remained incarcerated for more than a year on the charges, which were ultimately dismissed.

The case was most recently heard by U.S. District Judge Robert Wier, who upheld the ruling by a lesser court to dismiss the case.

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According to the lawsuit, on Oct. 13, 2013, during an investigation of Internet child pornography, the Lexington Metro Division of Police identified a Clark County IP address as one that potentially downloaded a 39-second video of child pornography.

Lexington police notified Murray of the finding, who obtained an affidavit and confirmed the IP address belonged to Jones.

In a search of Jones’ property, deputies confiscated as evidence multiple electronic devices, including Jones’ cell phone, tablet, modem, printer and DVDs.

Jones was arrested Oct. 26, 2013, and charged with promoting a sexual performance by a minor under age 16.

According to Sun archives, LMPD noted the video was downloaded from a person-to-person file-sharing website called Ares. The video, according to the citation, showed an underage girl engaged in intercourse with an adult male.

In an interview with detectives, Jones said no one had the passwords to his tablet or modem and no one else had used his cell phone. He said he was home alone on Oct. 11, the date which the video was allegedly downloaded, and denied downloading any child pornography.

A not guilty plea was entered for the felony charges in November 2013 and Jones was indicted by the Clark County Grand Jury in December 2013.

In the lawsuit, Jones alleges deputies did not search his devices and no forensic analysis on the devices was performed until November 2014, when an expert hired by Jones’ attorney examined the devices and no evidence of child pornography was found.

Jones was released from jail Dec. 15, 2014, and his charges were dismissed in April 2015.

“For 14 months Jones endured the … incarceration for a heinous crime he did not commit,” according to the suit.

The suit alleges Jones’ Fourth, Fifth and Fourteenth Amendment rights were violated in the course of the arrest and investigation.

Jones asked for compensation for monetary damages including loss of wages, deprivation of liberty and for past and future mental pain and suffering.

In May 2018, Perdue, Murray and the county made a motion to dismiss the charges.

An opinion signed by Wier Feb. 14 upheld a former judgment to dismiss the suit.

Wire wrote that the county and sheriff’s office met its burden for probable cause based on the evidence of the video being downloaded to Jones’ IP address.

“Law enforcement, simply put, ‘had no duty to investigate further once probably cause was established,’” Wier wrote. “A requirement to ‘sift through’ evidence ‘for potentially exculpatory’ information, in this context, ‘would waste valuable time and resources and impeded the police’s ability to make a timely arrest.’”

Additionally, Wier noted Perdue and Murray are protected from such suits in their individual capacities, writing, “Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

In his conclusion, Wier called Jones’ claims were “dramatic.”

“The court shares regret over any day unnecessarily spent by a person in custody,” he wrote. “Here, the pre-trial wheels — an apparatus involving not only law enforcement but also the lawyers for sides and the state court — turned slowly. Jones has reason to feel bruised but the ultimate course of the case. That does not mean he has a valid constitutional or state claim. There was probably cause for the prosecution and the Commonwealth ultimately dismissed because it thought it did not have enough evidence to convict.”

Feb. 15, Jones appealed the most recent ruling to the U.S. Court of Appeals.

Jones has also previously sued the Clark County Detention Center over a $4,000 bill for his 14-month incarceration. That case was ultimately dismissed by U.S. District Judge Joseph Hood and the U.S. Court of Appeals upheld that decision in 2017.

About Whitney Leggett

Whitney Leggett is managing editor of The Winchester Sun and Winchester Living magazine. To contact her, email or call 859-759-0049.

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