MORGANTOWN — Delegate Mike Caputo, D-Marion, is seeking legislative immunity from his misdemeanor battery charge resulting from a March 1 incident in the House of Delegates chamber.
Caputo’s attorney, Tim DiPiero, filed the motion Thursday morning at the start of an arraignment hearing in Kanawha County Magistrate Court.
“This is a legitimate motion,” DiPiero said. “I think the court should hear it … before we go forward with any criminal proceedings.”
Magistrate Pete Lopez agreed to continue the arraignment –date to be determined – so defense and prosecution can study the motion and the applicable state code, and prepare to argue whether or not the code applies in this case.
DiPiero noted that whichever side loses has the right to appeal to circuit court for further consideration of the motion before the criminal process ever begins.
The alleged March 1 batteries occurred in response to an anti-Islamic display set up outside the House chamber as part of GOP day. One poster in the display juxtaposed a picture of a jet crashing into one of the World Trade Center towers with a photo of Islamic Rep. Ilhan Omar, D-Minn, a native of Somalia.
Caputo had viewed the display and, as the Sept. 6 criminal complaint alleges, “The defendant was making a commotion, talking loud and saying nasty things as he started up the steps” leading to the chamber foyer.
The doors were closed for prayer and Caputo forced them open. The door hit House doorman Logan Casterline, who later sought medical attention.
While making his way to his seat, the complaint says, Caputo was approaching Delegate Sharon Malcolm, R-Kanawha. Malcolm told Cpitol Police “the defendant stepped around her and advised her to get the ‘F’ out of his way.” Although she was out of his way, Caputo came up behind her and elbowed her.
She also sought medical attention and was still under a physician’s care at the time of the criminal complaint.
Shortly after the complaint was filed, on Sept. 30, Malcolm’s campaign staff announced she had died peacefully in her sleep.
After the incident, GOP Delegate Marshal Wilson, R-Berkeley, introduced resolutions to have Caputo censured and removed from office. Both were tabled on March 8. After that floor session, Caputo admitted his failure but denied striking Malcolm.
“I want to thank everyone in a bipartisan fashion, who I believe has forgiven me for my actions, which I openly admitted and apologized to everyone, including the doorkeeper,” he said that day. “So hopefully, this thing is behind us. I certainly want it behind myself and my family. And I hope everybody else does as well.”
Regarding Malcolm’s accusation, he said, “I think a lot of stuff was fabricated. And if something comes on down the road, that will all come out. … I’ve admitted to my mistake. I’ve never hid behind. And I apologize again to all West Virginia for my actions.”
Caputo was relieved of his committee assignments following the incident but has since had them restored.
On Thursday, DiPiero told the court the legislative immunity code – 4-1A – has never been used. Among other things, it says, “A member of the Legislature has immunity extending both to civil suits and criminal prosecutions for all actions within the legislative sphere, even though the conduct, if performed in other than a legislative context, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”
He said he believes the code’s applicability has to be hashed out before the criminal charge is considered. Caputo originally planned to plead not guilty, but they elected not to in case that pleas would waive his right to seek immunity.
The motion notes that there was a case in California where a legislator succeeded in having a misdemeanor battery charge dismissed based on immunity.
On Tuesday, Caputo announced his candidacy for the state Senate 13th District seat, now occupied by Sen. Roman Prezioso, D-Marion. Prezioso announced at the beginning of November his intention to not seek reelection.
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