Part two of a two-part series
As detailed in Part one, four peace officers from Washington State and a firefighter from Colorado—all members of the police motorcycle club the Iron Pigs—were involved in a controversial altercation at a roadhouse with members of the Hells Angels during the annual bike rally last August in Sturgis, S.D. One of the IP’s, Seattle Det. Ronald Smith, as he was being choked and beaten, shot and seriously wounded one of the HAs.
The outlaw biker he shot was indicted for aggravated assault. Much to their surprise, considering that they had not initiated the violent conflict, the officers and the fireman were indicted on criminal charges as well.
We continue with our exclusive behind-the-scenes report.
THE CHARGES. To the accused officers and the attorneys they retained in South Dakota, their indictments seemed bafflingly—and alarmingly—bogus.
Smith had fired his Glock 23 in defense of his life, while being pummeled and strangled to the point of near unconsciousness. Yet he was charged with agg assault, a felony, the same as the biker who had allegedly attacked him without provocation.
He was also charged with perjury, another felony. In a sworn statement, he said that the Glock was his personal weapon. The prosecutor’s office had called his agency in Seattle and been told by email that the gun was department-issued. The two are identical in make and model, and the department was wrong. “Chicken shit at best” in any case, says one of the defense attorneys, Robert Van Norman. But without further checking, the grand jury indicted him for lying.
All five of the Iron Pigs, who’d readily admitted to being armed, were indicted for carrying concealed weapons in an establishment that derives more than half its revenue from alcohol sales. That’s against a misdemeanor offense in South Dakota, punishable by a $2,000 fine and up to a year in jail. But according to Van Norman, there was no posting of the restriction at the Loud American Roadhouse, the bar-restaurant where the shooting occurred, and the business has never been tested as to its revenue breakdown.
More important, however, the officers—Smith and Sgt. Dennis McCoy from Seattle P.D. and James Rector and Scott Lazalde from U.S. Customs and Border Protection—believed they were immune to CCW charges because of the federal Law Enforcement Officers Safety Act of 2004 (commonly known as HR 218), which, with few exceptions, allows off duty and retired peace officers to carry concealed in any jurisdiction in the U.S.
In the interest of public protection, LEOSA was intended to supersede state, county, and municipal regulations, according to Ted Deeds, chief operating officer of the Law Enforcement Alliance of America, which initiated and lobbied for the legislation for more than a decade before it was finally enacted. At least twice the law had been tested and upheld in court, Deeds says.
Some observers, both in and out of law enforcement, have questioned the judgment of the accused officers for socializing at a place where they might encounter outlaw bikers. Deeds, a former deputy sheriff and a retired part-time police officer, acknowledges that there may be “legitimate debate” on that subject.
But, he says, they were in “a public place where they had a legal right to be” and when their safety was jeopardized “they had an absolute right to defend themselves.” And, he felt strongly, they fully deserved to be shielded from criminal prosecution by LEOSA. “Once shit goes down, we want cops to come out okay,” he says emphatically. He volunteered his organization’s vigorous assistance regarding political contacts and intimate knowledge of LEOSA’s history to attorney Van Norman and his associate, Kenneth Orrock, in the officers’ defense.
Orrock, a new hire at the defense firm, Nooney, Solay & Van Norman in Rapid City, had just recently taken the bar exam; he would hear that he’d passed while this case was in progress. Before studying to be a lawyer, he’d spent 10 years as an Army counter-intelligence agent and about a dozen years as a deputy sheriff in California and South Dakota.
In his gut, he knew cops…and he especially felt the emotional impact of what lay at stake.
THE FALL-OUT. One of the accused officers—we’re calling him “Steven Shane”—spoke to Police1 on condition of anonymity. “This case put our lives through hell,” he says.
The Seattle officers were first placed on administrative leave, then reassigned to other duties. Smith went to communications and McCoy took accrued sick leave rather than accept reassignment. Those with Customs were suspended with pay for 30 days and “received a letter that threatened indefinite suspension without pay, with the possibility of termination,” Shane says. After the suspension, these officers were placed on unarmed light duty and forbidden to work overtime, significantly affecting their income. Every five days they “had to request an extension that could have been denied, creating tremendous anxiety,” Shane says. Everyone, of course, was subjected to I.A. investigations.
“I had numerous awards in my files, a very successful career,” Shane says. “Now it was in the media that we were in a ‘brawl’ in a ‘biker bar,’ indicted on ‘weapons charges.’ Neighbors stopped waving to me. People thought we were smuggling guns through the border. They said, ‘There must have been more that went on than what you said or you wouldn’t have been charged. You must not be telling the truth.’
“We had lawyer fees and trips back to South Dakota to pay for. We didn’t know what they might do to us back there. Would I lose my house? My job? Would I have to do jail time? One of the biggest Hells Angels chapters in the world is near here, in Vancouver. The HAs are one of the largest violent criminal organizations there is. Would they come down and retaliate? It all put tremendous strain on our families.”
“Psychologically,” says Van Norman, “nothing is harder for a law enforcement officer than being charged with violating criminal law. Plus, they got stripped bare during the criminal process. Home addresses, home phone numbers were floating around. Some of these officers have done very dangerous work. They were all very, very nervous about the general public knowing much about them.”
THE PROSECUTION. When the issue about Smith’s pistol was eventually resolved and it was shown that he’d been truthful about it being his personal weapon, the prosecutor, State’s Atty. Jesse Sondreal, dropped the perjury charge against him. Sondreal also dropped the aggravated assault when he became convinced that the detective had fired in self-defense. But he tenaciously continued to pursue the CCW count against the four officers and their federal firefighter companion that night, Eric Pingel from Colorado.
“I tried to talk to him, others tried to talk to him,” says Deeds, “but he 100% stonewalled people who were supporting the cops.”
Why? Shane still can’t figure it out, and even the attorneys who know the local territory can’t answer with certainty.
Some observers speculate that the prosecution and the grand jury wanted to “send a message” that violence won’t be tolerated at the annual bike rally, regardless of who’s involved; the event reportedly has gotten tamer in recent years compared to its notorious past, and the locals want to keep it that way.
Other sources cite “political ambition,” noting that with officers as defendants, the case was guaranteed to attract attention in a largely rural area where headline-grabbing opportunities are relatively scarce. “The prosecutor likely got more media play out of this than any other case in his career,” Deeds asserts.
Still others say that prosecutor Sondreal was misled early on and was too stubborn to back down. Van Norman, Orrock, and Deeds point out that the state’s attorney apparently relied on an erroneous claim made by a representative of the ATF regional office in Denver that LEOSA was not yet in effect as the law of the land. That was wrong; it has been in force since 2004, when it was signed into law by President Bush, with Deeds in attendance at that event. But as with the status of Smith’s gun, the truth did not surface until after the indictments.
According to Van Norman and Orrock, the prosecutor did offer their clients an “easy” out. If a circuit court judge approved, he’d let the defendants accept a “suspended imposition of conviction,” an option available under South Dakota law. In effect, Orrock explains, this meant they would plead guilty or “no contest,” the judge would “refuse” to enter the plea, and if they stayed out of trouble for six months, the case would be dismissed with no conviction or judgment on their record.
“They could have taken this and walked away and saved a lot of time, money, and notoriety,” says Van Norman. “But they turned it down. They wanted to clear their names.”
THE COURT. Last Nov. 3, nearly three months after the shooting, a hearing on motions by the Iron Pigs’ attorneys to dismiss the CCW charges was held in the Meade County Courthouse in Sturgis before Circuit Court Judge Warren Johnson. Eleven days later, the judge issued his memorandum decision.
The LEOSA statute, he wrote, “is clear in its intent to preempt state laws,” with only two exceptions: States can still “permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property,” and State laws can legally ban guns “on any State or local government property, installation, building, base, or park.”
Beyond that, States “cannot restrict qualified law enforcement officers” from carrying concealed “in any other manner,” Johnson stated.
Because none of the officer defendants in this case was retired, Johnson did not address aspects of LEOSA related to retired LEOs. But for active officers to gain protection of the federal statute, he pointed out that they must “regularly qualify” with and be “authorized to carry” a firearm, be in possession of “photographic identification issued by the governmental agency which employs” them, must not be subject to any disciplinary action, nor be under the influence of drugs or alcohol.
“It is beyond dispute that defendants Smith, McCoy, Rector, and Lazalde are ‘qualified law enforcement officers,’ ” Johnson wrote. “They were qualified to carry firearms, and at the time in question, they were not under the influence of alcohol or any other drug [and] they possessed photographic identification issued by their respective employers.”
Consequently, they were “exempt from prosecution under South Dakota State Law as a result of the Law Enforcement Officers Safety Act.”
While acknowledging that caselaw concerning the Act “is limited,” Johnson did cite as precedent one decision from another jurisdiction in New York v. Booth [862 N.Y.S.2d 767], where the court also ruled that the federal law “preempted prosecution under state laws when the defendant is a ‘qualified law enforcement officer.’ ”
Bottom line: Johnson ordered the indictments against the four Washington State officers dismissed.
“The fact that these officers stood and fought brought a victory for law enforcement officers everywhere,” says Ken Orrock, who has since left private practice and has joined the state’s attorney’s office in a neighboring county. LEAA’s Ted Deeds says Johnson’s decision was “hands down” the strongest court support of LEOSA yet. “Here the law was sustained where an actual use of force occurred,” he explains. “The two previous tests I’m aware of, in Eastern jurisdictions, involved only officers carrying, not using, firearms.
“Now, it should be crystal clear. In any state, if you’re a qualified officer and you present your ID, LEOSA is a bar to your being arrested or prosecuted for carrying a concealed firearm.”
The only loss in Johnson’s decision was for the firefighter, Erik Pingel. He did have a permit to carry a concealed weapon in Colorado and enjoyed reciprocal privileges in South Dakota. But not being a cop, he was subject to South Dakota law and thus was banned from going armed in a drinking establishment. The indictment against him would have to stand.
THE DEFENDANTS TODAY. Last December, Pingel finally pled guilty and accepted a suspended imposition of conviction. He paid a small fine, his gun was forfeited, and he is now in his six-month “good behavior” period. Smith and McCoy have resumed full duty on Seattle P.D. and have their guns back. For two weeks after the charges were dismissed, the two Customs officers were kept on unarmed light duty, and at this writing, more than seven weeks after Johnson’s decision, they are still in nerve-wracking limbo. Although the court in South Dakota cleared them of any culpability, their agency’s internal investigation drags on without resolution.
And there’s still the matter of being judged by the court of public opinion. Some critics have suggested that the officers fostered their own problems by joining the congregation of bikers at the Sturgis rally, where a cautious person might have predicted the likelihood of trouble.
“Bad judgment?” says Steve Shane. “That’s bullshit! Sturgis these days is mainly attended by respectable, family people. John McCain was there with his wife! It’s no different than going to a state fair—lots of entertainment, lots of vendors, lots to look at, a fun place to be. There’s a whole mix of life there other than criminals.
“Outlaw bikers are called 1%ers for a reason: they’re only 1% of the population that rides. There are more law enforcement motorcycle clubs than outlaw clubs, and there are more LEOs at Sturgis. We don’t go to places where the Hells Angels and Bandidos hang out. We aren’t out to flex our muscle. We’re there to have a good time.
“Believe me, I’ve seen more illegal activity at rock concerts than I’ve ever seen at a bike rally. These days you stand a greater chance of getting shot going to the mall than you do going to Sturgis.
“If this had been a case where some civilian was getting pounded by three HAs and about to lose his life and we had stepped in, we would have been heroes. People would have said, ‘Thank God cops were there with guns.’ ”
What do you think?
Related articles:
Off duty Seattle cop shoots Hells Angel
Seattle cop charged in Hells Angels shooting
Charge dismissed for cop who shot Hells Angel
Assault charge against cop who shot Hells Angel dropped
