(The following story by Rusty Marks appeared on the West Virginia Gazette website on March 9, 2009.)
CHARLESTON, W.Va. — A railroad engineer forced to take a breath test for alcohol after a fatal train accident in Montgomery is suing Montgomery police and the Kanawha County Sheriff’s Department in federal court.
CSX train engineer Rick L. Chapman and the union that represents rail workers claim the alcohol test violated federal railway law and Chapman’s constitutional rights.
Just before 5 p.m. on June 11, 2007, Chapman was running a train from Russell, Ky., to Hinton when he spotted a man lying across the railroad tracks in Montgomery.
Though he tried to stop, investigators said there was no way Chapman could have stopped the 81-car train in time to avoid hitting the man, Steven D. Pauley of Handley. Pauley was killed.
According to the federal civil lawsuit filed by Chapman and the United Transportation Union, Montgomery police officer Gary Perdue was the first officer on the scene of the accident. Chapman’s lawsuit alleges Purdue repeatedly asked Chapman if he was using drugs or alcohol.
Chapman alleges Perdue and Montgomery Police Chief Lawrence Washington forced him to take a breath test. The test was administered by Kanawha County Sheriff’s Deputy B.R. Martin.
Police also found a handgun in Chapman’s luggage, the lawsuit alleges.
Chapman is suing Perdue, Washington and Martin individually and the departments they work for. Attorneys James A. McKowen of Charleston and Lawrence M. Mann of Bethesda, Md., say the breath test and search violated Chapman’s constitutional protection against unusual searches and seizures under the Fourth Amendment and his right to due process of law guaranteed by the Fourteenth Amendment.
Lawyers also argue the test and search violated the Federal Railroad Safety Act of 1970. The act set up federal regulations for enforcing the law on railroads.
Under the act, McKowen and Mann said, municipal and county police are not allowed to conduct alcohol and drug tests on railroad workers.
The lawsuit said Chapman’s breath test proved negative, and the gun was legally licensed. The case has been assigned to U.S. District Judge Thomas E. Johnston.