Police suit updates

Posted 2/28/11

Tom Thompson, a Rawlins attorney representing the city of Powell and Chief Tim Feathers in his official capacity, asked for those claims to be dismissed.

As a part of his argument, Thompson said the evidence showed Feathers considered other …

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Police suit updates


Monday, Feb. 28

This case is going to be determined by the eight-member jury.

U.S. District Court Judge Alan Johnson today rejected a request from the defense to dismiss the case for insufficient evidence after plaintiff Tricia Wachsmuth rested her case.

"Sound like we have jury disputes at this point," the judge said, essentially reaffirming a decision he made Jan. 25.

Tom Thompson, a Rawlins attorney representing the city of Powell and Chief Tim Feathers in his official capacity, asked for those claims to be dismissed.

As a part of his argument, Thompson said the evidence showed Feathers considered other options before assigned the creation of the dynamic plan to Sgt. Mike Chretien, who the plaintiff's expert agreed was experienced in SWAT operations. Thompson said Feathers also reviewed the plan, asking about how the flashbang would be deployed and discussed with Chretien the need to wait a reasonable amount of time before entering the home. Thompson said Feathers' actions don't show deliberate indifference, the high legal standard he said the plaintiff must prove.

"What it does evidence is someone who is concerned for the safety of his officers as well as the occupants of this home," Thompson said.

Tricia Wachsmuth's attorney Jeff Gosman, however, again pointed to the fact that the police department's stated plan was to "immediately" ram the door if it wasn't answered. Feathers and Chretien both say that by "immediately," they meant after waiting a reasonable amount of time.

"That's great in a deposition a year and a half after the events of the night, but the jury's entitled to sit that, weigh it," said Gosman.

"He (Feathers) says, 'I knew the plan was to immediately ram the door.' He admits it. That's a violation of the Fourth Amendment," Gosman said.

Misha Westby, a senior assistant Wyoming attorney general who's representing the 11 officers in their individual capacities, similarly asked for those claims to be dismissed.

"We would argue that there's only one possible way that the jury could view the facts in this case," she said.

As one example, while police say knocked, announced and waited before entering the home, Westby also argued that since Wachsmuth spotted the officers as they approached her door, the officers would have been within their legal rights to immediately ramming the door as Wachsmuth says they did.

Gosman disagreed, noting Johnson previously rejected that argument.

"Those are not exigent circumstances under the law," he said.

Johnson again declined to dismiss the claims against police, saying the factual issues must be determined by the eight-member jury.

The attorneys last week said they hoped to send the case to jurors by early afternoon tomorrow (Tuesday). Tomorrow's Tribune also features a story recapping some of last week's testimony.

Thursday afternoon/Friday:

Two additional Powell police officers and the plaintiff's expert on police practices testifed on Thursday afternoon and Friday in the ongoing federal trial on Tricia Wachsmuth's suit against the city of Powell and police. The suit alleges police violated her constitutional rights when searching she and her husband's Powell home for drugs two years ago.

We'll have a lot more detail in Tuesday's paper, but here are a few highlights.


• Officer Matt Danzer, a member of the entry team into the home, testified on Friday that he did not know how long it took police to make it from the front yard to the porch or exactly how long the officers waited on the front porch before ramming down the door.

"It seemed like we were up there forever and I was very worried about that fact," said Danzer, testifying that Wachsmuth's dog had begun barking and that another officer had seen someone peering at the window at the officers.

"I don't know who's in there; I don't know what they're planning to do. I was worried," Danzer said.

• Sgt. Mike Chretien, who planned the search, said at one point earlier in the day he had asked if involving Bret Wachsmuth's father-in-law, Powell DCI agent Tom Wachsmuth, was an option for the drug search. Chretien said he was told "it wasn't."

Chretien said he set up the dynamic entry plan as a contingency for if the door wasn't opened after officers knocked. By having teams deploy a flashbang in the master bedroom and break out the back door window -- something which was supposed to happen but didn't -- Chretien said he wanted to distract the home's occupants from the front door and make it more safe for the entering officers.

• The plaintiff's police practices expert -- former Bellevue, Wash., Police Chief D.P. Van Blaricom --testified on Friday that in his opinion, Powell police used an unnecessary amount of force. Van Blaricom said the department's tactics would have been more appropriate to use on a fortified crack house. For example, he called the use of a flashbang, "outrageous."

"There is absolutey no purpose in throwing a flashbang into this malaise at all. Aboslutely no purpose," he said.

The defense unsuccessfully objected to Van Blaricom being designated as a police practices expert, citing his lack of personal drug warrant experience and length of time away from law enforcement.

"The last time you actually served a search warrant that was yours was in 1959?" asked police attorney Misha Westby.

"One that I obtained personally? Yes, ma'am," said Van Blaricom.

Judge Alan Johnson, however, allowed Van Blaricom to testify as an expert, noting he has stayed active in researching case law on police practices.

• The plaintiff and the defense have been given 20 hours each to present their cases, including time they spend cross-examining witnesses, but not including closing arguments.

In going through not quite seven witnesses -- Tricia Wachsmuth, Lt. Dave Patterson, Sean Wachsmuth, Officer Chad Miner, Van Blaricom, Danzer and much of Sgt. Mike Chretien's testimony -- plaintiff attorney Jeff Gosman has used up roughly 10 and half hours of his alloted time.

Nearly a full day was spent examining and cross-examining Miner, the officer who initially talked to the confidential informant and got the search warrant. When Gosman finished his direct examination of Miner, one of the jurors appeared to mouth the word, "Finally."

After Miner was finished on Thursday, Judge Johnson cautioned the attorneys in the case that "You need to be aware time is running on this and you need to use your time efficiently, or find the case going on without you."

Theoretically, if the plaintiff uses all its alloted time presenting its case, it would not be able to cross-examine the defense's witnesses.

The defense has roughly 14 and a half hours remaining.

• The trial will resume Tuesday morning, as the courthouse will be closed Monday for President's Day.

"Tempting," said Johnson of continuing the trial on Monday. "But you'll never get the federal government to work on a holiday."

Midday Thursday:

Office Chad Miner continued to testify this morning in Tricia Wachsmuth's suit against the city of Powell and members of the Powell Police Department. A couple highlights:

• Disagreeing with Lt. Patterson's assessment yesterday (see earlier updates below), Miner said he was confident the police department had enough information to move forward on the search of Bret and Tricia Wachsmuth's home for marijuana.

"I absolutely felt like we had the information that we needed," Miner said.

He described the situation as being unique since Bret Wachsmuth's father is a Powell DCI agent.

"None of us, speaking for me particularly, enoy taking any kind of enforcement action when it inoves people you know, especially people you work with," Miner said.

• Miner said, and police photographs indicated, that five firearms were found in the Wachsmuths' master bedroom where the flashbang was deployed -- one handgun was laying on the bed, another on a hope chest at the foot of the bed, a semi-automatic pistol and ammunition was located in a nightstand next to the bed, and a shotgun and rifle were propped up against the wall in a corner by a dresser.

• Excerpts from Bret Wachsmuth's alleged marijuana grow log were presented to the jury. On Feb. 16, eight days prior to the raid, the log refers to eight seedlings about four inches tall, which police say corroborates the confidential informants account of 10 to 20 plants.

The last entry in the log seized from the Wachsmuth's residence, dated Feb. 22, read: "The seedlings look healthy but don't seem to be growing very much, I don't no (sic) why."

Wednesday night:

Testimony continued today in U.S. District Court in Cheyenne as the plaintiff presents its case against the city of Powell and 11 police officers. Plaintiff Tricia Wachsmuth claims the officers used excessive force when executing a 2009 search warrant for marijuana plants at her and her husband Bret's Powell home.

Park County Sheriff's Lt. Dave Patterson and Powell police officer Chad Miner were the two primary new witnesses called to the stand by Wachsmuth's attorney on Wednesday.

Wachsmuth finished up her testimony Wednesday morning after spending Tuesday afternoon going over her recollections of the raid and the psychological damage she believes she suffered from the incident. For more details on her testimony and opening arguments, please check out today’s (Thursday's) edition of the Tribune.

A couple highlights from Wednesday:

• Patterson had been consulted by officer Miner prior to the raid because of his experience with marijuana growing operations. Patterson testified he had raised concerns that a dynamic entry was not appropriate. He said he'd suggested either doing a knock and talk or enlisting the help of Bret's father, Tom Wachsmuth, who is a DCI special agent in the agency's Powell office.

However, "It was obvious to me those two options were not something they were interested in doing," Patterson said. He said he didn't want the sheriff's office to get involved until Powell police had pinned down more details about the grow operation.

• Officer Miner testified Wednesday afternoon, examined by Wachsmuth's attorney, Jeff Gosman. Gosman asked Miner to go over the preparation for the search and talked at length about the steps Miner took to look at the Wachsmuth's criminal history.

Miner also testified to how long he believed the officers waited before knocking; he estimated the officers waited between five and 10 seconds after knocking before they went into the house.

Gosman pressed Miner on if that wait was long enough to meet the requirements set by constitutional case law; Miner responded that there is no set limit of seconds an officer must wait, saying his knowledge of case law says the wait depends on the totality of circumstances at the time the warrant is executed.

"As you sit here today, you don't think there's any issue with how long you waited to ram the door?" asked Gosman.

"I think you take issue with it," responded Miner.

• Following the release of the jury at the close of proceedings on Wednesday, Wachsmuth's attorney, Jeff Gosman of Casper, was indirectly chided by Judge Alan Johnson. Johnson did not single out any attorney by name, but expressed concern with attorneys in the case issuing subpoenas improperly, raising objections without getting up from their seat and talking over witnesses and having witnesses not directly answer questions from opposing counsel.

Gosman has issued two subpoenas during the trial (arguably presenting them to the wrong individuals), raised objections from his seat, been asked by the court report to stop talking over witnesses, and Johnson previously expressed concern that Gosman's client, Wachsmuth, was not answering the police attorney's questions.

"Professional courtesy is kind of going out the window in this case," Johnson said. "I think it just has to stop. I think it's making the court look bad (to the jury) and the process look bad."

The trial resumed at 9:15 a.m. Thursday. After Miner finishes, next up will be Powell Police Sgt. Mike Chretien.

Earlier update follows.

Tuesday mid-day:

Tricia Wachsmuth's civil rights lawsuit against the city of Powell and most of the members of the Powell Police Department is underway.

Opposing attorneys presented their opening arguments this (Tuesday) morning in the U.S. District Court of Wyoming in Cheyenne before an eight-member jury (seated yesterday) and Judge Alan Johnson.

As expected, attorneys for Wachsmuth and police presented completely different takes on the Feb. 24, 2009 drug search that led to the suit.

Wachsmuth claims police used excessive force and violated her constitutional rights in searching the East North Street home she shared with her husband, Bret, for marijuana plants. (Two plants were recovered in the search, though police claim another 10 or so had been disposed of a few days prior to their raid.)

Police say their actions were reasonable.

The search involved a "dynamic entry," where officers broke down the front door with a battering ram and deployed a flashbang in the master bedroom. While Wachsmuth claims their tactics were excessive, police say they were necessary to ensure the safety of everyone involved. Police say they had information the Wachsmuths had guns throughout the house and were possibly mentally unstable.

"Better safe than sorry," is how police attorney Casey Parker framed the tactics in her opening argument Tuesday morning.

Much of the case hinges on whether police planned to and did enter the house without giving Tricia Wachsmuth enough time to answer the door.

"I'm going to tell you they (the officers) didn't wait. And they're going to say that they did," said Jeff Gosman, Wachsmuth's attorney.

Gosman said Powell police made the Wachsmuths out to be more dangerous than they were.

"There's been an effort to exaggerate the facts of this case from day one," he said.

The trial is expected to run through this week and next. Unlike what you might expect from television, trials are not non-stop excitement. They involve a lot of pretty routine testimony.

As they broke for lunch, one of the jurors said they were going to be getting "a lot of coffee" over the break.

Tricia Wachsmuth will be the first witness to testify in the case this afternoon.