An attorney for Del. Mike Caputo, D-Marion, filed a motion on Thursday requesting the court dismiss a criminal complaint accusing Caputo of misdemeanor battery stemming from from an incident during the 2019 legislative session.
Charleston attorney Tim DiPiero said Thursday the motion was filed in Kanawha County Magistrate Court shortly before a 10 a.m. hearing, during which DiPiero said he actually had been planning for arraignment.
“We were ready to enter a plea of not guilty, we were ready to file motions for discovery,” DiPiero told Magistrate Pete Lopez. “But out of an abundance of caution, we’re afraid to even do any of that, because we could possibly be waiving his [Caputo’s] claim to legislative immunity.”
By legislative immunity, DiPerio is citing a section of state code offering lawmakers immunity from civil and criminal prosecution while the Legislature is in session.
Caputo, who said he was bothered by an anti-Muslim poster on display at the Capitol on March 1, admitted to kicking open the House chamber doors, which had been closed at the time for daily prayer and the pledge of allegiance.
In doing so, he allegedly injured door keeper Logan Casterline, who later “complained of pain and sought medical attention,” according to the criminal complaint Capitol Police filed in September. Caputo was removed from his committee assignments for the rest of the session. He later apologized for his actions.
DiPiero called the concept of legislative immunity “novel” not only to himself, but the state of West Virginia.
“This is a legitimate motion, and I think the court should hear it, give them a chance to respond, hear it before we go forward with any criminal proceedings,” DiPerio told Magistrate Judge Pete Lopez.
Jonathan Calhoun from the Kanawha County Prosecutor’s office told Lopez on Thursday his office agreed with DiPiero’s request to schedule a new hearing at a later date, because the prosecutors would need more time to study Caputo’s motion to dismiss and form a response. Calhoun was standing in for attorney Morgan Switzer from the same office, who is assigned to Caputo’s case but was tied up Thursday morning with a different matter in circuit court.
The Kanawha County Magistrate Court said it’s in the process for scheduling the next hearing sometime after Jan. 1.