Some claims dismissed in police suit

Posted 2/3/11

Johnson ruled a jury will need to sort out Wachsmuth’s claims that Powell police officers used excessive force in deploying a SWAT-like team and a flashbang device in searching her and her husband’s East North Street home for illegal …

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Some claims dismissed in police suit


A federal judge has dismissed several claims against the Powell Police Department and the city, finding some of a Powell woman’s civil rights complaints over a February 2009 drug search of her home were not supported by the facts of the case and the law.

However, in a Jan. 25 decision, U.S. District Court Judge Alan Johnson also allowed the major claims brought by Tricia Wachsmuth to proceed to trial.

Johnson ruled a jury will need to sort out Wachsmuth’s claims that Powell police officers used excessive force in deploying a SWAT-like team and a flashbang device in searching her and her husband’s East North Street home for illegal drugs.

Wachsmuth also alleges the officers failed to knock and announce their presence before breaking down her door with a battering ram and then used her as a human shield in clearing the home’s basement, all in violation of her Fourth Amendment right to be free from unreasonable searches and seizures.

Through their attorneys, the police department, city of Powell, and the 12 individual officers named in the lawsuit have denied those allegations, contending their actions were reasonable under the circumstances, constitutional and consistent with police practices and standards.

The claims are slated to be decided at a jury trial in the federal District Court of Wyoming in Cheyenne, beginning Feb. 14.

The parties have said the chance of settling the case before then is poor. Wachsmuth is seeking up to $1 million in damages.

In his decision, Johnson did dismiss complaints against the officers in their official capacities, finding the city and police department had no unconstitutional policies in place.

He also dismissed Wachsmuth’s claim that the city had failed to train the officers involved in raid, noting that “the record is replete with extensive training provided for the officers.”

The court also rejected a complaint that Wachsmuth was unreasonably held at gunpoint during the search; Johnson noted the U.S. Supreme Court has previously found more egregious cases — such as holding a naked couple at gunpoint — as constitutionally reasonable.

Complaints that the department’s actions violated state law also were dismissed.

After being tipped off by a confidential informant that the Wachsmuths had a marijuana-growing operation in their basement, Powell police officers seized two marijuana plants, grow logs and drug paraphernalia and found several guns in the operation on Feb. 24, 2009.

The search included using a battering ram on the front door and deploying a flashbang in the master bedroom.

Police say that although neither Wachsmuth had a violent or criminal history, there were concerns the couple was exhibiting paranoid behavior and had multiple guns throughout the house.

Tricia Wachsmuth and her husband, Bret, each were charged with marijuana-related misdemeanors and reached plea agreements with prosecutors that involved small fines and probation.

Many of the claims headed to trial hinge on whether Police Chief Tim Feathers knowingly approved, and individual officers knowingly participated in, an unconstitutional aspect of the plan to immediately break down the door without waiting a reasonable amount of time for it to open.

Given that the warrant was a knock-and-announce warrant, immediately opening the door would have been unconstitutional, Johnson wrote.

The city and police department have said the plan was “to announce ‘police, search warrant’ and if the door did not open immediately, the ram was to be used for entry.”

Police, including Feathers, have said in depositions that by “immediately” ramming the door, they meant after first waiting a reasonable amount of time.

One of the issues to be determined at trial is “what the term ‘immediately’ meant to the officers.”

As police were approaching the home, Wachsmuth’s dog began barking and Wachsmuth looked out her window, spotting the approaching officers.

Wachsmuth says that after she looked out the window, and before police audibly announced their presence, the door was rammed. However, the officer leading the entry team, Officer Kirk Chapman, said in deposition that he knocked, declared “Powell Police Department. We have a search warrant,” and waited five to six seconds before the door was rammed.

Another claim Johnson allowed to go to trial is Wachsmuth’s claim that she was used as a human shield as the officers cleared the basement.

If the officers actually did force Wachsmuth at gunpoint to go down the stairs in front of them into the uncleared basement, “such actions are clearly unreasonable,” Johnson wrote.

Johnson said Wachsmuth had a constitutional right to be “free from being used as a human shield.”

Assuming Wachsmuth’s account of the incident is accurate, “This Court finds it difficult to imagine any set of facts that would justify what occurred.”

Police, however, dispute Wachsmuth’s account, saying she lead them on her own volition into the basement, going halfway down the steps before officers passed her and cleared the basement. Officers said she surprised them by going down the stairs.

Johnson also did not dismiss Wachsmuth’s allegation that using a flashbang device was excessive. Key to that claim at trial, Johnson indicated, is whether the two officers were able to be able to see into the bedroom before they deployed the flashbang onto the bed.

It was the first time the department had used a flashbang outside of training.

The trial is expected to last eight to 10 days.