West Virginia Air National Guard members rendered aid to a civilian who collapsed near the Smithsonian Metro area while on a presence patrol in Washington on Sept. 24. (Photo Courtesy of W.Va. National Guard)

CHARLESTON — A Kanawha County judge denied a motion that would have determined that the West Virginia National Guard deployment to Washington, D.C., was in violation of State Code and unconstitutional.

During a hearing Monday afternoon, Eighth Judicial Circuit Judge Richard Lindsay ruled from the bench, denying a motion for a preliminary injunction being sought by ACLU-WV, representing the West Virginia Citizens Action Group, against Gov. Patrick Morrisey and Maj. Gen. James Seward, the adjutant general of the West Virginia National Guard.

The lawsuit was originally seeking a temporary restraining order and a permanent injunction to block the recent deployment of the National Guard to Washington and a declaratory judgement that the deployment exceeds statutory and constitutional authority. Lindsay converted the motion for a temporary restraining order into a motion for a preliminary injunction last week.

The permanent injunction sought to prohibit Morrisey from ordering the deployment of National Guard soldiers outside of the state and prohibit Seward from complying with unlawful directives to send National Guard units or civilian employees outside the state.

“I believe we’re not talking about another state or sovereign like Pennsylvania or Ohio. We’re talking about the District of Columbia, which is under the federal jurisdiction of our Congress and government,” Lindsay said.

Trump announced a federal takeover of law enforcement functions in Washington on Aug. 11, citing instances of violent crime. Trump called up the D.C. National Guard, FBI, the Department of Homeland Security, and other federal agencies to help quell crime.

Trump also requested the assistance of states, asking them to send their own National Guard units. Trump cited United States Code Title 32 502(f), which allows the secretaries of the Army or Air Force to call up National Guard units from other states for training or other duties. This authority is used for national disasters or national security missions.

Morrisey announced on Aug. 16 that he was sending between 300 and 400 personnel with the West Virginia National Guard to Washington.

“The court believes that West Virginia law allows for the satisfaction of the President’s request in this regard and in this special circumstance … which allows the governor to deploy the National Guard outside of our borders for ‘military duty,'” Lindsay said.

Lindsay dismissed the case without prejudice, leaving open the door to the case being re-filed in the future should Morrisey decide to deploy the National Guard at the request of the Trump administration to other states, which Lindsay did say would be in violation of State Code and unconstitutional depending on how the deployment was done.

“Even more concerning to this court, more concerning than the West Virginia National Guard deployment to D.C., is potential use of (federal code) for the deployment of our West Virginia National Guard to states over the objection of the receiving state’s governor,” Lindsay said. “That’s not what we have here. I want to underline that. But the court does take heart … that such a deployment to a sovereign state under this status would be unconstitutional.”