Nov 4, 2015

Report critical of assistant chief ‘cherry-picked’ the facts, City of Cody says

A recent critique of a 2010 strip search conducted by a former Cody police official misconstrued the facts, according to lawyers for the officer and the city of Cody.

The report in question came from an expert hired by Juan P. Flores, who’s alleging in a federal lawsuit that then-Assistant Cody Police Chief George Menig violated his civil rights in a September 2010 search.

Last week, attorneys for the city and Menig said Flores’ expert’s critical report “cherry-picked” the facts and, in being filed publicly, violated an order of confidentiality in the case.

Menig has denied doing anything wrong.

According to police reports, the incident began when Flores flagged down a Park County Sheriff’s Office deputy near the Cody Law Enforcement Center on Sept. 13, 2010. He told the deputy he was a member of the Taliban who was going to “blow things up.” He was then uncooperative with responding officers, including by refusing to give his real name.

Menig was ultimately summoned to the scene. He pulled off Flores’ clothes to look for the supposed explosives and shocked the handcuffed man with a Taser when he refused to open his mouth. (Flores had claimed to have swallowed nitroglycerin in order to blow himself up, according to police reports.)

Flores’ designated expert — former Bellevue, Washington, police chief D.P. Van Blaricom — wrote in a September report filed with the court that using a Taser on a handcuffed suspect “amounts to coercive torture.”

Van Blaricom was given access to confidential Cody police documents for his report, including some from Menig’s personnel file and from the department’s internal investigation into the incident.

Apparently summarizing the confidential documents, Van Blaricom wrote that the department launched an internal investigation three years after the fact, when an officer brought a video of the altercation to the attention of City Attorney Scott Kolpitcke. In 2014, Menig was found to have violated department policy and disciplined for strip searching Flores, Van Blaricom said. He also said the three other Cody police officers who responded to that night’s call disagreed with Menig’s tactics.

“Van Blaricom’s expert report omits information, including information favorable to Menig,” wrote attorneys for Menig and the city of Cody.

However, the attorneys representing Menig and the city of Cody say Van Blaricom’s report is “a piece of advocacy on behalf of (Flores) that cherry-picks references within the confidential documents to portray (Menig) in a negative light.”

“Van Blaricom’s expert report omits information, including information favorable to Menig,” Senior Assistant Wyoming Attorney General Theodore Racines and Cody City Attorney Scott Kolpitcke wrote in their Oct. 28 filing.

While criticizing Van Blaricom’s report, their main point was to complain that Flores’ attorney — John Robinson of Jamieson Robinson in Jackson — disclosed information that the parties had agreed would remain confidential.

Robinson filed Van Blaricom’s report as a public court document on Sept. 21.

“The plaintiff’s publication of confidential information and the plaintiff’s selective use of that information to publish a document which attempts to tarnish the image of the defendant (Menig), undermines the very reasons for the Stipulated Protective Order, which was to protect the parties’ expectation of privacy and confidentiality,” Kolpitcke and Racines wrote. “In addition, it potentially jeopardizes (Menig’s) opportunity for a fair trial.”

The attorneys noted that the Powell Tribune wrote about Van Blaricom’s report on Oct. 1 and that many other media outlets followed.

Beyond using information from the internal investigation, Van Blaricom’s report quoted from a psychiatric evaluation Menig underwent before being hired as the assistant police chief — a document the city had resisted turning over to Robinson.

U.S. Magistrate Judge Kelly Rankin had ordered the city to turn over the evaluation in July after finding it was relevant to the case, but he also added that, “all information contained in the file is subject to the existing protective order.”

Robinson had Van Blaricom's report sealed on Oct. 2, after the Tribune published its story.

Racines and Kolpitcke have asked Judge Rankin to punish Robinson. They say both Menig and the city have been harmed by the public release of the confidential information.

Robinson must file his response to the request for sanctions by Nov. 23.

Meanwhile, Menig is due to file his own expert’s report by Nov. 11. He resigned his post as Cody’s assistant chief in September.

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