By Jake Zuckerman Staff writer for www.wvgazettemail.com
See Dashcam Video
Facing criminal convictions and a five to 10-year jail sentence imposed this month, a Calhoun County man’s lawsuit for excessive force against a West Virginia State Police officer continues.
A jury convicted Joshua Settle in March of attempting to disarm an officer, obstructing an officer, fleeing from an officer, battery on an officer and several related charges. Earlier this month, he was sentenced for five to 10 years, with credit for 785 days of time already served.
Both police and Settle generally agree that Settle, 21, fled from arrest in a vehicle before crashing, and resisted arrest in some capacity on April 19, 2017. However, Settle’s civil and criminal attorneys denied he ever attempted to disarm Trooper Nathan Scott Stepp.
Dashcam footage of the interaction played at the trial shows Stepp approach Settle’s overturned vehicle with his gun drawn instructing Settle to crawl out. Stepp eventually pulls Settle out by the head. Settle can be seen wriggling under the trooper, face down, while attempting to smoke a cigarette.
Stepp places him in a choke hold before placing him back face down on the ground. Settle puts his arms behind his back but appears to worm away from the officer.
"Move again, I break your finger," Stepp says.
"I can’t breathe," Settle says, about 10 seconds later.
The situation escalates as the two men move out of frame of the camera. Settle can be heard saying, "This ain’t right," while Stepp yells at him to give him his hand and says, "Understand me, I will shoot you."
After roughly a minute, the men then reappear. Settle has one cuff around his left wrist, with Stepp holding the other cuff in his hand. Stepp is seen pointing a chemical spray at Settle. They move off screen again. Stepp repeatedly asks Settle to comply, while Settle asks Stepp to stop hurting him.
Settle, still out of frame, can then be heard howling in pain.
"Don’t beat me in the head no more," Settle says, before yelling in pain again.
The audio then cuts out for about 50 seconds. Police said this happened because the microphone is wireless, and they were likely too far from the cruiser for the signal to hold.
"We believe the video exonerates Trooper Stepp and that Mr. Settle's actions resulted in injuries he received, and if he would have been compliant with Trooper Stepp's repeated verbal instructions to put his hands behind his back and comply with his lawful directives, the force of his resistance would have been reduced," said Maj. Joe White, director of the State Police's professional standards section, which investigates troopers' use of force.
According to the professional standards section's internal investigation, Settle resisted Stepp's attempts to handcuff him, ignored verbal commands and struggled physically. Stepp then "utilized several open hand strikes" to Settle's torso, pepper sprayed him, and struck his legs with a baton.
As the scuffle escalated, police say Settle attempted to wrestle Stepp to the ground, pulled on his holster and managed to unclasp it, and grabbed Stepp's pistol by the handle. At that point, Stepp struck Settle several times in the head with his baton before eventually handcuffing him.
These interactions cannot be seen on the dashcam footage.
In the State Police investigation, Settle told investigators he fled and resisted Stepp during the altercation, but was never asked anything about the allegation he attempted to disarm the trooper. White said he did not know why this didn't come up in the interview.
By Settle's account, as put forth in his lawsuit filed in federal court last summer, Stepp dragged Settle out of the wrecked vehicle by his face. Stepp placed Settle in a chokehold, threatened him, pepper sprayed him, and beat him with the night stick without justification or provocation.
Photographs contained in the lawsuit show blood over and around Settle's left ear, across the right side of his face, and around the collar of his shirt. The suit states Settle was airlifted to Charleston Area Medical Center, where he was diagnosed with an acute head injury, lacerations to the scalp and face requiring nine staples, cranial hematomas, a possible left wrist fracture, and a possible lung contusion.
At the criminal trial, Settle, who is currently incarcerated, did not testify in his own defense.
Russell Williams, a Charleston attorney who handles cases against police for the excessive use of force, said Settle's convictions are based on Stepp's false narrative, and that Settle never tried to disarm Stepp.
"This prosecution is based entirely on a web of lies told by Trooper Stepp - lies he began to tell immediately after this incident," Williams said. "Sadly, the state is more concerned with saving face and protecting one of their own, a trooper with a history of violence, than finding out the truth. I am confident the wrongful conviction of Mr. Settle will be overturned on appeal."
Daniel Minardi, a public defender who represented Settle, declined to comment on why his client did not testify in his own defense at trial. He said after the first day of a two-day trial, however, Settle allegedly failed a drug test, leading him to be taken off of house arrest and put into jail.
He said the criminal defense was based on the same theory as the civil suit - that Stepp acted with excessive force.
"I just don’t believe the officer, basically," he said.
White noted Settle's decision not to testify in his own defense.
"If it was off camera, it would be the trooper's word against Settle's, and if he was gonna try to say that the trooper was lying or not telling the truth, about the only way he would be able to do that is if he took the stand," he said.
In September 2018, Williams filed a separate lawsuit against Stepp and other officers, alleging the improper use of lethal force in the deadly shooting of a mentally ill Wood County man. That case is ongoing.
While Calhoun County Prosecutor Shannon Johnson is not involved with the civil case, she said the jury findings are an important consideration in the lawsuit.
"When civil cases are filed, attorneys tend to portray the facts in a light most favorable to their own clients, but after this case was presented to the jury in Calhoun County, and after 12 people had seen the dashcam footage, had seen the testimony from all the witnesses, they decided that Mr. Settle was guilty of all the offenses with which he was charged," she said.
Both Minardi and Williams said plans are in the works to appeal Settle's criminal conviction. Minardi filed a motion for a new trial, arguing Judge Anita Ashley gave the jury improper instructions. Specifically, Minardi argued Ashley improperly denied his request that she instruct the jury of a person's right to self defense against excessive force.
Ashley rejected the motion.