However, the eight-member panel also determined that, contrary to Tricia Wachsmuth’s claims, officers knocked and announced their presence and waited a reasonable amount of time before ramming open her front door, and that the department’s plan …
Wachsmuth awarded $30,001 in civil suit
A federal jury has awarded $30,001 to a Powell woman, finding the Powell Police Department used her a human shield in violation of her constitutional rights during a search of her home for drugs two years ago.
The jury also found that two officers who deployed a flashbang in the home’s master bedroom did so in a potentially unsafe manner.
However, the eight-member panel also determined that, contrary to Tricia Wachsmuth’s claims, officers knocked and announced their presence and waited a reasonable amount of time before ramming open her front door, and that the department’s plan to enter the home was constitutional.
Of the award, $30,000 was to cover the costs of psychological treatment for Wachsmuth while $1 was to compensate her for pain and mental anguish.
The jury’s verdict, reached on Friday, came after three weeks of trial proceedings, testimony and deliberations in Wachsmuth’s civil rights lawsuit against Powell police in the U.S. District Court of Wyoming in Cheyenne.
District Court Judge Alan Johnson, who presided over the case, has also awarded a to-be-determined amount of attorney’s fees and costs to Wachsmuth.
If the award amount is not appealed and stands, it would be paid for by the state of Wyoming’s self-insurance pool, which covers peace officers in the state.
Police had seized two mature marijuana plants in the Feb. 24, 2009 search of Tricia and her husband Bret’s home on East North Street after being tipped off by a confidential informant; evidence showed another eight seedlings had been growing two days prior to the search. Drug paraphernalia and six firearms — including five in the master bedroom — also were seized. Police broke open the door and deployed a flashbang when executing the search warrant, and officers had Wachsmuth lead them into the basement. Tricia Wachsmuth filed suit last March, alleging the department used excessive force.
The suit had named the city of Powell, Police Chief Tim Feathers and 11 officers who participated in the raid as defendants. Sgt. Mike Chretien, who planned and the raid and told Wachsmuth to go into the basement, and Sgt. Roy Eckerdt were the only officers found to be liable for violating Wachsmuth’s civil rights. The city, Feathers and the nine other officers were cleared for their roles in the search.
The jury was made up of five men and three women, hailing from Albany and Laramie counties in southeast Wyoming — specifically Laramie and Cheyenne.
The panel found Sgt. Mike Chretien forced Wachsmuth “with guns down the stairs where she was employed as a human shield.” Chretien testified he told Wachsmuth to go first down the stairs as an attempt to call her bluff and determine if there was anyone else in the home. Chretien said he was expecting her to respond verbally, not actually walk down the stairs.
Two officers testified they had concerns with Wachsmuth going first, but were too surprised to stop her. Chretien said that when Wachsmuth appeared willing to go downstairs, he was felt comfortable there was no threat, but he and all the other officers also testified that it happened very quickly.
In a Monday interview with the Tribune, juror Harry Kittleman of Cheyenne noted the officers had been told that when the basement door was unlocked, that meant there was someone downstairs, where the marijuana was growing. The basement door had been found unlocked.
“They (the officers) should have been going down to clear it, not forcing her (Wachsmuth) down there,” Kittleman said.
Sgt. Roy Eckerdt, who was nearby, was found liable in the use of Wachsmuth as a shield, because as a supervisor, the jury felt he should have stopped Chretien.
“I do believe their (the plaintiff’s) rights were violated, but not on purpose,” said juror Chris McDaniel of Cheyenne immediately after the verdict’s announcement. McDaniel said the wording of the jury instructions forced him to find in favor of the plaintiffs.
“I don’t think they (the plaintiff) should have got a fricking dime,” he said.
The jury’s verdict appeared to accept the police officers’ testimony above Wachsmuth’s.
“I don’t think Tricia’s testimony was credible at all. I fought this to no end,” said McDaniel.
“We didn’t put much credibility into what she (Wachsmuth) said,” said Kittleman.
Though Wachsmuth testified the officers pointed their guns at her as she descended the stairs, Kittleman said he did not believe the officers did so, saying they had no reason to.
The officers had testified they had not pointed guns at Wachsmuth as she went down the stairs.
Of Wachsmuth’s account that the officers never knocked and announced their presence, “I don’t think anyone believes that, even her attorney,” said Kittleman.
The officers all testified that they knocked and announced their presence and waited before breaching the door.
By all accounts, Wachsmuth was only a few feet away from the front door when officers arrived.
“It certainly would not take her long to get to the door or say something,” said Kittleman. Noting a handgun was found on the living room bookshelf, “it wouldn’t take too long to get to that, either,” Kittleman said.
The jury also found that Sgt. Alan Kent — who broke out the master bedroom window — and Officer Matt McCaslin — who dropped the flashbang through the window — failed to “into the master bedroom before deploying the flashbang device in a manner that the device would not risk injury.”
Kittleman said the jury agreed to find it was potentially unsafe at the insistence of one juror, who wasn’t going to agree on the award amount otherwise. Personally, Kittleman said he believed the deployment of the flash was “probably safe,” citing the officers’ rationale that anyone in the room likely would have woken up or made noise with the dog barking, door knocking and being rammed, and glass breaking.
Kent and McCaslin testified they looked into the room, but couldn’t see exactly where the flashbang was going to land; they were not found to have violated Wachsmuth’s civil rights.
The jury also found the department’s plan — to breach the door and deploy distractions including a flashbang if the door wasn’t opened — was not unconstitutional.
“For the information they (police) had, I think they did the proper thing,” Kittleman said. Police say they had been told by an informant the Wachsmuths were growing 10 to 20 plants, had loaded firearms strategically placed around the house, were paranoid, peeped out the window looking for police, had been told police were coming and were possibly mentally unstable.
While the plaintiff’s attorney Jeff Gosman repeatedly noted the Wachsmuths had no criminal history, Kittleman, siding with the officers’ testimony, said a lack of a criminal history was not too significant to him “because at some point that (a criminal history) starts. There’s always a first time.”
Kittleman said the jury decided to award just $1 for pain and suffering because the Wachsmuths “needed some responsibility there” for growing marijuana. Wachsmuth had asked for $500,000.
“If it wasn’t for them breaking the law, the police wouldn’t have been in there,” Kittleman said.
The Wachsmuths both completed sentences of probation after pleading guilty to marijuana-related misdemeanors.
The jury had initially planned to award $20,000 to Wachsmuth, but increased the sum up based at the insistence of the one juror. The figure, Kittleman said, was an estimate of how much Wachsmuth’s mental health treatments cost over the past two years and for three years in the future.
Gosman had asked for $9,000 of medical costs a year for 10 years. Wachsmuth has been diagnosed with Post Traumatic Stress Disorder.
Kittleman said he questioned if the raid was the cause, noting her psychiatrist wasn’t positive.
“She obviously has some mental issues but she had some coming into that (night of the search),” Kittleman said.
Two jurors declined comment to the Tribune shortly after the verdict. A Facebook message left for another juror had not been returned as of press time.
The sides each have 30 days to appeal.