CHARLESTON – Nearly a year after a series of events during the last week of the 2019 legislative session led to House Minority Whip Mike Caputo being charged with battery, those charges were dismissed Monday.

Kanawha County Circuit Court Judge Tod Kaufman issued a final order Monday dismissing the criminal charge against Caputo, saying the legislator has immunity.

Caputo, a Democrat and 12-term delegate from Marion County, was charged by the state Division of Protective Services with misdemeanor battery on Sept. 6 after a March 1 incident when an assistant doorkeeper was injured when Caputo kicked open the front door to the House Chamber. The division manages the Capitol Police.

During a Dec. 5 hearing, Kanawha County Magistrate Pete Lopez granted a continuance after attorneys for Caputo filed a motion to dismiss the charges citing State Code 4-1A-6, which gives members of the Legislature “immunity extending both to civil suits and criminal prosecutions for all actions within the legislative sphere.”

In his order Monday, Kaufman said state code clearly gives Capito immunity from prosecution during a legislative session as long as he was performing his duty. Since the incident occurred while he was trying to enter the chamber to sit for the floor session, the incident occurred within the legislative sphere.

House Rule 27 also requires the door to be opened for House members “until his name shall have been called twice.”

“(Caputo) was both permitted and obligated to be in the House Chamber when the bell rings, calling the House to convene,” Kaufman wrote. “As a member of the House of Delegates entitled to be in the chamber, indeed (Caputo) has a constitutional obligation to be in the chamber when the House is in session and was trying to enter the House chamber during the time between the prayer and the pledge of allegiance.”

Kaufman also said that since Caputo was charged by the Division of Protective Services, a part of an executive branch agency within the Department of Military Affairs and Public Safety, the charge also raises issues with the separation of powers between the legislative and executive branch.

“This is a basic separation of powers issue between the branches of government, and in this case, the legislative immunity provision prevails over an executive branch action by the state, to wit these misdemeanor charges,” Kaufman wrote.

Caputo’s charges stem from actions occurring the final week of the 2019 legislative session. During West Virginia GOP Day on March 1, a number of Democratic delegates were upset by a display promoting strict controls on immigration and asylum using a poster showing the World Trade Center attack on Sept. 11, 2001, above a picture of U.S. Rep. Ilhan Omar, D-Minn., a Somali immigrant and Muslim. The display upset a number of delegates, including Caputo.

According to the criminal complaint by the Division of Protective Services, Caputo allegedly approached the door of the House Chamber and either pushed or kicked open the door, hitting assistant doorkeeper Logan Casterline. According to the complaint, Caputo also allegedly pushed Delegate Sharon Malcolm, R-Kanawha, out of his way with his elbow. Malcolm died in September.

A day after the incident, Caputo apologized to the House during a floor speech. In a statement, Caputo repeated his regret for the March 2019 incident.

“Obviously, my family and I were very pleased to learn that charges against me have been dismissed,” Caputo said. “I hope this matter is finally over. I apologized before, both to the House publicly and the young man personally, and I’m still sorry for my actions. But I can say without reservation that I had no intention of hurting anyone.”

House Speaker Roger Hanshaw, R-Clay, removed Caputo from all committee assignments last year as punishment for the incident. Hanshaw declined to comment for this story.

Other Republican delegates last year attempted to move resolutions to censure Caputo and even remove him as a delegate. Both resolutions were tabled.

Berkeley County Delegates Tom Bibby and S. Marshall Wilson, who switched from Republican to independent in December, were sponsors of those resolutions last year. During remarks by members, Wilson asked Hanshaw about immunity.

“I’m asking for a ruling from the chair…does that legislative immunity extend beyond the parameters of the law of the legislative session time-wise,” Wilson asked. “And also I need to ask, does (Hanshaw) consider actions that took place during this session as being protected after the session ends?”

“The gentleman’s raised what would be the equivalent of a legal question to which a court would have to opine rather than the chair,” Hanshaw said.

After continued questioning, Hanshaw said the policy going forward for delegates trying to enter the chamber during or in between the opening prayer and the pledge of allegiance would be for doorkeepers to station themselves outside the main entrances to the chamber and warn delegates that the prayer and the pledge were going on, but not to bar delegates from entering the chamber.

“We’ll advise members that those exercises are being conducted and ask for your cooperation in not entering the chamber during the conduct of those exercises, but will not stop you from doing so,” Hanshaw said.

This is Caputo’s final session in the House as he prepares for a run for the state Senate for the seat of held by the retiring Senate Minority Leader Roman Prezioso, D-Marion.