Nov 19, 2015

Defense expert says Cody policeman’s 2010 search did not violate suspect's civil rights

A former Cody police officer’s 2010 search of a man who claimed to be a suicide bomber — a search that involved stripping off his clothes and shocking him with a Taser — was not unreasonable, according to a police practices expert.

The expert’s report defends the actions taken by then-Assistant Cody Police Chief George Menig in a September 2010 search of Juan P. Flores.

Flores claims Menig violated his civil rights and is suing him in federal court in Casper.

Thor Eells, a commander with the Colorado Springs Police Department, is defending the actions of former Assistant Cody Police Chief George Menig. Photo courtesy Colorado Springs Police
However, the new report from Colorado Springs Police Department Commander Thor Eells — filed on Menig’s behalf last week — suggests police officers need broad discretion in dealing with suspected suicidal bombers because the threat they pose is so different from typical calls.

Training material from the International Association of Chiefs of Police “stresses the fact that a suspected suicidal bomber always presents an imminent threat of death or serious bodily injury” and “emphasize the need for law enforcement to consider and use what would normally be unorthodox measures,” Eells writes.

The report rebuts one filed by Flores’ expert — former Bellevue, Washington, Police Chief D.P. Van Blaricom — that concluded Menig did violate Flores’ rights.

According to police reports, Flores flagged down a Park County Sheriff’s Office deputy outside the Cody Law Enforcement center on Sept. 13, 2010. Repeatedly refusing to give his name, Flores claimed to be a member of the Taliban and said he intended to “blow things up.” The deputy and three Cody police officers handcuffed the man and searched him.

He later claimed to have swallowed explosive nitroglycerin to blow himself up. Police found he had a bottle of what was labeled as vodka.

Former Bellevue, Washington, police chief D.P. Van Blaricom is Flores' expert witness. Courtesy photo
Menig was ultimately summoned to the scene, and when he arrived, he forcibly removed Flores’ clothes to look for explosives. When Flores then refused to open his mouth to show if anything was inside, Menig shocked the handcuffed suspect with a Taser to get him to open up.

Van Blaricom — who is Flores’ hired expert — wrote in his September report that the use of the Taser “amounts to coercive torture and is a prohibited police practice.”

Eells, however, reached a different conclusion, noting how the situation differed from typical calls.

While deadly force is generally supposed to be a last resort for officers, “in suicidal bomber calls, it is encouraged as an early option,” Eells writes, interpreting guidelines from the International Association of Chiefs of Police (IACP).

“In light of the justification for deadly force (for suicide bombers), it is not unreasonable for an officer to believe that a lower level of force, such as the Taser, would be acceptable,” Eells wrote.

As for the strip search, Eells says IACP guidelines tell officers to have suspected suicide bombers remove their clothing.


Since Flores was not compliant, and since officers may sometimes use the element of surprise, Menig's decision to suddenly pull off Flores' clothing “was also unorthodox, but not unreasonable given the circumstances surrounding this call,” Eells concludes.

In contrast, Van Blaricom wrote in his report that “public strip searches ... are unreasonable per se and a prohibited police practice.” He said an internal Cody Police Department review of Menig’s actions concluded that the strip search violated department policy. Van Blaricom also wrote that the three other Cody officers at the scene had concerns about Menig’s tactics.

Attorneys for Menig and the city of Cody have said Van Blaricom’s report “cherry-picked” information from the confidential internal documents and didn’t tell the full story.

The internal investigation was reportedly conducted three years after the fact, when a concerned Cody police officer brought a video of Menig’s search to the attention of Cody City Attorney Scott Kolpitcke.

Eells reviewed the internal report and the video of the incident before writing his report, though they’re not specifically discussed in his findings.

The Colorado Springs commander rejects the overall picture that Flores and his team have painted of Menig’s search.

“In this day and age, an officer no longer has the luxury of dismissing threats of a bomb. The plaintiff in this case (Flores) presented a real threat until proven otherwise,” wrote Thor Eells.

Flores’ complaint alleges that by the time Menig arrived on scene, Flores was an “a defenseless and already proven harmless, individual;” Van Blaricom similarly argued that Flores was only “intoxicated in public, and more probably than not, mentally ill and/or hallucinating” and “did not pose a reasonable threat to the officers or anyone else.”

Eells, however, says that conclusion downplays Flores’ actions and does exactly what the IACP guidelines warn officers not to do: to assume a suspected suicide bomber is acting innocently and ignore the threats.

“My personal training has included the instruction that often suicidal bombers ingest intoxicating substances to assist them in carrying out their criminal acts,” Eells wrote. “In this day and age, an officer no longer has the luxury of dismissing threats of a bomb. The plaintiff in this case (Flores) presented a real threat until proven otherwise.”

The civil case is currently scheduled for a March trial.

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