State pays $180,001 in Powell police suit

Posted 7/28/11

Tricia Wachsmuth’s civil rights case against the city of Powell, the Police Department and the officers who searched her home officially closed July 6 with a filing stating the judgment in the case had been satisfied.

Following a more than …

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State pays $180,001 in Powell police suit


Chief: Department ‘should have done better’ in raid

In addition to $30,001 awarded by a federal jury, the state of Wyoming has paid $150,000 to cover attorney’s fees and costs for a woman whose Fourth Amendment right against unreasonable seizures was violated by Powell police during a 2009 drug raid.

Tricia Wachsmuth’s civil rights case against the city of Powell, the Police Department and the officers who searched her home officially closed July 6 with a filing stating the judgment in the case had been satisfied.

Following a more than two-week-long trial and deliberations spread over three days in Cheyenne, an eight-member jury found on March 4 that the armed Powell police officers illegally used Wachsmuth as a human shield as they began searching the basement of her East North Street home for marijuana. They also found that two officers failed to check a bedroom in a way that “would not risk injury” before deploying a flashbang, though those officers were not found to have violated her rights.

The jury — and presiding federal District Court Judge Alan Johnson in a decision prior to trial — sided with police on the other claims Wachsmuth made in her lawsuit.

In an interview earlier this month, Powell Police Chief Tim Feathers said the jury’s rejection of all but one of Wachsmuth’s claims showed “they (the jury), too, clearly saw we (police) didn’t do what we were accused of.”

However, on the issue of how Wachsmuth was handled as police searched the home, “we could have done better,” Feathers said. “We should have done better.”

A team of 12 officers — the entire uniformed department except Feathers and two patrol officers — went to the house with a search warrant on the night of Feb. 24, 2009, in search of a reported marijuana grow operation. A man who had lived with Tricia and her husband Bret had told police that afternoon that Bret Wachsmuth was growing a dozen or more plants, was paranoid and had multiple guns placed around the house. Unlike the informant, neither Bret nor Tricia Wachsmuth had a prior criminal history, but police said that fact alone doesn’t make a situation safe.

Multiple guns were found in the house, including a loaded handgun in the living room, which the Wachsmuths said was there in case the informant — who had allegedly threatened them — came back to their home.

Two marijuana plants were found in the Wachsmuths’ basement, though testimony indicated eight other seedlings had been there a couple days prior to the raid. The Wachsmuths later each received fines and unsupervised probation for misdemeanor drug charges in connection with the incident.

Concerned about safety, police had come up with a search plan to use a “dynamic entry.”

One team of officers would knock on the door and announce “Police, search warrant.” If the door didn’t open “immediately,” the plan called for the officers to ram it open, while other teams would create distractions by setting off a flashbang in the master bedroom and breaking out a back door window.

Park County Sheriff’s Lt. Dave Patterson was consulted prior to the raid because of his significant drug enforcement experience. He thought such a forceful entry on the small marijuana grow operation was unnecessary.

Patterson said police seemed to have already made up their minds when he suggested taking more time to get the information pinned down and to consider involving Bret Wachsmuth’s father, State Division of Criminal Special Agent Tom Wachsmuth. Feathers said he decided not to involve Tom Wachsmuth when his DCI supervisor wasn’t sure how Tom would react.

The entry team was spotted by the Wachsmuths’ dog as they approached the house, and the officers sped up. Before the back door team was in place, they knocked, announced their presence, waited an unknown number of seconds, then broke open the door, they said. Sgt. Alan Kent and Officer Matt McCaslin broke out a bedroom window and dropped a flashbang device onto the head of the Wachsmuths’ empty bed; the officers could not see exactly where the device was going to land, but testified they were confident there was no one on the bed.

It’s the only time the department has used a flashbang, police said.

Tricia Wachsmuth, who was alone and just a few feet from the door watching a movie, testified the officers never announced their presence or gave her a chance to open the door (as is required with a knock-and-announce search warrant), but jurors rejected her account with their verdict. The panel found the officers knocked and waited a reasonable amount of time before entering.

Two jurors told the Tribune they did not find Wachsmuth’s testimony credible. A third, the presiding juror in the case, said she believed Wachsmuth had been smoking marijuana and that skewed her perception of the night’s events, though no one testified that Wachsmuth had been smoking.

Wachsmuth’s attorney Jeff Gosman — who did not return multiple Tribune phone calls this month seeking comment on the closure of the case — said during the trial that Wachsmuth did exactly what Chretien told her to do. Wachsmuth testified she was afraid she was going to be shot by the armed officers.

Officers Kirk Chapman and Michael Hall — among several who were nearby in the small home — said they had concerns with Wachsmuth going first into the unsecured basement, but they and other officers said the situation unfolded too fast for them to react.

When she stopped partway down the stairs, Wachsmuth was told to keep going by former Powell Police Officer Matthew Danzer, though he said that was because police couldn’t fit by her on the three-foot-wide stairs.

The jury found that Chretien and Sgt. Roy Eckerdt, who was also in the area at the time, violated Wachsmuth’s rights. Jurors said that as supervisors, those sergeants should have stopped Wachsmuth from going into the unsecured area.

“(W)hile the others may have been only following orders, they (Chretien and Eckerdt) should have been able to recognize what she was doing and stopped her,” said the presiding juror in a March Facebook message to a Tribune reporter. “Also, in that kind of situation, where there is so much adrenaline, they shouldn’t have just let her wander around without knowing where she was going and what she was doing.”

The jury awarded Wachsmuth $1 for pain and suffering and $30,000 to cover some of the costs of her psychological treatment. Wachsmuth was diagnosed with post traumatic stress disorder after the raid. She has suffered panic attacks and nightmares since the raid, she and her family testified, and she was never able to spend another night in the home. Wachsmuth, who said she had been smoking marijuana to help with depression, had asked the jury for $590,000.

“I didn’t believe that it was appropriate to give her enough money to get her back to complete mental health when we knew that she had some existing mental problems prior to the incident,” said the presiding juror, a Cheyenne woman who asked her name not be used. “... I accepted (the proposed pain and suffering) figure of $1 believing that the total amount would make the statement we wanted to make about violation of her rights, without assigning a dollar figure to a condition money can’t make go away.”

The state of Wyoming, which insures police officers in Wyoming, paid Gosman the $30,001 awarded by the jury and a negotiated $150,000 sum for attorney’s fees and costs back in May.

Because she lost her claims against the city of Powell and Chief Feathers in his official capacity — who were represented separately from the individual officers — Wachsmuth had to pay $1,207.97 to the city’s insurer to cover some of their costs.

Prior to trial, Judge Johnson had dismissed Wachsmuth’s claims that the city of Powell itself violated her rights and failed to properly train its officers, along with a claim police excessively held her at gunpoint. The jury found the department’s plan, crafted by Chretien and approved by Feathers, was not constitutionally excessive force.

Neither side appealed the jury’s decision.

Feathers said the department had four hours of refresher training on high-risk warrant service after the trial.

“Obviously, that (handling a suspect during a search) we gave the greatest focus to,” Feathers said. But he said the department went over everything, because — as was noted repeatedly during the trial — police actions are supposed to be based on the totality of circumstances at the time.

Feathers said the department also addressed the problems it saw the day after the 2009 raid.

He said if the department had done things as well as it could have, there wouldn’t have been a successful suit. Feathers said he wants to use the incident as “a catalyst to do better at what we do.”

“I guess my final analysis is this: When you look at the accusations that were made as filed in the lawsuit, did we do those things? No,” Feathers said. “Are there some things in this case that we could have done better? I don’t think there’s any doubt on that in anybody’s mind.”