Transcripts - March 22, 2008
1117
1 BEFORE THE WEBSTER COUNTY CIVIL SERVICE COMMISSION
2 CURTIS W. RUBY, )
)
3 Appellant, ) TRANSCRIPT
) OF
4 vs. ) PROCEEDINGS
)
5 WEBSTER COUNTY ) VOLUME IV
SHERIFF'S DEPARTMENT, )
6 )
Defendant. )
7 ------------------------)
8 The above-entitled matter came on for
hearing before the Webster County Civil Service
9 Commission, commencing at 8 a.m., March 22,
2008, at the Law Enforcement Center, 702 First
10 Avenue South, Fort Dodge, Iowa.
11 Commission Members: JANECE VALENTINE
DARREN DRISCOLL
12 BENNETT O'CONNOR
13 A P P E A R A N C E S
14 Plaintiff by: ROXANNE BARTON CONLIN
Attorney at Law
15 Roxanne Conlin & Associates
319 Seventh Street
16 Suite 600
Des Moines, IA 50309
17 (515) 283-1111
18 Defendant by: BRIDGET R. PENICK
Attorney at Law
19 Dickinson, Mackaman, Tyler &
Hagen
20 699 Walnut Street
Suite 1600
21 Des Moines, IA 50309
(515) 244-2600
22
23
24 Reported by: Nancy S. Warren, C.S.R.
25
1118
1 I N D E X
2 CURT RUBY
3 Examination by: Page
4 Ms. Conlin 1119, 1328
Ms. Penick 1248
5
Exhibit Offered/Admitted
6
AA 1286 1286
7 BB 1299 1300 (Sealed)
EE 1334 1334
8 GG 1305
HH 1310 1310
9 II 1307 1308
JJ 1309 1309
10 KK 1334 1334
MM 1308 1308
11
9 1330 1330
12 12 1330 1330
13 1330 1330
13 18 1206 1206
30 1182 1331
14 36 1331 1332
37 1207 1207
15 508 1246 1246
537 1332 1332
16
17
18
19
20
21
22
23
24
25
1119
1 P R O C E E D I N G S
2 MS. VALENTINE: Are the parties
3 ready to proceed?
4 MS. CONLIN: Yes.
5 MS. VALENTINE: Great.
6 Good morning. The witness is
7 reminded that he is still sworn, and you may
8 proceed with your testimony.
9 MS. CONLIN: Thank you.
10 DIRECT EXAMINATION (CONT'D.)
11 BY MS. CONLIN:
12 Q. I'd like to first talk briefly about
13 the MMPI that you took in 1997.
14 A. All right.
15 Q. Do you recall that? It's a part of the
16 record, and I just have a couple of questions
17 for you.
18 Was that test taken in May
19 of 1997 for the purpose of your job, your new
20 job here at the sheriff's department?
21 A. Yes, it was.
22 Q. And as a result of taking that test,
23 did anyone take any action against you?
24 A. No.
25 Q. Or comment in any way about anything
1120
1 that the MMPI said?
2 A. No.
3 Q. Or anything you were doing?
4 A. No.
5 Q. And the sheriff kept you on --
6 A. Yes.
7 Q. -- after that test?
8 We also heard some testimony from
9 Chief Deputy O'Brien that -- oh, I'm sorry -- In
10 2004, generally, was the department
11 short-staffed?
12 A. The department has been short-staffed a
13 lot over the last few years.
14 Q. Were you during that time frame, you
15 and others, limited on the amount of time that
16 you could take off as a result of the short
17 staffing?
18 A. Yes.
19 Q. There was a complaint against you that
20 we've looked at, I think -- No, no. I'm sorry.
21 It was before that complaint.
22 You were home periodically with
23 Rhonda and her mom; right?
24 A. Yes.
25 Q. All right.
1121
1 Exhibit X in the red book is the
2 complaint that we have discussed about your
3 going home early at the end of the shift. This
4 is 10-21-04.
5 A. Okay.
6 Q. Do you recall who you met with that is
7 recorded on Exhibit X?
8 A. May I take just a moment?
9 Q. You bet.
10 A. I met with Sheriff Mickelson, and at
11 that time it would have been Chief Deputy Chris
12 O'Brien.
13 Q. And Chris O'Brien is Jim O'Brien's
14 brother?
15 A. Yes.
16 Q. Do you happen to recall when Chris
17 O'Brien stopped being the chief deputy?
18 A. I don't know the exact date.
19 Q. Did he then become a -- Did he go down
20 in rank, or what happened?
21 A. He went back to his rank as sergeant.
22 Q. And did he subsequently leave the
23 sheriff's department?
24 A. He did.
25 Q. Was there a lap over the two O'Briens
1122
1 in terms of being chief deputy? In other words,
2 if the records reflect that on January 23rd,
3 2006, James O'Brien became chief deputy, then
4 would Chris O'Brien have been the chief deputy
5 on January 22nd?
6 A. I don't know.
7 Q. After you had your meeting with the
8 sheriff and with Chris O'Brien, did you --
9 were you careful to meet the requirements of
10 Exhibit X?
11 A. I was.
12 Q. Was there any subsequent complaint of
13 this nature?
14 A. No.
15 Q. Do you recall the drug bust that Brian
16 Mickelson was talking about in his testimony?
17 A. I do not.
18 Q. Do you recall the incident where he
19 said you drove by and something bad happened,
20 drove by --
21 A. Very vaguely on that.
22 Q. What can you tell us about that, if
23 anything?
24 A. What I recall may have happened is I think
25 I wanted to see where they were positioned early
1123
1 on into this thing because no one told me, and I
2 just wanted to do a quick, casual -- I don't
3 think I even went all the way around the square.
4 I think I took a right, started around the
5 square and took the next right, because I just
6 wanted to do a fast, there they are, and out of
7 there.
8 Q. All right.
9 MS. VALENTINE: Time out. The
10 commission is confused what incident you're
11 referring to. This isn't the trailer court?
12 MS. CONLIN: It may have been
13 Halligan. My notes do not accurately reflect
14 what it is, but it's testimony about -- Was it
15 stolen property or drugs or -- I can't remember.
16 MS. VALENTINE: Is this on the
17 square?
18 MS. CONLIN: Yes. Who testified
19 to that?
20 MS. VALENTINE: Yes.
21 MS. CONLIN: Well, somebody,
22 because I remember it vaguely, and I have a
23 note.
24 Q. Do you have any comment on those two
25 events that were the subject of testimony, the
1124
1 drug bust and driving around the square?
2 A. The only reason I have any recall on
3 the square is I recall some grumbling about it,
4 and I was confused as why there was grumblings
5 about it.
6 Q. Is it also possible that you might have
7 made a mistake in connection with either of
8 those events?
9 A. It's possible.
10 Q. Over the 28 years of your career in law
11 enforcement, do you think you might have made a
12 few mistakes now and then?
13 A. I bet I have.
14 Q. I want to now direct your attention to
15 the special election in which Sheriff Mickelson
16 was elected.
17 Though I know the record reflects
18 that you supported Lieutenant Stubbs, in terms
19 of your observation and based also on any
20 conversations you may have had with
21 Lieutenant Stubbs, how is Lieutenant Stubbs
22 treated by Brian Mickelson?
23 A. Lieutenant Stubbs right after the
24 election was put on nights for several years.
25 Q. Anything else?
1125
1 A. I don't know if this is applicable, but
2 Lieutenant Stubbs, Lieutenant Wilson and myself
3 had experienced some ransacking of either our
4 mailboxes and/or our file cabinets.
5 Q. All right.
6 A. And though there was no proof, we found
7 this suspicious.
8 Q. During the campaign, did you have any
9 visible means of supporting Lieutenant Stubbs?
10 A. I did.
11 Q. What was that?
12 A. I had a Stubbs sign in my yard.
13 Q. Were you, as far as you know, on the
14 Civil Service eligibility list for both your
15 hiring by the sheriff and your promotion to
16 sergeant?
17 A. Yes.
18 Q. You mentioned a mailbox ransacking.
19 Will you please tell us about that -- those
20 incidents?
21 A. If I would clarify, the ransacking
22 would have been primarily in Lieutenant Wilson's
23 file cabinet, but in my mailbox, there wasn't a
24 ransacking per se.
25 However, I had -- I always put
1126
1 the upcoming court dates on top of everything so
2 that I don't forget and miss court, and there
3 was one court date I wasn't sure about, and I
4 went to check my mailbox, and I couldn't find
5 it.
6 And I had several court dates
7 sitting on the top, so I started going through
8 my mailbox, and then I started noticing that
9 things were out of place, and I found my court
10 dates buried in papers that I can't imagine why
11 they -- how they could have got there.
12 And I felt that my mailbox had
13 been tampered with, and I wondered why it would
14 be with the court dates missing -- or misplaced.
15 Q. Did you make a complaint about that
16 situation?
17 A. I did.
18 Q. And I don't know what his rank was, but
19 did Kruse tell you the same thing that he told
20 us on the stand, which was it was the
21 secretary's fault?
22 A. Yes, he blamed the secretary.
23 Q. And had it ever happened before?
24 A. Not to my knowledge. Those secretaries
25 were always careful with at least my mailbox.
1127
1 I'm sure everyone else's as well.
2 Q. Did you complain -- To whom did you
3 complain about these events?
4 A. I didn't complain right away
5 because I wasn't sure what to think at first
6 with my situation, but then when I told
7 Lieutenant Wilson, he then told me about his and
8 Stubbs' file cabinet, and that's when I thought
9 it would be a good time to complain.
10 Q. And was anything done?
11 A. No.
12 Q. Did you speak with Jim O'Brien about
13 that situation?
14 A. No.
15 Q. Have you, to your knowledge, ever been
16 diagnosed as paranoid?
17 A. No.
18 Q. In connection with the ransacking of
19 your mailbox and other things of that sort, did
20 Deputy Strait tell you about a conversation that
21 he overheard? Please tell the commission.
22 A. I'm sorry.
23 Yes. A couple of years later --
24 I don't know why it came up or how it came up,
25 but -- No, wait. I do.
1128
1 A couple of years later
2 Deputy Strait told me that he had overheard
3 deputies laughing about my mailbox being
4 ransacked.
5 Q. Okay.
6 We're going to begin our foray
7 through the --
8 A. Or correction. Misarranged.
9 Q. Oh, before I go to these, I want to
10 also ask you, when did Rhonda change jobs?
11 A. I'm thinking about eight or nine months
12 ago, approximately.
13 Q. March of '07 sound familiar?
14 A. Yes, that would be in the ballpark.
15 Q. And was that for the campaign that you
16 planned?
17 A. No, it was not.
18 Q. Let's begin with the December 5th Tony
19 Thompson incident. Tell us what happened.
20 A. Well, it was a nice day until --
21 Q. Not that much detail.
22 A. Okay.
23 Q. Really.
24 A. I'm sorry.
25 I was very close to Moorland,
1129
1 less than a half a mile, if I recall, and the
2 call tripped out to the deputies that there was
3 an intoxicated male who would not leave the
4 residence in Moorland.
5 I immediately responded. I
6 radioed in that I was very close.
7 Upon arrival, there was a vehicle
8 parked in the driveway of the residence that was
9 running. I radioed that in.
10 I saw no one at the front door.
11 Looked like there was something going on toward
12 the more rear door or side door, and there was a
13 porch, if you will, back porch, enclosed that I
14 went into, opened the door because I saw people
15 in there, and there was -- there was -- whom I
16 recognized as Tony Thompson.
17 Q. You recognized him why?
18 A. Because I have fought with him before.
19 Q. Go ahead.
20 A. And there were two -- what appeared to
21 be very frightened females in close proximity
22 with him, and this was a very tight area, and it
23 was my understanding that there was a male
24 inside the house that was too afraid to come
25 out.
1130
1 I assessed the situation. Very
2 frightened women. It appeared to me that Tony
3 Thompson was in his -- what I would call his
4 usual state. He looked to me that he could be
5 drunk, high, or both.
6 And I asked the ladies what was
7 going on, and they both had their heads hung
8 down, and I said to one, I said, "I know you're
9 afraid of this man, but I am not. Please speak
10 freely. I'll take care of everything."
11 Q. Now, was Andy there at the time?
12 A. Right about there I noticed that Andy
13 was there, so I had some backup.
14 It was explained to me that he
15 had found his girlfriend there that he was
16 looking for. He had abused her, and she was
17 hiding from him, and he was trying to take her.
18 I then asked who owned the
19 residence or lived at the residence, and they
20 said the gentleman inside. I said, "Call him
21 please."
22 He reluctantly came to the door,
23 peeped out of the door. I asked if he
24 controlled this residence. He said he did. I
25 said, "Do you want this gentleman gone?"
1131
1 He said he did, and I said, "Sir,
2 you're going to have to leave. These people
3 don't want you here anymore."
4 Q. You're talking to Thompson now?
5 A. Yes, I was talking to Thompson.
6 I told him something to the
7 effect, "It looks like you've been drinking, but
8 I will give you a ride since I can't let you
9 drive."
10 And his response was no, and I
11 repeated, I said, "You have to leave or you'll
12 be arrested."
13 And he said no.
14 Knowing his history personally at
15 one point, looking at the situation, and he had
16 a large -- you know, a large Carhart coat on. I
17 was concerned there may be weapons. He is a
18 very physically strong man. He had just gotten
19 out of federal prison, so he was in pretty good
20 shape.
21 The first thing I wanted to do
22 was get him out of there, away from these women,
23 and get him in an environment which I could
24 control better, which I thought would be
25 outside, facedown on the ground.
1132
1 I told him he was under arrest.
2 He said something along the lines of no with
3 some added language, I'm sure.
4 I took him by the arm. I pulled
5 him as fast as I could past the girls, outside,
6 and took him facedown into the yard with the
7 assistance of Deputy Suchan.
8 Q. Well, did he just kind of lay down, or
9 was there a little bit of a struggle?
10 A. No. I took him by surprise by taking
11 him down quick, but once we got down, the fight
12 was on, and it lasted for some time. He was
13 incredibly strong, rigid.
14 Andy Suchan had one arm, thank
15 God, and I was trying to get his other arm back,
16 and he was trying to get up.
17 I had all my body weight up here
18 (indicating) at the top of his -- top of his
19 shoulders, lower part of his neck, and he was
20 lifting me a lot. He was bucking me, and I was
21 having a hard time hanging on.
22 He had the one hand that I didn't
23 have control of in a fence, and I was trying to
24 get his hand off that fence so I could get his
25 arm behind him. And he was very wild,
1133
1 screaming, crazy, throwing me around.
2 I finally got his hand off the
3 fence. I tried to get his arm back, and it was
4 like trying to move someone with a seizure. I
5 couldn't get that arm moved, and so I gave him
6 several blows to the muscle here (indicating),
7 to relax that muscle.
8 Q. By "here," you mean where?
9 A. In the tricep area.
10 Q. Thank you.
11 And did you ever give him any
12 knee strikes?
13 A. No. No, not in this case.
14 Q. All right.
15 When you called for help, who
16 else was on duty?
17 A. Deputy Halligan was also on duty that
18 day.
19 Q. Did he arrive promptly? Was he at the
20 LEC here?
21 A. It was my understanding he was at the
22 LEC.
23 Q. And did he, did Deputy Halligan arrive
24 promptly?
25 A. After we called for help while we were
1134
1 struggling with this individual, he probably
2 arrived between 5 and 10 minutes afterwards.
3 Q. All right.
4 And then you got him cuffed
5 eventually? Oh, go ahead.
6 A. He was -- We got him cuffed prior to
7 Halligan's arrival, but it took some minutes to
8 do this.
9 Q. Did you use pepper spray or Mace?
10 A. Yes. I -- At one point I wasn't sure
11 if we was going to be able to hang onto him. He
12 was getting away from both of us. I didn't know
13 if he had weapons or not, and I thought the best
14 thing to do was go ahead and blind him with
15 pepper spray. Should he get away from us, it
16 would disable him to away from us well if he
17 couldn't see, and I also didn't want him to be
18 able to see us if he had a weapon, and so I
19 ordered Deputy Suchan to pepper spray him.
20 Q. And did he react immediately to that?
21 A. No. He just screamed, but he was still
22 fighting.
23 Q. Even after the pepper spray?
24 A. Yes. The only thing the pepper spray
25 did was, I presume, blind him temporarily.
1135
1 Q. Okay.
2 So now you've got him cuffed.
3 What happens next?
4 A. We got him cuffed and -- Well, we
5 rested for a little while because we were both
6 pretty tired, but then we ordered him on his
7 feet. He didn't want to get on his feet.
8 We finally lifted him up, got him
9 on his feet, and started walking toward the
10 squad car, and he would drop down on me and push
11 into me.
12 And so this went on for a while
13 and I got tired again, and we got about halfway
14 to the squad car, and I just put him down on the
15 ground, and I just sat there with him and took
16 another break.
17 Q. On him?
18 A. Beside him. I kept my hand on his
19 neck, though, but --
20 Q. Okay.
21 A. -- but he was cuffed, so I didn't have
22 to sit on him like before.
23 Q. I'm curious. Did he know who you were
24 as well?
25 A. I don't know if he recognized me or
1136
1 not.
2 Q. All right.
3 A. But -- So we -- I mean, we, I rested
4 there for a little while, and then when -- I got
5 my wind back, and got him back up and took him
6 to the squad car, and then we tried to get him
7 seated, and he wouldn't sit down.
8 And I tried using my weight to
9 pull on him to bend him over, and that didn't
10 work, and this is about when Deputy Halligan
11 arrived.
12 Q. And did Deputy Halligan then assist you
13 in getting him into the squad car?
14 A. Yes. Deputy Halligan told the guy he'd
15 be hobbled if he didn't get in the car, and he
16 did comply to that.
17 Q. Hobbled means what?
18 A. Hog-tied.
19 Q. It's your car you're putting him in;
20 right?
21 A. Yes.
22 Q. Then you get in the car, and what
23 happens on your drive from Moorland to the LEC,
24 which takes about how long?
25 A. Well, going pretty fast, you know,
1137
1 maybe, roughly, 10 minutes.
2 Q. All right.
3 During the car ride to the LEC,
4 tell us what happened, please.
5 A. Oh, he was kicking and screaming and
6 using a lot of profanity and making a lot of
7 threats, and this just went on and on and on
8 until -- until we got close to the LEC, and then
9 he shifted gears on me.
10 Q. All right.
11 A. He then wanted to play the nice guy
12 role. He had heard me radio in, I'm sure, that
13 I was arranging a welcoming committee for him.
14 Q. When -- I know that this is a little
15 difficult for you to talk about, but I think
16 that you should tell the commission what kinds
17 of things he said and what was so particularly
18 difficult for you.
19 A. Yes. He said that when he got out, he
20 and his friends were going to look me up. They
21 were going to abduct my wife and I, and cut us
22 up, and have us watch each other die.
23 Q. All right.
24 And that was not the only threat,
25 I take it?
1138
1 A. No. They were ongoing, but that's the
2 one that stuck to my mind.
3 Q. And after -- When he said that, did
4 you -- Is that when you had the dispatch people
5 start taping?
6 A. Oh, yes. I follow you.
7 While he was going on with this
8 rant, I wanted to record this somehow. Of
9 course, I don't want to have that language go
10 over the radio, but I thought I needed some
11 evidence, so I made the decision -- While he was
12 saying these things, I keyed the mic and held it
13 there for just a couple of seconds, until I got
14 what I wanted, and then I radioed to dispatch,
15 and I said, "Hang onto that for me."
16 Q. When you got to the LEC, you've heard
17 all the testimony about you and what you did.
18 Why don't you tell the commission how you were
19 feeling and what really happened.
20 A. Well, I was pretty jacked up, a lot of
21 adrenaline, extremely angry with this guy, sick
22 of his threats. I was stressed.
23 Q. All right.
24 And so you got here. What
25 happens?
1139
1 A. They were waiting for him with the
2 chair. Had a pretty good group of guys, so I
3 knew, you know, that he would be handled well,
4 but there again, he was playing the nice guy
5 role by this time too, and he could see enough
6 to see that there was a large amount of guys
7 there, and so he, you know, became their friends
8 right away when they worked with him.
9 But as soon as I pulled up, I
10 wanted to remove myself from this guy as soon as
11 possible.
12 I got out of the car. I did use
13 profanity, and I said, "I don't want to be
14 around this guy" or "Keep this guy away from
15 me."
16 And then I went to the sheriff's
17 office, and I sat there for a while, and just
18 took some time to let that adrenaline wear.
19 Q. How much time did you take, Curt, if
20 you recall?
21 A. Probably a half hour or so, and I think
22 I worked a little bit on the reports, starting
23 the reports, but --
24 Q. When you came out of the car, did
25 Sheriff Mickelson say something to you?
1140
1 A. No. I don't think I really gave anyone
2 time to respond to me. I just conveyed very
3 rapidly that I needed to remove myself, and I
4 did so.
5 Q. Do you recall him saying -- Let me
6 start again.
7 Do you recall Sheriff Mickelson
8 saying something about some other felon?
9 A. While I was doing my cool-down and
10 after they had him in the chair and hauling him
11 up, Sheriff Mickelson came in there, and then he
12 told me, "Well, be glad it wasn't some other
13 guy" -- I don't know who he was talking about --
14 "or you wouldn't have -- you wouldn't have come
15 out ahead on this deal."
16 Q. All right.
17 How did you react to that
18 statement?
19 A. I couldn't understand why he said such
20 a thing, and I thought it was kind of
21 insensitive after all I had been through, and I
22 don't know. I just thought it was weird.
23 Q. And Deputy Suchan, was he -- How long
24 had he been on the force?
25 A. Oh, he was brand new. Not very long.
1141
1 I don't know how long, but very new.
2 Q. He stayed behind to do the paperwork
3 for a while?
4 A. He did, yes.
5 Q. All right.
6 And could you tell by observation
7 what impact this fight with Thompson had on
8 Andy?
9 A. Yeah. Well, no new guy should have to
10 go through this, you know, something that
11 intense, and I knew it bothered him, and I was
12 concerned that this would have a negative impact
13 on him.
14 Q. He is no longer with the force; right?
15 A. No.
16 Q. But it was months or a year or so
17 after?
18 A. A year or so, yes.
19 Q. What do you believe would have happened
20 if you had not been able -- if you had not been
21 there?
22 A. If I had not been there?
23 MS. PENICK: Objection. Calls
24 for speculation.
25 MS. CONLIN: Let me do it again.
1142
1 MS. VALENTINE: Rephrase the
2 question.
3 MS. CONLIN: You bet.
4 Q. Curt, as an experienced law enforcement
5 officer, someone who had been at that time in
6 law enforcement for some long period of time, 25
7 years, I believe at that time, what does -- what
8 would have occurred had you not been promptly on
9 the scene?
10 MS. PENICK: Same objection.
11 MS. VALENTINE: Overruled.
12 A. In probability, I believe that he would
13 have abducted that girl and beat her up.
14 Q. As an experienced officer, over the
15 years, what was your -- what had you learned was
16 necessary to do when such an intense
17 situation -- and then accompanied by horrible
18 threats against you and your wife -- what was it
19 necessary for you to do when you got here?
20 A. When I got here?
21 Q. Yes.
22 A. Take time out.
23 Q. Had you found it helpful in the past to
24 separate a prisoner and an officer as soon as
25 possible after a physical confrontation?
1143
1 A. Yes. It is at least normal for me, if
2 I know that an officer or deputy or law
3 enforcement officer has had conflict with the
4 prisoner, to intercede, remove that officer, and
5 interject a new officer so that we can get
6 things defused, stabilized, and hopefully hit
7 the easy button.
8 Q. And, in fact, is that what you're
9 taught at the Iowa Law Enforcement Academy to
10 do?
11 A. It's been a while since I've been to
12 the academy, but -- it is something that I may
13 have been taught, but it's something that I have
14 done throughout my entire career.
15 Q. After these events, did anyone ever
16 tell you until the day of your termination,
17 December 13th, two years -- more than two years
18 later, did anyone ever tell you that your
19 conduct in connection with this December 5th
20 incident was in question?
21 A. No.
22 Q. Did anybody ever talk to you about it?
23 A. No.
24 Q. Did anyone ever tell you that you were
25 subject to any kind of discipline as a result of
1144
1 your conduct on December 5th, 2005?
2 A. No.
3 Q. Did you fight previously with Tony
4 Thompson?
5 A. I did.
6 Q. Tell us, if you would, briefly what
7 occurred.
8 A. It was two or three years -- or maybe
9 even four years back. It was back a few years
10 when I was on the morning shift when we
11 occasionally would work by ourselves.
12 Q. By that, you mean you're the only
13 deputy on the road?
14 A. I'm the only deputy.
15 And I had responded to a call
16 that there was someone trying to kick down the
17 door of an acreage just north of Fort Dodge,
18 probably a couple of miles north of the
19 Starlight-on-169 area.
20 As it was, I was close again, and
21 I responded. I got there. I didn't see the
22 guy, but the people were inside, and they were
23 afraid. Even the male of the house wouldn't
24 come out. And they said that he was out there
25 somewhere.
1145
1 And so I went looking around, and
2 I found him inside one of their vehicles, laying
3 there, pretending to be nonresponsive.
4 And I shook him and I asked him
5 to wake up, please. No response.
6 Something didn't feel right, so I
7 went ahead, and I thought, "I'm going to put the
8 cuffs on this guy real quick."
9 And as soon as one cuff snapped,
10 the fight was on. And it was a good one too,
11 and it lasted for quite a while, and I
12 eventually did get this guy handcuffed by
13 myself, but, yeah, I had to work for it.
14 Q. You had no backup at that time?
15 A. No backup.
16 Q. And no opportunity to call either?
17 A. No.
18 Q. Have you seen his criminal record, Tony
19 Thompson's?
20 A. I saw it sometime back, and I didn't
21 study it, but it looked lengthy.
22 Q. After this happened the first time and
23 then again the second time with Tony Thompson,
24 did you learn from other officers around this
25 area that nobody ever took Tony Thompson into
1146
1 custody without a fight?
2 A. Pretty much. Well, unless he was
3 having a good day, but I had spoke -- spoke with
4 a Humboldt officer, and I don't remember who he
5 was, but we were just visiting, and I mentioned
6 Tony Thompson, that -- you know, if they had a
7 lot of problems with him since he lived closer
8 to Humboldt, and he had told me that one time
9 they were going to commit him, and it took five
10 or six of them.
11 Q. More recently, have you learned that
12 there was another incident involving him that
13 resulted in an assault on an officer?
14 A. Yes. Officer Chancellor, Jody
15 Chancellor, was attempting to arrest him at
16 Wal-Mart, and as a result, Chancellor's -- one
17 of his knees was damaged quite severely, and he
18 was off duty for months.
19 Q. You have indicated that you did, in
20 fact, cuss and swear?
21 A. Oh, yeah.
22 Q. Is that usual or unusual for you?
23 A. Well, if I'm fighting or have been
24 fighting, I do cuss when I fight.
25 Q. Okay.
1147
1 Probably saying pretty please to
2 Tony Thompson would not have been effective?
3 A. No.
4 And there's kind of a
5 psychological advantage to it too. I've been in
6 more fights than I could tell you, and it does
7 seem to work.
8 Q. Exhibit 503 is that lovely big picture
9 that we have seen of Tony Thompson. You don't
10 need to look. You know what we're talking
11 about.
12 A. I know what you're talking about.
13 Q. That was in your possession. Do you
14 recall why?
15 A. Yes. I wanted to let my wife see what
16 he looked like should he come around.
17 Q. Did you talk to Rhonda about what had
18 happened?
19 A. I did.
20 Q. In his testimony, Sheriff Mickelson
21 said, "Officers deal with this on a daily
22 basis."
23 Is that true?
24 A. Thankfully, not.
25 Q. Such a fight like the one that you had
1148
1 relatively unusual?
2 A. Yes.
3 Q. Is it also customary for officers,
4 other officers to assist in removing a prisoner
5 from a squad car?
6 A. Yes, if they're violent or
7 noncompliant.
8 Q. Did you learn sometime much, much later
9 that Deputy Suchan was going to be interviewed
10 about this situation?
11 A. I had heard, and I don't recall now
12 from whom, that approximately a year or so later
13 Chief Deputy O'Brien had talked with Andy Suchan
14 about this incident, asking him if I had done
15 anything wrong.
16 Q. Okay.
17 What did you do?
18 A. I didn't do anything, but I certainly
19 began to wonder.
20 Q. Let me see if I can refresh your
21 recollection, Curt, on two things.
22 When you learned -- Is it
23 possible that you learned before he was
24 interviewed, and called him and spoke to him?
25 A. Yes. That is possible, yes.
1149
1 Q. And that he was very concerned about
2 getting in the middle of things?
3 A. Yes.
4 Q. Okay.
5 That he couldn't understand why
6 this was the subject matter of an interview at
7 that point in time?
8 A. Yes.
9 Q. So let's go back a minute.
10 At that point in time, whenever
11 Andy Suchan was going to be interviewed or had
12 been interviewed, did that cause you to wonder
13 whether or not your conduct was in question?
14 A. It did.
15 Q. Did anybody at that point in time speak
16 to you yourself about this?
17 A. No.
18 Q. Let us talk about number 2, which is a
19 sort of general discussion about the month of
20 January of 2006, and in number 2 it is said that
21 you openly expressed your dislike and
22 discontent for Sheriff Mickelson, telling
23 Chief Deputy O'Brien, "He couldn't stand
24 Mickelson, and he would get even with
25 Sheriff Mickelson even if it meant a fight to
1150
1 the death."
2 That's the allegation. Please
3 tell us, do you remember a conversation?
4 A. I do.
5 Q. Okay.
6 Please tell us what your best
7 recollection is.
8 A. I was in the sheriff's office in the
9 deputies' room, and Chief Deputy O'Brien was new
10 to his position, and he had approached me,
11 asking me questions about myself and
12 Sheriff Mickelson.
13 Q. What did you say, as best you recall?
14 A. I told him that we didn't -- you know,
15 or at least I had issues with Sheriff Mickelson
16 because of his callus attitude toward me when I
17 was trying to spend some time with my wife, as
18 much as I could, when her mother was sick.
19 Q. All right.
20 Did Sheriff Mickelson apply to be
21 sergeant at the same time that you did?
22 A. Yes, he did.
23 Q. And you were the person selected at
24 that time?
25 A. I was.
1151
1 Q. Did you ever, ever say anything like
2 you were going to get even, even if it meant a
3 fight to the death?
4 A. Well, that sounds extreme. I'm certain
5 I didn't use that language.
6 If I did -- and I don't think I
7 did -- I certainly wouldn't have meant we were
8 going to go gladiator, but my recall, as vague
9 as it is, is that I said something to the effect
10 of, if I was -- if I was wrongfully accused of
11 anything, or something along that line, that I
12 would go the whole distance or take it all the
13 way, or something like that.
14 Q. All right.
15 Did anyone ever speak to you
16 about the conversation you had with
17 Chief Deputy O'Brien in January of 2006?
18 A. No.
19 Q. Anyone tell you that you could be fired
20 or disciplined in any way for what you said?
21 A. No.
22 Q. In that conversation, did you mention
23 to Chief Deputy O'Brien the problem created for
24 you by the sheriff when Rhonda's mom was dying?
25 A. I don't recall how much detail I went
1152
1 into with him, but I think I spoke my case
2 somewhat to him, as I did to Sheriff Mickelson.
3 Q. Did you say to Chief Deputy O'Brien
4 that if -- in substance, if Sheriff Mickelson
5 wanted to make things right, that he should
6 apologize to Rhonda for his callus attitude when
7 her mother was dying?
8 A. Yes. I was responding to one of his
9 questions, and he asked me, he said, "Well, what
10 would it take to make things right or better
11 between you and Sheriff Mickelson?"
12 And I told him that I thought,
13 given the circumstances, that Sheriff Mickelson
14 owed me and Rhonda an apology.
15 And his response was, "That will
16 never happen."
17 Q. And it never did, did it?
18 A. Not yet.
19 Q. In number 3, that's another generalized
20 remark. In February of 2006, Sergeant Ruby
21 again expressed to Chief Deputy O'Brien his
22 displeasure with the department and his dislike
23 for Sheriff Mickelson.
24 Did you initiate that
25 conversation, or do you remember this
1153
1 conversation?
2 A. I don't remember anything about this
3 one.
4 Q. I take it nobody told you that you
5 could be fired or disciplined for any such
6 conversation, if it occurred?
7 A. No.
8 Q. Let's move to 4, which is the
9 March 30th incident and talk about what
10 happened. Tell us, please. Do you remember
11 this whole thing, I think, right, the March 30th
12 time when there was only Deputy Strait on duty?
13 A. Right.
14 Q. And your recollection is different than
15 his, right, of when you knew -- or did you know,
16 and when did you know it?
17 A. Okay.
18 I knew that that shift was
19 short --
20 Q. Okay.
21 And I understand this is to your
22 best recollection.
23 A. Right.
24 Q. Okay.
25 A. To my best recollection, I learned that
1154
1 that shift was short later in the day on
2 March 30th when I had contact with Strait and he
3 had told me that when he came on shift, it was
4 short, and they had to find somebody to cover
5 for it.
6 Q. All right.
7 When you talked to Deputy Strait,
8 he doesn't -- As I recall it, I don't think he
9 remembers actually talking to you, but did
10 you -- What did you expect would happen as it
11 had happened in other -- on other occasions when
12 a shift was short?
13 A. They had been using reserves.
14 Q. All right.
15 Also, calling in people, working
16 overtime, having, you know, somebody do a shift
17 and a half?
18 A. Right. If a shift is short, yeah, they
19 call people in to cover for it.
20 Q. And we've displayed some, but certainly
21 not all of the occasions that the schedule at
22 least says that the shift was short.
23 A. Right.
24 Q. And did anybody else ever get any kind
25 of criticism as a result of not -- you know, not
1155
1 having anybody, any more than one person on the
2 shift, to your knowledge?
3 A. No.
4 Q. Was this during a time, again, when
5 there was an increased workload, and everybody
6 was pretty fatigued?
7 A. Yeah. We -- we were all running pretty
8 tired around that time period, and I don't
9 recall why. I think it's -- For some reason,
10 the workload was just high that month, or last
11 couple of months, but, yeah, we were all tired.
12 We were all tired.
13 Q. On March 30th, 2006, was Rhonda sick?
14 A. Yes.
15 Q. Not desperately sick --
16 A. No.
17 Q. -- but just not feeling well?
18 A. No.
19 Q. And did you spend some time with her on
20 that day at home?
21 A. I did. I was -- I was working on a
22 project down in the basement, and Rhonda was
23 home sick.
24 Q. All right.
25 Did you receive -- Did
1156
1 Chief Deputy O'Brien call your home?
2 A. Yes, he did.
3 Q. And did you or did you not answer?
4 A. I did not answer.
5 Q. Why?
6 A. Well, like I said, I'm in the middle of
7 a project. It's my day off, my wife is sick. I
8 didn't know what he wanted, but I figured if
9 there was a possibility of a callback, I wasn't
10 wanting to go back, and so I chose to ignore
11 that phone call.
12 Q. All right.
13 In retrospect -- in retrospect,
14 perhaps you should not have done that. Do you
15 agree?
16 A. Correct.
17 Q. We've seen this schedule a great plenty
18 of times, the new schedule document of
19 March 2006, which is Exhibit 528, the blank one,
20 the kind of blank one, this --
21 A. Yes.
22 Q. Do you have -- Are you responsible for
23 filling out Exhibit E, the one that's got the
24 W's and the V's and the S's on it?
25 A. No.
1157
1 Q. Who does that?
2 A. Chief deputy.
3 Q. All right.
4 A. At that time.
5 Q. So in March of 2006 -- I do have to put
6 this up.
7 Do you see all this handwriting?
8 A. Yes.
9 Q. And is any of that handwriting yours?
10 Do you want to look at it more closely?
11 A. Not to my knowledge, it isn't.
12 Q. Okay.
13 And in the morning of March 30
14 of 2006, you can see that -- and this
15 (indicating) is my writing, my circle -- the
16 schedule also reflects only one -- one person on
17 duty; correct?
18 A. It appears so.
19 Q. All right.
20 And it's blank down here at the
21 bottom (indicating), the detectives. There's
22 nothing in there.
23 A. Right.
24 Q. Do you know why that would be? Does
25 that mean they aren't there, or do you not know
1158
1 what that means? It could mean other things?
2 A. Well, it could mean two things. It
3 could mean that they were there and they hadn't
4 filled in that they worked yet, or they were not
5 there for reasons not indicated.
6 Q. You recall the testimony, I believe, of
7 either -- Well, I'm not sure. I think it was
8 Chief Deputy O'Brien about Richardson just going
9 AWOL?
10 A. No.
11 Q. Have you ever seen the vacation slip,
12 if any, that Deputy Richardson filled out to get
13 that day of vacation on March 30th, 2006?
14 A. Not that I recall.
15 Q. And if, in fact, a deputy had simply
16 failed to show up, would that likely have been a
17 topic of conversation here at the LEC?
18 A. Yeah, it could very well have.
19 Q. Did anyone challenge your conduct in
20 connection with this March 30th matter?
21 A. Not immediately.
22 Q. All right.
23 Let's look at 5. This records a
24 conversation that you had -- Let me begin again.
25 This charge number 5 says that you had a
1159
1 conversation with Chief Deputy O'Brien on
2 April 10th. Is that the first time that you
3 were ever spoken to about March 30th?
4 A. No.
5 Q. When before that?
6 A. It would have been sometime when I came
7 back on my two days off, maybe the first day of
8 work to the second, somewhere in that proximity.
9 Chief Deputy O'Brien had talked
10 to me about that there was a shift shortage, and
11 I explained to him that I didn't know that there
12 was going to be a shift shortage, and I told him
13 that, you know, "I haven't been paying attention
14 to the schedule," and that I hadn't had any
15 involvement, really, since he became chief
16 deputy with scheduling or, really, doing
17 anything with that schedule.
18 And he said something like,
19 "Yeah. I'm the one that's doing the scheduling.
20 It's my fault, and just wanted to know, and
21 well, there it is."
22 I thought it was done with, and
23 that was pretty much the end of the
24 conversation.
25 Q. Then on April 10th he called you in;
1160
1 right?
2 A. Yes.
3 Q. All right.
4 Do you remember this conversation
5 at all?
6 A. I do remember this one.
7 Q. All right.
8 A. He calls me in, and I sat down, and I
9 don't know what he wants to talk about, but then
10 he starts telling me that he knows that I knew
11 that that shift was short.
12 And I said, "No, you don't."
13 And he said, "I do too."
14 And I said, "Jim, we talked about
15 this. You can't possibly know if I knew that
16 that shift was short, and you're, frankly,
17 talking kind of crazy."
18 And he kept pushing this in kind
19 of an interrogation style, and I was put off on
20 it -- or put off by it, and I just said, "Look,
21 I'm not going to listen to this," and I left.
22 Q. All right.
23 In his own notes he says that
24 when he opened the conversation, that you said
25 something like, "I don't understand what you're
1161
1 talking about."
2 A. Very well could be.
3 Q. All right.
4 Were you evasive in any way?
5 A. Well, I probably wasn't -- I probably
6 could have responded better.
7 Q. All right.
8 And he says you said -- He asked
9 you why you were angry and being belligerent.
10 Do you remember any words like "belligerent"?
11 A. No.
12 Q. And he says that you said, because
13 of -- and this is in Exhibit D. He said that
14 you said, "Because of this nonsense and I don't
15 like your accusations" when -- Okay. I have to
16 start again.
17 He asked you why you were so
18 angry and belligerent, but you don't remember
19 the belligerent word.
20 A. No.
21 Q. And you said, "Because of this nonsense
22 and I don't like your accusations."
23 Do you remember something like
24 that?
25 A. Yeah, I said something along that line.
1162
1 I did.
2 Q. And did you get up and say, "I've had
3 enough of this," and leave?
4 A. I did.
5 Can I reanswer a question?
6 Q. Yes, please, if you made a mistake.
7 A. Just for clarification.
8 Yes, I was evasive. I didn't
9 want to let him know that they were calling me,
10 and that I purposely would not answer.
11 Q. That reminds me. I need to -- Oh, no,
12 I don't.
13 Was it around in this -- the
14 spring of 2006 that you made a tentative
15 decision at least to run against the sheriff?
16 A. I've had some days to think about this,
17 and it seems that around maybe the end of 2005 I
18 had made the decision that I was going to run
19 for sheriff in 2008. However, this wasn't
20 something that I vocalized a lot there, except
21 for people who were very close to me.
22 Q. All right.
23 When do you think that you
24 started to vocalize about running?
25 A. I'm going to say -- I'm going to say
1163
1 around the summer of 2006, somewhere in there I
2 started to get more vocal about it, and tell
3 more people that I was -- that I intended to
4 run.
5 Q. All right.
6 And some of the people were
7 around in the law enforcement center or --
8 A. Yeah.
9 Q. -- or at least people that you
10 socialized with and --
11 A. That I normally socialized with, yes.
12 Q. Let's move to number 6, which is the
13 April 21, 2006 charge, and in that charge it
14 says that you spoke with Chief Deputy O'Brien.
15 I'm sorry. He spoke to you.
16 Did that conversation also occur
17 in his office?
18 A. It probably did. These following
19 conversations about this issue, I don't recall
20 any of them with any clarity.
21 Q. All right.
22 And it was a long time ago?
23 A. It was.
24 Q. And I just want your best recollection.
25 Do the three conversations that
1164
1 are recorded as a part of the charge run
2 together in your mind?
3 A. Yes, they do.
4 Q. All right.
5 He -- Okay. We're now about --
6 what are we -- six weeks or so, three weeks from
7 the time that the March -- of the March 30th
8 incident, and he talks to you again, and he says
9 you became enraged and loud and pointed your
10 finger.
11 Do you know whether that's true
12 or not?
13 A. Not normally a finger-pointer. I don't
14 recall pointing my finger. I may have gotten
15 loud, and I may have expressed an unhappiness or
16 even some mild anger about this because --
17 because I'm getting tired of hearing about it.
18 Q. Was a part of the reason that you were
19 tired of hearing about it because this happened
20 all the time?
21 A. It doesn't happen all the time, but it
22 does happen, you know, on occasion, and I've
23 never known it to be such an issue.
24 Q. In his recordation of the incident, he
25 says you said, "Those are accusations and I
1165
1 don't appreciate it."
2 Do you recall whether you said
3 that or not?
4 A. I may have.
5 Q. Did you stare at him in a disrespectful
6 and intimidating manner?
7 A. Yeah. He may have interpreted it as
8 that. I was standing my ground.
9 Q. All right.
10 A. And like I said, I was evasive and
11 defensive on that issue.
12 Q. All right.
13 Did he say to you that you, the
14 sergeant, were solely responsible for ensuring
15 the shift was covered and for the safety of
16 subordinate officers?
17 A. He may have, but I don't have a recall
18 on that.
19 Q. Do you remember saying something like,
20 "I don't appreciate this, and I think you're out
21 of line"?
22 A. No, but I may have said something like
23 "I don't appreciate this."
24 Q. Did you ever receive any discipline for
25 the April 21st conversation?
1166
1 A. No.
2 Q. Did anybody tell you that you could be
3 fired as a result?
4 A. No.
5 Q. Number 7 is a May 12th, 2006
6 conversation, and in the document itself there
7 are no specifics. In the document that is the
8 charge -- which is the only one you saw before
9 these proceedings; right?
10 A. Yeah, yes.
11 Q. The formal charge?
12 A. Yes.
13 Q. You never saw Exhibit D, which are the
14 notes of Chief Deputy O'Brien before this
15 proceeding; correct?
16 A. No, I did not.
17 Q. So the May 12th conversation is very
18 general. It says you expressed your displeasure
19 with the department and "stated that if anyone
20 from the Department ever wanted to contact him
21 while off duty that they should forget it
22 because he would make certain he was not
23 available."
24 Did you say that, or that in
25 substance?
1167
1 A. Yes, I did.
2 Q. And he says you left the office, and
3 then you came back. Tell us about that.
4 A. Again, they were inquiring as to why I
5 didn't come in, or something to do with this --
6 this shift shortage. I don't recall the content
7 of the conversation at all.
8 I left, and then I thought -- I
9 just got mad, and I thought, "This is it. I'm
10 going to put a stop to it."
11 I went in there, and I just told
12 them both, "Look, I pay for these phones. I'll
13 answer them when I want to."
14 Q. All right.
15 A. And then I left.
16 Q. Did that happen in his office?
17 A. In Chief O'Brien's office.
18 Q. All right.
19 And was anybody else in the
20 office?
21 A. No.
22 Q. Let's look at 8. 8 is the charge that
23 you were not following the rules with respect to
24 your community service activities in teaching
25 self-defense to women and talking with church
1168
1 kids about scuba diving.
2 Did you ever see or -- Let me
3 start again.
4 The two, and now I guess three --
5 There are three exhibits with respect to this,
6 the first of which is Defendant's Exhibit J. It
7 is the one for Saturday, July 15th, 2006, and it
8 identifies you as Sergeant Curt Ruby of the
9 Webster County Sheriff's Department.
10 Did you see that at the time?
11 A. No.
12 Q. And did you have anything at all to do
13 with its preparation?
14 A. No.
15 Q. The second one is Plaintiff's
16 Exhibit 24, and that's for the September 30th
17 women's self-defense class.
18 Did you ever see Exhibit 24
19 before -- at some point I know you did. Maybe
20 shortly -- Maybe you saw this one. Do you know?
21 A. I saw it posted at Hemann's --
22 Q. Oh.
23 A. -- on their door, but not out and
24 about, and that was when I was going into the
25 class, or getting ready to do the class.
1169
1 Q. Did you tell Chance that it was
2 inappropriate for him to list you as
3 Sergeant Curt Ruby of the Webster County
4 Sheriff's Department?
5 A. I didn't tell him it was inappropriate,
6 but I told him it was potentially, you know,
7 problematic.
8 Q. Okay.
9 A. And I just told him that it would be
10 best if we left that out in the future.
11 Q. All right.
12 And that never happened again?
13 A. No. It was remedied.
14 Q. And the last one has to do with the
15 church camp -- oh, before we leave the
16 self-defense courses, can you give us a little
17 bit of detail about what you're teaching and how
18 often you have taught women self-defense?
19 A. I taught it at the college maybe back
20 around '95, somewhere around there. I did it to
21 the adult education, and I had done it -- oh, I
22 done it probably off and on for a couple of
23 years for them.
24 And then on occasion a woman's
25 group may call me, and like a woman -- a
1170
1 Republican group over at Calhoun County -- I
2 don't know their official name, but I went over
3 and did one for them.
4 And just whenever I was called
5 up, I would go ahead and do a presentation of
6 that nature for women.
7 Q. On your own time?
8 A. Yes.
9 Q. Without being paid?
10 A. No.
11 Q. And the reason that you devote your
12 time to this teaching of self-defense to women
13 is what?
14 A. To empower women, and just good
15 community service.
16 I'll have to back up and say I
17 did get some pay with the adult education at the
18 college back then.
19 Q. And in each and every time that you
20 have taught this course, have you at the
21 beginning of the class explained to the group
22 that you're not acting in any way for the
23 sheriff's office?
24 A. Yes.
25 What I teach is controversial,
1171
1 and I make sure that that is known, that I don't
2 represent the department for them for that
3 reason, because I don't want problems coming
4 back in the department.
5 Q. Well, how could teaching women
6 self-defense be controversial?
7 A. Arguably, of course.
8 I teach what to do if the
9 avoidance plans don't work. If things are very
10 bad, what you can do, and that would involve
11 breaking fingers and going for eyes and stuff
12 like that, so some may argue that that would be
13 controversial.
14 Q. Okay.
15 Exhibit 11 is your outline for
16 2006, and was that what you used to talk from?
17 A. That was prior to my PowerPoint. I had
18 a rough outline.
19 This was the first time in a long
20 time that I had been asked to do this, and so I
21 dug up old notes and used those. After that I
22 put together a PowerPoint, but it also has a
23 disclaimer in it.
24 Q. That's Exhibit 28 ?
25 A. I would presume so.
1172
1 Q. All right.
2 Then let's talk about the
3 church -- oh, wait a minute. I'm sorry.
4 And you had the -- both --
5 I think both Sheriff Mickelson and
6 Chief Deputy O'Brien have admitted that you did,
7 in fact, have permission from them directly to
8 teach these two courses; correct?
9 A. Yes.
10 Q. And all that you understood you were to
11 do was to provide the disclaimer; correct?
12 A. Yes, and I offered that to them when I
13 got permission to assure them that I was going
14 to have one in place. They didn't bring it up,
15 but I did.
16 Q. Now the church, your church group, this
17 is the First Presbyterian Church of Fort Dodge.
18 Tell us about the -- what you did in connection
19 with these children and scuba diving.
20 A. I was contacted -- and I don't recall
21 exactly how -- by someone from the church
22 wanting a scuba diver to talk about scuba
23 because they were going to have summer camp in
24 Okoboji, and some of the kids were interested in
25 taking some scuba lessons there. And they
1173
1 wanted me to just talk about my experience and
2 show the equipment and just go over the basics
3 with them, and then from there they could decide
4 if they were further interested before signing
5 up.
6 Q. How long was that, about? Do you
7 remember that discussion you had?
8 A. The presentation itself, length?
9 Q. Yes, yes.
10 A. I would say 45 minutes, somewhere in
11 there. They wanted to keep it fairly brief.
12 Q. To your knowledge, in any way were you
13 identified with the sheriff's department?
14 A. I don't recall if I told them I was
15 with the sheriff's department or not. I may
16 have, but I also let them know that I was also
17 on the dive team that worked with the sheriff's
18 department. I connected it to let them know
19 how -- that I had some experience with search
20 and rescue, trying to make it interesting.
21 Q. The exhibit that you had in connection
22 with this is 29, and we've already looked at
23 that, and it thanks you and does not identify
24 you as a sergeant; right?
25 A. Right.
1174
1 Q. Or in any way connected to the
2 department?
3 A. No.
4 Q. And, in fact, you also had permission
5 to do this; right?
6 A. Yes. My recall is that I spoke with
7 Jim O'Brien and let him know that I was going to
8 do this. His recall is different, but this is
9 normal for me to let them know if I'm doing a
10 presentation to avoid problems, and I'm pretty
11 sure I did let him know.
12 Q. Did anybody ever ask you about these
13 three events prior to December 13th of 2007?
14 A. No.
15 Q. Did you have any idea whatsoever until
16 you were fired that your conduct was in
17 question?
18 A. No.
19 Q. The presentation that you made to
20 women, you have been doing that since the
21 early -- late '80s, early '90s?
22 A. Early '90s.
23 Q. And let's move to the number 9. That
24 is prior to August 2007, I think, which is
25 really -- we're sure it's 2006, aren't we?
1175
1 MS. PENICK: Well, no, no.
2 MS. CONLIN: Okay.
3 MS. PENICK: Prior to August, so
4 it's from July 2006 through 2007. Do you see
5 that?
6 MS. CONLIN: All right. Maybe I
7 misspoke then.
8 Q. But in any event, you -- It's a general
9 allegation.
10 During the time that
11 Sergeant Ruby was assigned to the night shift,
12 Sheriff Mickelson and Chief Deputy O'Brien
13 received negative feedback from other deputies
14 concerning Sergeant Ruby's attitude, demeanor,
15 lack of attention to duty, motivation, and his
16 overall displeasure with the department.
17 It is, in fact, quite true that
18 you expressed and felt displeasure with the way
19 that this department was being run; correct?
20 A. Yes, but that's taken out of context.
21 Q. Okay.
22 A. It's -- or inflated, rather.
23 I have to be careful what I say
24 about the department because I'm aware it's
25 against department policy.
1176
1 Also, you know, wanting to be --
2 you know, wanting to be a future candidate for
3 sheriff, frankly, I don't know what my
4 parameters are, and so I try to tone it down, so
5 to speak, or not get overboard on that type of
6 language.
7 Q. All right.
8 The three deputies who apparently
9 said that, accuse you of these -- of having a
10 bad demeanor and attitude and so on are
11 Halligan, Walter, and Suchan. When you heard
12 those three names for the first time yesterday,
13 did the fact that Halligan was complaining about
14 you surprise you in any way?
15 A. No.
16 Q. All right.
17 Did anybody ever talk to you
18 about the complaints made, or allegedly made
19 against you?
20 A. No.
21 Q. Oh, here is something I want you to
22 speak with the commission about. In Exhibit D,
23 the document you didn't see until the
24 proceedings, Chief Deputy O'Brien says, "I was
25 informed of a statement Sgt. Ruby said to a
1177
1 subordinate to the effect that, 'he really
2 enjoyed being back on nights as it allowed him
3 plenty of time to park in a cemetery, read
4 books, get out and stretch and practice Tae Kwon
5 Do moves.'"
6 Tell us what you recall about
7 that allegation.
8 A. Keeping it light and joking with the
9 guys, I told them, if you ever see me dancing in
10 the cemetery or behind the school, that I was
11 practicing what they called forms.
12 And, you know, I did get out, and
13 I would stretch and do those for a few minutes
14 before I drove around again.
15 Q. All right.
16 A. It would look silly if somebody didn't
17 know what I was doing.
18 Q. All right.
19 Did anybody ever tell you or
20 speak to you or discipline you in any way for
21 the allegations in 9?
22 A. No.
23 Q. From Chief Deputy O'Brien's testimony,
24 he mentioned Thode and Lizer, the police
25 officers, and the fact that they said that you
1178
1 had a lot of pent-up anger.
2 Did you, in fact, feel angry?
3 A. Yeah, I did. Lizer saw some of it, but
4 it was brief. I was just walking by him, and I
5 was verbally grumbling about Halligan.
6 Q. All right.
7 And what about Halligan?
8 A. Well, I would just -- I had just been
9 informed, you know, that our shift was going to
10 run short because we had to sit on this house.
11 I had concerns --
12 Q. Okay, wait. We're in --
13 A. All right.
14 Q. I think, Curt, we're in -- Well, maybe
15 not. Maybe it is.
16 If it's August of 2007, then it
17 could be what -- this is after the search
18 warrants, so I'm sorry to have interrupted you.
19 Go ahead.
20 A. Shall I continue where I was?
21 Q. Yeah, yeah. Please, if you remember.
22 A. All right. Clarifying, when I hear
23 this complaint from Lizer, which is what I think
24 it was about. Does that help?
25 Q. Yes.
1179
1 So the only time you know of when
2 you expressed any concern to Lizer was in
3 connection with a search warrant and being
4 called on to sit on the house?
5 A. I may have griped to him, but if I did,
6 he's a supervisor. I really can't say a whole
7 lot to a supervisor, even though he's a police
8 officer at the time too, so if I griped, it had
9 to be pretty general and pretty light and pretty
10 short, but I don't really recall anything about
11 it.
12 Q. Are there other people here, deputies,
13 even ranking officers, who occasionally grumble
14 about something happening on their jobs?
15 A. Yeah. Most of us gripe from time to
16 time.
17 Q. 10, the search warrant.
18 A. Okay.
19 Q. September 8 -- in looking at the
20 records now, we know that it was around the
21 midnight time, roughly.
22 Tell me what happened that night
23 as you recall it.
24 A. All right.
25 I was called to the location, and
1180
1 I met with Jim O'Brien, and standing near him
2 was Deputy Halligan, and I was being informed
3 that we were going to have to watch this house
4 and secure it until they could do something with
5 it in the morning.
6 I expressed my concerns, of
7 course, about our being short, and I think this
8 has all been covered. Do you want me to go over
9 it all again?
10 Q. Not particularly, no.
11 A. All right.
12 Q. I think that in large measure, aside
13 from assigning motivation to you, the facts of
14 what happened, your expression about how worried
15 you were about what might happen, I think
16 they're more or less agreed to, so I don't think
17 we have to go through that.
18 You did leave; right?
19 A. I left to get some food.
20 Q. Did you ever disobey any order of any
21 kind in connection with this?
22 A. No, I didn't.
23 Q. Okay.
24 And I'm uncertain what the
25 charged refusal to obey an order is, but would
1181
1 you ever intentionally disobey an order?
2 A. Only if I thought it was immoral or
3 unlawful or harmful in some way, that I just
4 thought it was unethically sound, I would
5 question it.
6 This one I did question, but I
7 did follow the order.
8 Q. And you questioned it because of
9 concern about something bad happening?
10 A. Safety, yes.
11 Q. And you were given a choice as to
12 whether it would be you sitting on the house or
13 Walter sitting on the house, and you said you
14 would do it. Tell us why.
15 A. Well, being an older guy, I don't mind
16 sitting, reading a few magazines, practicing
17 forms, so it doesn't bother me; but for a newer
18 guy, because I used to be one, it's not fun just
19 to sit there in front of a house.
20 And I thought, "If I just tell
21 Tony, look, stay in the Fort Dodge area, try not
22 to get in any trouble if you can help it because
23 I may not be able to respond right away. Just
24 go ahead and patrol."
25 The P.D. was short. I thought if
1182
1 he stayed close, he could maybe help the P.D.,
2 and they would benefit.
3 With him being a new guy, he
4 wouldn't have to sit there bored, and me being
5 the old guy, I didn't mind.
6 Q. During the night, did anyone come to --
7 any other law enforcement officer come to the
8 house?
9 A. Yes. Early in the morning, maybe
10 three-ish, something like that, Nick Ruggles
11 came up to check on me, see if I needed a break,
12 how I was doing, and we were just visiting for a
13 while.
14 Q. All right.
15 A. And then Deputy Walter got into a
16 chase, and Officer Ruggles said he would sit on
17 the house while I broke away and went his
18 direction.
19 Q. Let me show you what I have marked
20 something -- 30, which we would offer at this
21 time.
22 MS. VALENTINE: Any objection
23 to 30?
24 MS. CONLIN: She doesn't have it
25 yet. Sorry.
1183
1 This is what we got on subpoena
2 from the police department about Deputy -- or
3 I'm sorry -- about Officer Ruggles, and while I
4 can't understand it, I think that Sergeant Ruby
5 has studied it.
6 Q. I know you yourself are not very
7 familiar with these documents; right.
8 A. Correct. I'm not familiar with these.
9 Q. And we have looked at
10 Sergeant Walter's -- Oh, we haven't looked at
11 it. Let's look at it now.
12 539 is Deputy Walter's activity
13 log for 9-8-06, which would also include your
14 night shift of 9 -- or of September 9th;
15 correct?
16 A. Yes.
17 Q. And you will see an entry at about 5:40
18 that refers to the chase; correct?
19 A. I -- I'm sorry, Roxanne. Where am I
20 supposed to be looking at, something --
21 Q. Look at 539 first, Curt.
22 MS. CONLIN: Maybe I don't --
23 MS. VALENTINE: I'm sorry,
24 Counsel, when you're referring to "539," are you
25 referring to Exhibit 539?
1184
1 MS. CONLIN: I am.
2 Did you just hand them that?
3 CRYSTAL WHITNEY: I gave them 30.
4 MS. CONLIN: Okay. 539 I think
5 is already admitted.
6 MS. VALENTINE: It is admitted.
7 MS. CONLIN: Okay. Good, good,
8 good.
9 So Exhibit 539, which is being
10 handed to you --
11 A. Thank you.
12 Q. -- 5:40 in the morning he talks about
13 the chase, and we're going to talk about that in
14 a minute.
15 I first want to ask you to look
16 at, if you can, Exhibit 30, and if you can point
17 us on this document to about when you think that
18 Ruggles came to the house.
19 A. He came to the house probably
20 around 3:00 because we visited for about a half
21 hour before the chase took place.
22 Q. All right.
23 A. And so it appears to me as I try to
24 read this that he started to sit on the house at
25 about 3:35, somewhere around there.
1185
1 To help everybody out, I'm
2 looking at Deputy Walter's sheet here. He
3 doesn't log in the time that the chase starts,
4 but he has logged in when he concluded
5 everything.
6 Q. Okay.
7 A. And that might cause some confusion for
8 everyone.
9 Q. Okay.
10 A. But we know it was between 2:50
11 and 5:40, so it was around 3:30.
12 Q. How do we -- Oh, oh, that's from his
13 log.
14 A. Right.
15 Q. Okay.
16 And then 30 tells us that
17 Ruggles -- Well, what does it tell us?
18 A. It looks like he may have left the
19 scene. Maybe he -- You know, it looks like he
20 was there until about maybe 4:40, 5:00,
21 somewhere thereabouts, and I don't recall if
22 I -- if I went back and relieved him or not, but
23 I may have.
24 Q. Okay. Let's talk about that chase.
25 You're at the house, Ruggles
1186
1 comes by. While he's there, what happens?
2 A. Tony radios he's got a car running from
3 him out on a gravel road area, and I said to
4 Officer Ruggles, "Would you sit on the house and
5 I'll go his direction?"
6 And he said he would, and I
7 started going that direction, but the chase
8 didn't last long. Maybe -- maybe 30 seconds.
9 It was short, and he -- and Deputy Walter had
10 radioed that they had bailed out of the car and
11 ran into the woods.
12 And I told him I was coming, and
13 he asked if I would -- if I would stop at the
14 law enforcement center and get him some night
15 vision goggles, and I said I would, and that's
16 what I did. I went to the law enforcement
17 center, but I'm trying to step it up because
18 he's out there alone, he's got guys in the
19 woods.
20 I grabbed the goggles, and I head
21 out in his direction, and he's on 220th, I
22 believe, is the road, and it's on the correction
23 line of the county, and I got confused on the
24 addresses because they are -- They don't line
25 up, and it took me a little longer than I wanted
1187
1 to to get to him, but I did get to him with the
2 goggles.
3 Q. Okay.
4 And is this incident where you
5 couldn't find him out there the reason why you
6 created the locator document that is in the
7 record as Plaintiff's Exhibit 4?
8 A. Yes.
9 Q. Okay.
10 And so you -- I know you're quite
11 concerned about Deputy Walter being out there on
12 his own, and you're desperately trying to reach
13 him. Is that correct?
14 A. And I'm a little mad at myself too
15 because I can't get to him as fast as I wanted
16 to. I get frustrated because I'm getting older.
17 Q. I did forget to ask you this: At the
18 house, at the beginning of them asking you to
19 sit on the house and that sort of thing, did
20 Deputy Halligan say anything to you that you
21 thought was uncalled for?
22 A. Yes, he did.
23 I told the guys, "Okay. I'll
24 cover the house."
25 I excused myself. I said, "If
1188
1 you guys will excuse me, I'm going to go in the
2 back and relieve myself."
3 And he said in a quite -- what I
4 took to be a nasty fashion, and loud enough for
5 everyone to hear, "Don't go pissing on any
6 evidence back there."
7 Q. You do outrank him; right?
8 A. I do.
9 Q. All right.
10 So you get out there to the
11 scene, having been delayed by your own inability
12 to find the place, and what happens on the
13 scene? And by that, I mean out on 220.
14 A. I finally get to him, and I give him
15 the goggles, and he's looking around.
16 And he asked me if I would assist
17 him with the paperwork while he did other
18 things, and so I did what was called a vehicle
19 tow inventory sheet while we were hooking up the
20 vehicle for a tow truck.
21 And then he was kind of looking
22 around and looking for evidence and whatnot, and
23 working with the goggles a little bit.
24 Q. And was a tow truck on the scene when
25 you got there?
1189
1 A. It was, yeah.
2 Q. And you're accused of having walked
3 away from the scene. Do you recall that
4 testimony?
5 A. I do.
6 Q. What really happened?
7 A. Well, we got it towed. The tow truck
8 was getting it loaded up, or had it loaded up,
9 somewhere thereabouts, and I asked Tony if we
10 needed to do anything else, you know, if he
11 wanted me to do anything else.
12 And he said no. It looked like
13 he had things wrapped up, but he did say he was
14 going to walk around and check a few buildings
15 with the night vision goggles, but he didn't
16 need me. He didn't think they were around.
17 I said, "That's fine, Tony." I
18 said, "I'm going to work my way back to Fort
19 Dodge."
20 And I think I was going to go
21 back to sit on the house, but I told him, I
22 said, "I'll kind of go slow so I don't get too
23 far in case you do find something around the
24 buildings."
25 And so I poked.
1190
1 Q. "Poked," you mean --
2 A. Poked, yeah.
3 Q. All right.
4 A. I slowly drove down the gravel road,
5 and I got maybe a half mile away, maybe less,
6 and Tony said something about, you know, "I need
7 you back here," or something, and indicated he
8 saw somebody or something, so I just turned
9 around and came back.
10 But by this time, he had been in
11 the woods -- I didn't know he went into the
12 woods -- and had found this guy hiding, and had
13 come out with him handcuffed, out of the woods.
14 And so I helped him search the
15 guy, and everything worked out, and we did find
16 that he had a knife on him, and Tony said,
17 "Maybe I should have waited for you."
18 And I said, yeah, you know, but,
19 you know, it happens. They're young, and they
20 kind of do things like they do.
21 Q. All right.
22 In connection with this matter,
23 did you ever receive any criticism -- Well, let
24 me start again.
25 When you -- When this is all
1191
1 over, do you speak to a superior officer and
2 make a complaint actually to Sheriff Mickelson,
3 and make a complaint on or about September 9th
4 or 10th against Chief Deputy O'Brien?
5 A. I did.
6 Q. And why was that?
7 A. Well, I had learned just talking with a
8 reserve deputy that this reserve deputy
9 hadn't -- or had been called, but told not to
10 bother to come in and sit on the house. As it
11 was, I wasn't asking him about it. It just came
12 up. He said something like, "Did you ever get
13 somebody to sit on the house?" or "Did you have
14 to sit on the house?"
15 And I said, "Yeah, because you
16 guys weren't available."
17 And he said, "I was available and
18 I was going to come, but I was told not to
19 bother because you was going to sit on it."
20 Q. All right.
21 A. And then I waged a complaint from there
22 that I felt that Chief O'Brien had lied to me
23 about the situation and left us short as a
24 result.
25 Q. In his testimony, Chief Deputy O'Brien
1192
1 told us that it is always the policy to have two
2 deputies per shift because it can be a dangerous
3 situation, and he talked about committals and
4 other things, and that was exactly the concern
5 you expressed when you were ordered to sit on --
6 or when you were -- I guess you were ordered to
7 sit on the house, and you did so.
8 The concern about the safety of
9 both the sole officer and the public was what
10 motivated you to review other alternatives;
11 correct?
12 A. Yes.
13 Q. Did anything happen as a result of your
14 complaint to Sheriff Mickelson? Did he
15 investigate it, to your knowledge?
16 A. To my knowledge, no.
17 Q. Did you speak with him again about it?
18 A. No. I told him, and that was it.
19 Q. All right.
20 Defendant's Exhibit K is the
21 Halligan report done on September 13th and
22 solicited by Chief Deputy O'Brien. One of the
23 things the report -- First of all, you didn't
24 know about this, did you?
25 A. I'm sorry?
1193
1 Q. You did not know that
2 Chief Deputy O'Brien had solicited a report from
3 Deputy Halligan about the September 8th and 9th
4 incident?
5 A. No, I didn't.
6 Q. In this report that is Exhibit K, he
7 says, "On numerous occasions he has told this
8 officer that he doesn't know how he is going to
9 get thru the day because he is so stressed out."
10 What do you recall about making
11 any such comment?
12 A. I have no recall on that.
13 Q. All right.
14 He also says, Curt, that
15 Sergeant Ruby's -- He says he is writing this
16 report "because I feel that Sgt. Ruby's actions
17 that I have witnessed are endangering the safety
18 of other officers that he is working with."
19 Did anybody ever tell you that
20 there was a suggestion that your conduct was
21 endangering your colleagues?
22 A. No.
23 Q. To your knowledge, have you ever, ever
24 done anything, at least intentionally, that
25 would put another officer in danger in any way?
1194
1 A. No, not intentionally, not ever.
2 Q. All right.
3 He also says, "I feel that he
4 would not back up another officer" -- I'm sorry.
5 "I feel that he would not back another officer
6 up when needed."
7 Is it correct that one of the
8 most important duties of one officer to another
9 is to back that officer up?
10 A. Oh, yeah.
11 Q. Have you ever in your entire career as
12 a law enforcement officer ever, ever failed to
13 back up another officer?
14 A. No.
15 Q. Has anybody ever suggested to you that
16 you had failed to back up another officer?
17 A. No.
18 Q. When you saw this document, were you
19 enraged?
20 Let me say --
21 A. No.
22 Q. -- were you concerned?
23 A. I'm not sure how to articulate what I
24 felt when I read it. I just feel that Halligan
25 is probably talking about himself personally,
1195
1 and feels that maybe I wouldn't back him up, but
2 that would be incorrect. I would back him up.
3 Q. All right.
4 He goes on to say that your
5 mental state toward performing the job is to
6 the point and feel -- this is Deputy Halligan
7 feeling --
8 A. Right.
9 Q. -- that you -- "that his mental state
10 towards performing the job is to the point that
11 he would rather not do the job."
12 True or false?
13 A. That's false.
14 Q. And he goes on to say, "This not only
15 affects the officers that he works with but also
16 affects the public who he is to protect."
17 Again, have you ever, ever done
18 anything in your 28 years as a law enforcement
19 officer that would endanger the public?
20 A. Nothing intentional.
21 MS. CONLIN: All right.
22 Commissioners, I have now located
23 Sergeant Ruby's activity log for this evening,
24 and there was -- this was missing, not
25 intentionally at all, but I didn't have a chance
1196
1 to look at this till last night.
2 I would like to show it to him,
3 and then we'll introduce it as an exhibit when
4 we get some copies. I'll just go with the
5 original at this point.
6 Okay. Here is your activity log,
7 Curt, and it says --
8 MS. PENICK: Can we put that on
9 the Elmo maybe?
10 MS. CONLIN: Oh, sure. What a
11 good idea.
12 Q. Okay.
13 Now, you see 15, "Begin watch.
14 Relieved by Fort Dodge P.D."
15 You think that's a reference to
16 Ruggles?
17 A. Yes.
18 Q. Then it looks like the incident begins
19 about 3:45. What is down at 4:30, "SO,"
20 sheriff's office?
21 A. Yes.
22 Q. And I don't know. 5:45? I'm going to
23 see if I can get it up a little bit. Well, I
24 guess that -- Can you see that?
25 A. Yes.
1197
1 Q. All right.
2 "5:45, Coleman visit" with -- Why
3 don't you read that for us?
4 A. Yeah. "Coleman district" is what I
5 meant to put. That's where the house was with
6 the search warrant, was Coleman district.
7 Q. And what does this mean?
8 A. Can I see the rest?
9 Q. Yeah.
10 A. "With P.D. on earlier site on
11 18th Avenue South."
12 I think what that means is I just
13 stopped to make sure, you know, whether or not
14 they needed me there, or if they were going to
15 sit on it, or something along that line, that I
16 was just checking in with them regarding that
17 site.
18 Q. Okay. I'll keep it out.
19 Were you ever aware that
20 Officers Lizer and Thode had complained about
21 your conduct?
22 A. No.
23 Q. Okay.
24 So the first thing, as far as you
25 know that happens after this search warrant and
1198
1 the chase, is your complaint to Mickelson;
2 right?
3 A. Yes.
4 Q. September 18th, 2006, is the 11th of
5 the charges --
6 MS. VALENTINE: And, Counsel,
7 before we go to 11, could we take a 5-minute
8 break?
9 MS. CONLIN: Sure, sure, sure.
10 MS. VALENTINE: And I would also
11 remind you of the time. We are at a quarter to
12 ten.
13 MS. CONLIN: Okay. My watch
14 says 20 till.
15 MS. VALENTINE: We can go with 20
16 till. I just want to make sure we're all --
17 Okay. 5 minutes.
18 MS. CONLIN: Okay.
19 (A recess was taken from 9:40 a.m.
20 until 9:55 a.m.)
21 Q. Okay, Curt.
22 You and I have discussed the
23 charges that have been made against you for
24 hours; correct?
25 A. Yes.
1199
1 Q. And during those discussions, you're
2 aware that I took copious notes?
3 A. Yes.
4 Q. And what I'm going to do to speed along
5 the process --
6 MR. O'CONNOR: Can I hold you up
7 for a second? I didn't hear the very beginning
8 of the question.
9 (Requested portion of the record
10 was read.)
11 Q. -- is to do what is known in the law of
12 evidence as leading the witness, and as I do
13 this, I want you to listen very carefully and
14 make sure that my recording of our conversations
15 is accurate, okay?
16 So on September 18th, the 11th
17 charge against you has to do with your being
18 called by Chief Deputy O'Brien about your
19 behavior on September 8th, and when he called
20 you, it says that you were angry. Is that
21 right?
22 A. Yes.
23 Q. And did you hang up on him?
24 A. I did.
25 Q. And what happened after you hung up on
1200
1 him?
2 A. I thought better of it and called him
3 right back.
4 Q. And did you set up a meeting at that
5 time?
6 A. Yes.
7 Q. And did you come and attend that
8 meeting?
9 A. I did.
10 Q. Moving to the 12th charge, which is the
11 conversation that you had at the time that you
12 were required to go for the FFDE.
13 In the material sent to Eva
14 Christiansen, there is an allegation by
15 Chief Deputy O'Brien that, "Curt, after
16 stressful encounters, has made statements such
17 as: I have had it with this, I just can't take
18 it any more, or I just need time to cool off
19 awhile."
20 Aside from the Thompson incident,
21 do you know of making that statement?
22 A. No.
23 Q. Walter is the person who writes
24 page 506 making various allegations against you.
25 Okay.
1201
1 He says that it's "apparent to me
2 that his attitude for this job is entirely
3 negative."
4 Did you have any negative
5 feelings about your job?
6 A. No.
7 Q. He is the one who talks about spending
8 more time reading and practicing his tae kwon do
9 since he is on the night shift, and you've
10 explained that statement?
11 A. Yes.
12 And the reading, I'll say
13 Sheriff Mickelson said it was okay to read in
14 the towns because he likes us to stay in the
15 towns longer, and I would park and I would read
16 very visibly in town so people could see a squad
17 car there.
18 Q. Did you continue for every single day
19 that you have ever been a law enforcement
20 officer that -- I'm sorry. Let me start again.
21 Were you always concerned every
22 day that you were a law officer about the
23 quality of the work that you were providing to
24 the citizens of Webster County?
25 A. Yes. I've tried to be a good officer
1202
1 over the years.
2 Q. Have you degraded and complained about
3 other deputies that are doing their job and
4 criticizing them for finding things that tie up
5 the deputies for a period of time?
6 A. Let me try to explain it this way: As
7 the supervisor of the shift that is usually very
8 small in a large county, one of my
9 responsibilities, I believe, is to try to keep
10 as freed up as much as possible, and I don't
11 encourage the guys to tie up on anything if they
12 can help it.
13 It's kind of a dilemma. You
14 could argue, "Well, we should be out there
15 go-getting," but then if we go get and get in
16 too deep, then we don't have coverage, so it's a
17 balancing act, and I think the young guys have
18 difficulty understanding that.
19 Q. All right.
20 Did Deputy Powell tell you that
21 he was asked by Jim O'Brien or Brian Mickelson
22 whether or not you were dangerous or violent?
23 A. That's not the way he presented it to
24 me. That's what I have learned later, but what
25 he had told me is that I was referred to as the
1203
1 enemy.
2 Q. Oh.
3 Did you say during the course of
4 the conversation that you had in connection with
5 the FFDE that you were not running for sheriff?
6 A. No, I never said I was not running for
7 sheriff. I don't know how they misunderstood
8 that, but I've always been open about this.
9 Q. All right.
10 Did you, in fact, say to
11 Sheriff Mickelson during that conversation that
12 Jim O'Brien needed the FFDE more than you did?
13 A. Something along that line. I said that
14 there's someone else in this room that should be
15 going.
16 Q. And that was -- you were indicating
17 O'Brien?
18 A. Yes.
19 Q. And did you say to these two men that
20 others shared your perception of Mickelson and
21 O'Brien?
22 A. That I don't recall.
23 Q. Did you tell them that you were not
24 afraid of them?
25 A. Don't recall that one.
1204
1 Q. All right.
2 Did you tell them along the lines
3 that you had heard at the beginning of the term
4 that they were going -- that Sheriff Mickelson
5 was going to get rid of you?
6 A. Yes, I did hear that and tell them
7 that.
8 Q. Okay.
9 Did you tell them that -- Oh, who
10 did you hear that from?
11 A. I heard it from a jailer, and if I
12 cannot say his name, I'd prefer not to.
13 Q. Did you tell them that you thought that
14 your assignment to get this FFDE was political?
15 A. I did.
16 Q. Did you tell them that you felt like
17 what started all of this was your complaint
18 against O'Brien?
19 A. Yes, I did.
20 Q. And that you felt that other deputies
21 felt that the sheriff and Chief Deputy O'Brien
22 couldn't be trusted?
23 A. Probably, but I don't have a clear
24 recall.
25 Q. Okay.
1205
1 And that complaining about -- to
2 them about anything having to do with their
3 conduct was like putting a target on?
4 A. Again, I have vague recall of something
5 like that.
6 Q. They gave you 514, which is a document
7 that Eva Christiansen sent them about the
8 process of the FFDE. Did you get a copy of
9 that?
10 A. Yes, I did.
11 Q. We've talked about the report, which is
12 mostly sealed, but we have talked about the
13 last -- or couple of paragraphs about what was
14 expected of you.
15 Did you -- In terms of these
16 events, do you recall that she told you that you
17 could change your attitude for yourself?
18 A. Yes.
19 Q. And if that didn't work, you should
20 consult a physician and see about a mild
21 antidepressant?
22 A. Yes.
23 Q. Did she tell you anything that
24 indicated to you that there was anything else
25 you were supposed to do?
1206
1 A. She strongly recommended I read a book,
2 and she gave me the title and author, and I
3 purchased that book and read a portion of it. I
4 didn't read all of it, but maybe half,
5 three-fourths, roughly.
6 Q. And is the book "The Dance of Anger" by
7 Harriet Lerner?
8 A. Yes, it is.
9 Q. And is this (indicating) the book?
10 A. Yes, it is.
11 MS. CONLIN: We have just given
12 the commission -- We'll give you this if you
13 want it, but what we have done instead is just
14 given you -- I think the first two, three, four
15 pages, and that is marked Exhibit 18, which we
16 would offer at this time.
17 MS. VALENTINE: Any objection?
18 MS. PENICK: No.
19 MS. VALENTINE: 18 is received.
20 Q. Did you take her advice?
21 A. I did. Like I said, I read the book, I
22 took into consideration what the book said, and
23 I followed the advice of the book.
24 Q. And what was generally the advice
25 given?
1207
1 A. What I took from the book is that --
2 The main theme of it was if certain ways of
3 displaying anger or handling anger were
4 ineffective or harmful, that one should consider
5 a different approach. That made sense, and I
6 worked on a different approach.
7 Q. Did you know that she had recommended
8 that you stay on the night shift?
9 A. I didn't know that she recommended it,
10 but I told her that I thought maybe being on the
11 night shift would be a good way to let things
12 cool down, and even though the night shift is
13 kind of hard on me, it was still an opportunity
14 to just kind of let things settle.
15 Q. And you were returned to duty?
16 A. I was.
17 Q. Let's look at --
18 MS. CONLIN: Let me first offer
19 Exhibit 37, which is the September 8th activity
20 report for Sergeant Ruby.
21 MS. VALENTINE: Any objection?
22 MS. PENICK: No.
23 MS. VALENTINE: 37 is received.
24 Q. Number 13, which is dated -- It says it
25 happened on August 20th, but we've established
1208
1 it did not. When do you think it happened,
2 Curt?
3 A. I'm sorry. What happened? I missed
4 that.
5 Q. We're not there anymore. We've left
6 that.
7 We're going to -- we're going to
8 the calls that were made by Jim O'Brien to you
9 sometime after October 20th that are charged in
10 number 13.
11 A. I'm with you now.
12 Q. Okay.
13 When do you think you got that
14 call, or those calls?
15 A. A time?
16 Q. What does it seem to you like in terms
17 of the timing of those calls?
18 A. And we're talking about --
19 Q. The charge is 13, and it says it's
20 October 20th, and as I understand it, you think
21 it was not October 20th, that it was sometime in
22 November or December when you finally had any
23 conversation with anybody about the
24 fitness-for-duty examination when
25 Chief Deputy O'Brien phoned you.
1209
1 A. Phoned me at home regarding --
2 Q. Exactly.
3 A. -- talking with them and Eva
4 Christiansen?
5 Q. Right.
6 A. All right. I'm with you. Sorry.
7 Q. And my question initially was, does it
8 seem to you like it was in November or December?
9 A. Yes.
10 Q. And when he called you, you didn't have
11 the report?
12 A. No.
13 Q. And you didn't -- When he first started
14 talking to you, did he ask you something about
15 the lady?
16 A. Yeah. He called me, and he said -- I
17 said, "What do you need, Jim?"
18 And he said, "I'm here to talk to
19 you about seeing the lady."
20 And I said, "Jim, I don't know
21 what you're talking about. Can you tell me what
22 lady?"
23 And he said, "The lady in
24 Des Moines."
25 And I said, "You mean the
1210
1 psychologist?"
2 And he said "Yeah."
3 And I said, "What about her?"
4 And he said -- he said something
5 about -- I don't recall that, but something
6 along the line of getting with her again or
7 visiting with her again, and I was just kind of
8 at a loss what he was getting at.
9 Q. All right.
10 Eventually, did you figure out
11 what he was getting at?
12 A. He did tell me that I was supposed to
13 go back for a follow-up, and that it -- that
14 time had passed, and we were late on that.
15 Q. All right.
16 And did you remember anything
17 about any kind of going back for a follow-up?
18 A. Well, I do now, but then I had
19 forgotten all about it. I just thought that --
20 I was never told, you know, about findings or
21 what happened.
22 I was just back to work, and
23 nothing else was said, and I just kind of forgot
24 about everything, and -- and -- but -- So I was
25 a little confused as to what he was talking
1211
1 about.
2 Q. He says that there were three calls to
3 you that day. Is that consistent with your
4 recollection?
5 A. Two or three. I think he had to do
6 some checking and call back with me.
7 Q. All right.
8 Did you say -- Do you remember
9 him saying something like, "Did you" -- is it,
10 "Shall I call Dr. Eva?"
11 A. Something along that line, yes.
12 Q. And you said "Fine"?
13 A. Yeah.
14 Q. And then he called you back and said,
15 yes, indeed, there was supposed to be a
16 follow-up meeting about this with either O'Brien
17 or Mickelson, or both?
18 A. Right.
19 Q. And that just was not anything that you
20 recalled?
21 A. That he said something about meeting
22 with him and --
23 Q. No, from Dr. Eva.
24 A. No, I didn't recall that. I did not.
25 Q. And then in one of the conversations
1212
1 you said something like you didn't really care
2 to meet?
3 A. I didn't really care to meet with them,
4 you know, if I didn't have to. I thought it
5 would probably be a little clumsy and
6 uncomfortable, so I said I'd prefer not.
7 Q. All right.
8 Were you ever ordered to come in
9 and meet with them?
10 A. No.
11 Q. You just expressed that you just
12 weren't too crazy about the idea?
13 A. Yeah.
14 Q. 14 is July 7th. It's listed as
15 July 7th, but, in fact, it is July 25th, and
16 that's the Carlson incident.
17 A. Okay.
18 Q. Oh, I'm so sorry.
19 In connection with 12, we're
20 backing up just a second.
21 A. All right.
22 Q. And in connection with that
23 incident, 13 -- I'm sorry.
24 In connection with 13, did
25 anybody ever indicate to you that you could be
1213
1 disciplined or fired for that?
2 A. No.
3 Q. Now let's talk about the quite
4 wonderful Virginia Carlson.
5 A. All right.
6 Q. What was your -- You get there. I
7 think that there's a reasonable description of
8 what happened when you got there.
9 Do you agree with your long
10 experience and teaching the law of domestic
11 violence and how officers should react that you
12 were in any way mandated by the law, 708.2A --
13 708.2 to arrest Vic Carlson that night?
14 A. I believe I remained within the
15 parameters of the law, and that I did not have
16 to arrest him, given the circumstances and the
17 information.
18 Q. Your discussion with her and your
19 narrative with respect to it is accurate?
20 A. Yes.
21 Q. And what she said yesterday is
22 accurate?
23 A. Yes.
24 Q. Tell me what you were trying to
25 accomplish in terms of respecting her wishes.
1214
1 A. The daughter, as we all know, wanted --
2 wanted her dad arrested for assaulting her mom,
3 but, of course, Virginia was hesitant.
4 When I heard that her hair was
5 pulled, there was no talk of pain or injury, and
6 as we know, Vic was in the house and not coming
7 out, which I was glad of because he can be quite
8 disruptive.
9 Q. You knew of him already?
10 A. Knew of him more than knew him, but I
11 knew him to be disruptive.
12 Q. In the circumstances, would you ever
13 have been justified in knocking down the door?
14 A. No, not in this case.
15 Q. Do you know whether or not telephone
16 contact was attempted?
17 A. Not that I recall.
18 Q. All right.
19 And was Virginia concerned about
20 the fact that Victor was on blood thinner
21 medications, and that he might try to file
22 charges against her?
23 A. Yes.
24 Q. Did you reassure her about that?
25 A. Yes, I did.
1215
1 Q. And she told you that she had put up
2 with him for decades, and she was not afraid of
3 him, and he didn't have any weapons?
4 A. Right.
5 Q. And that you urged her to go to D/SAOC,
6 and we've heard that she did that, and it
7 changed her life in every way?
8 A. Yes.
9 Q. Did you tell her that she didn't have
10 to decide right then; that you would stand by,
11 and whenever she was ready, you'd be ready?
12 A. Yes.
13 Q. And she promised you that she would
14 contact D/SAOC?
15 A. Yes. I made her promise.
16 Q. And you made a safety plan for her, and
17 you also let the dispatchers know immediately
18 about that plan and about what had happened?
19 A. Yes, I did.
20 Q. You were not a witness in the hearing;
21 correct?
22 A. No, I did not serve as a witness at the
23 hearing.
24 Q. And one of your reasons for being there
25 was to provide a sense of security for Virginia
1216
1 and make sure that he couldn't intimidate her;
2 correct?
3 A. Correct.
4 Q. And Officer Fleener charged a simple
5 misdemeanor, which is not a mandatory arrest;
6 correct?
7 A. Correct.
8 Q. And your goal was -- that night and
9 thereafter, was to empower her, make sure she
10 had the information and support she needed?
11 A. Yes.
12 Q. And the idea of that is to set the
13 victim up for success, even if things don't
14 happen just then?
15 A. Yes.
16 Q. And in your experience, sometimes the
17 victim is simply not ready, but becomes ready
18 later; right?
19 A. Yes.
20 Q. And, in fact, in these domestic
21 violence situations, you give the victims, as a
22 matter of their safety and security, your
23 personal cell number, and tell them they can
24 call you anytime?
25 A. I've done that, yes.
1217
1 Q. All right.
2 15 is August 8th. That's the
3 situation with Alicia Wardlow, and in that
4 situation you are aware that -- Well, let's talk
5 about this scene. Was it chaotic?
6 A. Oh, yes.
7 Q. And he drove up. Is she in the car?
8 A. She's in the car. He drove up, and she
9 had got out of the car there at the residence.
10 Q. And came to you --
11 A. Yes.
12 Q. -- and expressed to you, "Let me get my
13 kids out of here"?
14 A. Right.
15 Q. And that -- and you -- Again, you
16 referred her to D/SAOC, she made a promise to
17 go, and she did?
18 A. Yes.
19 Q. I guess she didn't go right away. She
20 called them the next day?
21 A. Yeah. I just learned --
22 Q. Okay.
23 A. -- a day or two ago that she went,
24 but --
25 Q. All right.
1218
1 And, again, the charge by Fleener
2 was simple misdemeanor?
3 A. It was.
4 Q. Nonmandatory.
5 She has told us by way of
6 affidavit that deputies had been at their house
7 sometimes twice a week, and that nobody -- and
8 after she had been assaulted by him, and no
9 other deputy had ever arrested the guy either;
10 correct?
11 A. Correct.
12 Q. You wrote the document that is in
13 Defendant's Exhibit S, page 349, and your
14 purpose in doing that was to make sure that if
15 he came around trying to file a charge against
16 her, that other deputies would know what the
17 situation was?
18 A. Right. I didn't want him to manipulate
19 the situation to get the upper hand.
20 Q. And one of the things that we heard for
21 the first time a couple of days ago -- I guess
22 only yesterday -- is that you let him drive away
23 from the scene. Did that happen?
24 A. He drove up. She got out, and he tore
25 off, so I talked to her.
1219
1 And then he came back, and I
2 thought he might have been on drugs. I knew he
3 was excited because they had been fighting, but
4 I suspected that he may have been on drugs
5 because it's late, and everyone is running
6 around and acting strangely, and I just told
7 him, "Look, you know, I think you're messed up
8 in some way. You're not going to get back in
9 that car and drive, so just forget it."
10 Q. Okay.
11 To your knowledge, did he ever
12 get back in the car after your conversation with
13 him and drive away?
14 A. No, I wouldn't let him.
15 Q. Pardon me?
16 A. No, I wouldn't let him.
17 Q. October 4th, that's the Tammie Chase
18 incident. You are criticized because you didn't
19 go searching for the victim. In fact, who was
20 it? How did you learn that the victim was in
21 the hospital?
22 A. My recall on this one is that Delbert
23 had found out and had told me.
24 Q. All right.
25 A. And then I relayed that to the other
1220
1 deputies.
2 Q. All right.
3 Did you follow the requirements
4 of Chapter 708A(2) for all three of these
5 domestic violences that are a subject of the
6 charges against you?
7 A. Yes.
8 Q. Pretty sure of that?
9 A. Yes.
10 Q. And, in fact, this is what you teach
11 and what you were taught?
12 A. Yes.
13 Q. There was a time when the officers were
14 directed -- Well, let me stop.
15 Let's do 17. Okay. That's --
16 You're charged with not getting permission to
17 repair the spotlight on your patrol vehicle,
18 and, in fact, did you write that on the top of
19 your activity sheet?
20 A. Yes.
21 Q. And, again -- Oh, I have to go back.
22 These three charges, nobody ever
23 talked with you about them, nobody ever
24 indicated to you in any way that these were --
25 that you had handled these cases wrong?
1221
1 A. No, no one spoke with me.
2 Q. Until December 13th?
3 A. No.
4 Q. And is that also true with respect to
5 getting the spotlight repaired?
6 A. Yes, it is.
7 Q. And in connection with that, did you do
8 what you thought was required by the general
9 orders?
10 A. I don't think that it's in the general
11 order --
12 Q. Okay.
13 A. -- but my understanding is that common
14 practice with the sheriff's office is that if
15 there's a small repair to be made, like a light
16 bulb goes out in your light bar or something
17 like that, you can make a notation in your log,
18 and when you get time, you can go ahead and fix
19 it, as long as it's not a major repair. That
20 was my understanding.
21 Q. And is that the way you've done it
22 before?
23 A. I'm sure I have, you know, in the past,
24 and others have too.
25 Q. And you pretty much need your
1222
1 spotlight?
2 A. Yes, I do.
3 Q. All right.
4 The next one is 18, and it has to
5 do with a November 13th suicide call.
6 A. Yes.
7 Q. Why did you drive away?
8 A. All right.
9 Deputy Richardson, as mentioned,
10 has had a bad experience, and when we got this
11 call, he spoke with me on the phone, and he
12 said, "Look, I'm really uncomfortable with this.
13 Do you care, you know, if I call some more
14 guys?"
15 And I said, "If that makes you
16 comfortable, that's fine. I support that."
17 And he had contacted the
18 sheriff's office, and as it was, as we know,
19 Chief Deputy and Sergeant Fleener came to assist
20 us.
21 So I met with Richardson right
22 there at the entrance of the trailer park, and
23 we saw them coming, and I told Mike, I said, "Go
24 ahead and just visit with them real quick, and
25 what I'm going to do is I'm going to go find the
1223
1 trailer and let you know when I find it,"
2 because the numbers aren't really in order a lot
3 of times in these things.
4 And so as they came and we were
5 parked together, I drove away so that they could
6 pull up and talk to Mike.
7 Now, I wasn't aware until
8 testimony that Mike had drove off.
9 Q. Let me stop you for just a minute.
10 When you say you're talking to
11 "Mike," you're talking about Deputy Richardson?
12 A. Deputy Richardson. I'm sorry.
13 Q. Are you physically together with him,
14 or are you talking on your cell phone or your
15 radio?
16 A. Our cars are close together, I guess is
17 what I'm trying to say, and we're talking
18 window-to-window.
19 Q. All right.
20 So you go to locate the trailer?
21 A. I go to the location, and I radio that,
22 "I'm here. Just look for my car, and you'll see
23 where it's at."
24 But I wasn't parked in the
25 position I really wanted to be in, but I didn't
1224
1 want to move so they'd be confused, and so as
2 soon as they came around the corner and saw
3 where I was parked and I knew they had the
4 trailer, I drove up, did a U-turn, drove around
5 and positioned myself in a better tactical
6 position.
7 Now, Deputy Richardson and I work
8 well together, we communicate well together, and
9 I knew that we would communicate while I could
10 cover this end of the trailer and watch the
11 windows while they covered that, and that's what
12 happened.
13 He had communicated with me by
14 cell phone, and possibly -- I don't recall, but
15 the chief deputy may have too, and we just kind
16 of communicated that way while we kept coverage
17 on the house -- or the trailer.
18 Q. And you knew there was a girl there
19 armed, and when you went around to the other
20 side, you gathered information from the
21 landlord?
22 A. The landlord came up to me, and I asked
23 him if he had a key to the place in case we
24 needed it.
25 He said he did not, but had the
1225
1 number of where to contact her husband if we
2 needed the key, and I relayed that.
3 Q. All right.
4 And you relayed that to the other
5 three officers on the scene?
6 A. Yes, I did.
7 Q. And you also -- So Chief Deputy O'Brien
8 had to know that what you were doing was
9 gathering information for the benefit of the
10 suicidal person?
11 A. I would have assumed so.
12 Q. And you were focused on safety; her
13 safety, your safety, their safety?
14 A. Sure.
15 Q. You and Richardson took her to the
16 hospital?
17 A. We did.
18 MS. CONLIN: Have I offered 535?
19 MS. VALENTINE: Yes. It's
20 received.
21 Q. Let's move to 19 -- oh, I'm sorry.
22 Let's first talk about in the middle here -- No.
23 Charge 19 has to do with a second
24 meeting on an FFDE, or a follow-up; right?
25 A. Okay.
1226
1 Q. And they informed you you were going
2 down for another psychological evaluation. Let
3 me see what the notes I have of that say.
4 You were, in fact, not very happy
5 about this?
6 A. No, I was not.
7 Q. And you felt it was based on lies?
8 A. I didn't know what it was based on.
9 They said complaints, but they were vague. They
10 wouldn't give me any details.
11 Q. You were called to this meeting when
12 you were having lunch with Lieutenant Stubbs?
13 A. I was.
14 Q. And Mickelson said to you, "There have
15 been ongoing complaints about your attitude and
16 behavior."
17 And you asked, "Who and what kind
18 of complaints?" and he didn't tell you?
19 A. That's correct.
20 Q. And he said that he didn't like your
21 attitude toward him and the fact that he felt
22 like you were avoiding him and that you didn't
23 talk to him?
24 A. Yes.
25 Q. And he said -- Oh, well. I don't have
1227
1 a note on this.
2 What did you say back when he
3 said that? Do you remember?
4 A. I don't recall on that.
5 Q. Okay, okay.
6 And he goes on to say, "I don't
7 know why you're mad at me. You sent me a letter
8 after the election congratulating me, and then
9 things somehow went wrong"?
10 A. Right.
11 Q. Is this when there was talk of a lie
12 detector test, or do you remember?
13 A. That sounds right.
14 Q. And I think I was mistaken yesterday.
15 This is where you were -- an accusation was made
16 against you that you had said -- please excuse
17 me -- "that motherfucking Mickelson," or
18 something like that?
19 A. Right.
20 Q. And he told you that someone had said
21 that, and you asked who, and he wouldn't tell
22 you?
23 A. Right.
24 Q. And then you said, "That's absolutely
25 false. I'll take a lie detector test as long as
1228
1 the reporting person takes a lie detector test"?
2 A. Right, because I know of no incident
3 where I've done that.
4 Q. And you said to him something like, "I
5 have had no conflict with anybody, not
6 coworkers, not citizens"?
7 A. Correct.
8 Q. And he continued to press on why you
9 were mad at him?
10 A. Yes.
11 Q. And you said to him, "I'm pretty sure
12 it's in my best interests not to say too much"?
13 A. Correct.
14 Q. And Mickelson said, "You have to tell
15 me," or that in substance?
16 A. Right. "Something that you're supposed
17 to communicate with me," or "I expect this of
18 you."
19 Q. And he said also that the meeting --
20 that this was part of the follow-up from last
21 year's FFDE?
22 A. Something along that line.
23 Q. And you said it was based on false
24 allegations, the original FFDE. Do you remember
25 that?
1229
1 A. It sounds right.
2 Q. And was done to discredit you?
3 A. I did say that.
4 Q. And that's when he told you, "You're
5 going again," and you said you'd be talking to
6 your lawyer?
7 A. Yes.
8 Q. But you couldn't reach your lawyer?
9 A. I could not.
10 Q. All right.
11 You also said, "This is a
12 political ploy to discredit me for the
13 election," or that in substance?
14 A. Yes.
15 Q. And that you were worried that he was
16 worried about losing?
17 A. Yes.
18 Q. He said to you, "This is a really hard
19 job, and you won't be able to do it"?
20 A. Right.
21 Q. And that's when you said to him, "It
22 would be a good idea" -- You said to him, "Yes,
23 I can."
24 A. Right.
25 Q. "And it might be a good idea for you to
1230
1 step down now and let me take over"?
2 A. He said something like "Maybe I should
3 just step down and let you have it," and I said,
4 "That would be a good idea. Why don't you?"
5 Q. And he said, in substance, "I'll do
6 anything to make sure you never get into
7 office"?
8 A. Yes, something along that line. That's
9 very close to my recall there.
10 Q. And your best recollection is that he
11 was glaring at you, and that he was shouting?
12 A. Well, we were both glaring at each
13 other. He was -- Yeah.
14 Q. Or he had a loud voice?
15 A. We both did.
16 Q. And then O'Brien reads from the
17 psychological report that you didn't have?
18 A. Right.
19 Q. He, O'Brien, said that they did not set
20 up this follow-up in the time that they were
21 supposed to, and that this was just a delayed
22 follow-up?
23 A. Right.
24 Q. You said okay, and then he said he
25 needed to pull the video from your car, and you
1231
1 said okay?
2 A. Yes.
3 And I would like to add that when
4 he told me that it was a follow-up, I was okay
5 with that.
6 Q. All right.
7 A. I didn't have a problem with that, and,
8 yes, we went to get the video.
9 Q. And what you understood was that there
10 wasn't going to be any psychological tests?
11 A. Right. Once I came to that
12 understanding, I'm like, "I'm fine with this.
13 Not a problem."
14 Q. And then the two of you went out to
15 your vehicle and got the tape; right?
16 A. Yes.
17 Q. And you said to him in connection with
18 that tape that you had had some trouble with
19 your videotaping equipment?
20 A. Yes. I told him, I said, "When you
21 pull the tape, if you review it, you may have
22 some blank-outs," I said, "because I've been
23 having some occasional problems with it where
24 the screen would blue out."
25 And I did double-check, and it
1232
1 doesn't record when it does that. If I hit a
2 bump or something, it will go in and out.
3 Q. Deputy Robertson said he thought it was
4 associated in some way with coldness?
5 A. I wouldn't argue that either. It could
6 be.
7 Q. Did you ever seek to have it repaired?
8 A. No. It was -- it was kind of off and
9 on. It fluctuated as to how well it worked, and
10 I thought maybe it was just the tape itself, and
11 I thought I'd try another tape sometime and see
12 if that fixed it, and if not, let him know.
13 Q. And you gave him that tape and asked
14 him if you could use the squad car to drive to
15 Des Moines?
16 A. Yes.
17 Q. Last time you used your private car?
18 A. I did.
19 Q. And he thought you had used the squad
20 car before?
21 A. Correct.
22 Q. Didn't take your gun, didn't take your
23 badge, or anything like that?
24 A. No. He didn't take anything away from
25 me.
1233
1 Q. The next one is number 21, and it
2 accuses you of -- that comment on the top of the
3 activity log for November 27th.
4 Returning to 19 and 20, did
5 anybody ever tell you that your conduct was in
6 question, and that you could be disciplined or
7 fired for it?
8 A. No.
9 Q. Okay.
10 Now, the 21st is -- 21st
11 allegation has to do with this writing something
12 on the top of your activity log. What was that
13 about?
14 A. For some reason that day, I was
15 handling a lot of calls just by cell phone. A
16 lot of them, four, five, six, somewhere around
17 there, and I was handling them pretty rapidly
18 and I wasn't getting them logged, and so what I
19 thought I would do is say, "Look, I've used a
20 cell phone a lot to handle things here to" --
21 and as you know, I put the "enhanced
22 performance."
23 The reason I did that was in case
24 anything I did with the cell phone came into
25 question, that it wasn't on the log, I wasn't
1234
1 called into question that I was purposely not
2 logging something. I didn't think it would, but
3 you never know.
4 And so I just put that's the
5 reason, and didn't think anything more of it,
6 and here we are.
7 Q. Okay.
8 And was it in any way meant to be
9 sarcastic?
10 A. No.
11 Q. It was just information?
12 A. Right.
13 Q. And the information was in case
14 something wasn't recorded properly?
15 A. Right.
16 Q. Okay.
17 You get to -- and this is out of
18 order, but you go on the 19th -- no, no, no --
19 17th for the -- what you understood to be a
20 follow-up?
21 A. Correct.
22 Q. You asked her, Eva, if there would be
23 any requirement that you take paper-and-pencil
24 tests, and she said yes?
25 A. Right.
1235
1 Q. You had to take another MMPI?
2 A. That's what she said I was going to
3 have to do.
4 Q. That was a surprise to you?
5 A. It was, and a disappointment.
6 Q. Did she also say to you that she was
7 not exactly sure why you were there?
8 A. Correct.
9 Q. Meaning that she did not know the
10 underlying reasons?
11 A. Right.
12 Q. And Rhonda was with you?
13 A. She was.
14 Q. And you asked her for the opportunity
15 to visit with your attorney, given what you
16 discovered about what the day was supposed to be
17 like?
18 A. Right.
19 Q. And she was in full support of that?
20 A. Yes, she was.
21 Q. She asked you if you had ever seen the
22 report?
23 A. Correct.
24 Q. And was surprised you had not?
25 A. I think she was more surprised when I
1236
1 told her that the chief deputy was reading
2 excerpts from it, and appeared to be picking and
3 choosing what he was reading to me the day
4 before, and that's when the topic of have you
5 ever seen it come up, and I said no.
6 Q. She gave it to you; right?
7 A. She did that day. That's the first I
8 saw of it.
9 Q. And she said something like, you know,
10 "I just don't want to be involved myself in
11 anything that's unethical"?
12 A. Yes, she said something along that
13 line.
14 Q. She typed up, while you were there,
15 Exhibit 8, which is a November 16th letter to
16 the sheriff?
17 A. Yes.
18 Q. And you set a tentative appointment for
19 December 10th?
20 A. That sounds right.
21 Q. And Monty was out of town?
22 A. He was. He was on vacation out of
23 town.
24 Q. And that's why you set it
25 December 10th, so you'd have a chance to visit
1237
1 with him?
2 A. Right. We knew when he was coming
3 back, so we set it then.
4 Q. The 22nd allegation has to do, at least
5 in part, with your isolating yourself from other
6 officers, and there's a description of the
7 conduct in Exhibit D, and it has to do with the
8 hazardous material training that was held on the
9 1st, the 3rd, the 8th, and the 10th.
10 Were you present at all four of
11 those sessions?
12 A. Yes, I was.
13 Q. And was Chief Deputy O'Brien there?
14 A. I think most of us were there with the
15 exception of one or two guys.
16 Q. All right.
17 And did you, in fact, sit at the
18 back of the room?
19 A. I did.
20 Q. Why?
21 A. Well --
22 Q. I know you did. This will be a little
23 embarrassing.
24 A. Okay. I was broke down, and --
25 Q. Okay. We're -- You had a little rash
1238
1 on your tushy?
2 A. That's a good way to put it.
3 And I thought if I sat in the
4 back, if I got too uncomfortable, I could get up
5 and kind of stretch and rest things, and to stay
6 comfortable and not be disruptive as I would
7 have been had I been up front.
8 Q. Were you pretty uncomfortable?
9 A. Yes, I was.
10 Q. Is it possible that you did, in fact,
11 moan?
12 A. I could have moaned.
13 Q. All right, okay.
14 And when you -- according to
15 Exhibit D, on the 3rd of October, the odd table
16 in the back center of the room had been moved
17 against the wall, and you sat alone at that
18 table.
19 Was that for -- always for the
20 same reason?
21 A. Yeah, and sometimes I would sit on the
22 table. I could distribute my weight a little
23 better.
24 Q. All right.
25 A. And it just was more comfortable.
1239
1 Q. Nobody ever asked you about this?
2 A. Right.
3 Q. And if they had asked you, though you
4 wouldn't have liked to have told them, you would
5 have?
6 A. I would have if the issue was pressed,
7 like today.
8 Q. Okay. Sorry.
9 A. That's okay.
10 Q. December 13th time frame. Let's see.
11 You were sent to your second FFDE
12 with Eva on November 15th. You went,
13 rescheduled for the 10th.
14 Then on the 5th you visit with
15 Monty, and on the 5th he writes you a letter and
16 asks that the scheduled meeting be postponed
17 because there just -- He felt that there was no
18 reason for you to have to undergo this?
19 A. Right.
20 Q. You got a call in the middle of your
21 shift, about 10:00, to come in, and you were
22 told that the reason is you're going to see
23 Fleener; right?
24 A. Yeah. The dispatcher said to me to
25 come to the LEC and see Sergeant Fleener.
1240
1 Q. And you did?
2 A. Well, I went to the LEC, and I was
3 looking for Sergeant Fleener, and I did not find
4 him.
5 Q. What happened next?
6 A. Jim O'Brien and Brian Mickelson were in
7 the sheriff's office, Sheriff Brian Mickelson's
8 office, and asked me to come in, and I did.
9 Q. We've got the videotape of that, and so
10 we don't need to go into it. It didn't last
11 very long?
12 A. Correct.
13 Q. You didn't raise your voice?
14 A. I don't believe so.
15 Q. I want to talk with you about a few
16 incidents which gave a negative impression of
17 you, one of which is that you were told that
18 before you could schedule your vacation, you had
19 to check with the deputies who worked under you?
20 A. Yes. That had happened at one time.
21 Q. All right.
22 And then we can talk a little bit
23 about Deputy Halligan. Do you remember an
24 occasion where you were called into the command
25 center, and Deputy Halligan was there with his
1241
1 boots on the counter?
2 A. Yes.
3 Q. And he told you that he would not be
4 available for the rest of a shift because he was
5 doing a search warrant with Kruse and Chris
6 O'Brien?
7 A. Yes.
8 Q. You complained to O'Brien and Mickelson
9 that him doing stuff like that -- this is in
10 2004 -- sends a negative message and really
11 doesn't follow the chain of command?
12 A. Yes.
13 Q. Another incident occurred when he was
14 out in Dolliver Park searching for a potential
15 suicide?
16 A. Yes.
17 Q. And he didn't even notify you about
18 that?
19 A. No, I wasn't notified.
20 Q. Is that proper?
21 A. No.
22 Q. Did he, in fact, ask the dispatcher to
23 contact him on his cell phone so there wouldn't
24 be radio traffic about this?
25 A. That was my understanding. They were
1242
1 to communicate with cell phone. Telephone, cell
2 phone.
3 Q. Another time he went out to Callender
4 on something that was not known to you, and you
5 had to handle the shift alone?
6 A. That one I don't recall with that
7 information. It may be something else along
8 that line.
9 Q. And then he told us about this search
10 warrant where he happened not to agree with you.
11 You were the superior officer on the scene?
12 A. Oh, yes.
13 Q. Okay.
14 And there was -- He went ahead
15 and did what he wanted to do?
16 A. Yeah. I told him I would like to get a
17 rope and just tie it on the knob. This is
18 something that I learned in my SWAT training.
19 Apparently, he didn't have the
20 same training, but if you worry about children,
21 you know, maybe answering the door, or anyone
22 answering the door, and kicking that door in,
23 you know, you can hit them, so you can control
24 the door. It's like a slipknot you just put on
25 the handle.
1243
1 And he thought that there were
2 dogs there, and mean dogs, and I thought, well,
3 it would be a good idea to control the door for
4 the dogs too.
5 And I said, "Let me go get a
6 rope. I'll be right back, and we'll just
7 slipknot it."
8 I think I took two or three
9 steps, and I turned around. The door was kicked
10 open and he was hollering, this dog was coming
11 at him, and going for his gun, and so I thought,
12 "Oh, well, here we go," so --
13 Q. In terms of reputation for backing up
14 other officers, are there several incidents
15 where Halligan was accused of not backing up
16 other officers?
17 A. Yes, there was one that I do recall.
18 Q. All right.
19 Was that a family fight?
20 A. I don't have a lot of information on
21 it, but a deputy or deputies were complaining
22 that he let the new deputy, the Deputy Suchan,
23 respond to a family fight by himself because he
24 said he was too busy in the LEC working on some
25 drug things, and some of the deputies thought
1244
1 that that was not good.
2 Q. In general, does he have a reputation
3 of not watching out for other guys and being
4 lazy?
5 A. It's sometimes described as he gets too
6 focused on what he's doing to pay attention to
7 what anyone else is doing.
8 Q. Was there a recent incident that you
9 were told about at Buford's, I think?
10 A. I'm sorry, say again?
11 Q. Buford's recently -- well, relatively
12 recently where he threw down his silverware and
13 talked harshly to a waitress in public?
14 A. Yes. I was at Buford's, and the
15 waitress was complaining to me and
16 Deputy Richardson about Halligan's conduct, and
17 said that he was angry that there were spots on
18 the silverware, and he threw the silverware down
19 on the table in front of her and ordered her to
20 immediately get him new silverware, or something
21 along that line. She was quite upset with
22 his -- with what happened.
23 Q. In connection with the Gailey case,
24 there was a newspaper article, which I have
25 marked as Exhibit 508, and this is after you
1245
1 were fired; right?
2 A. I believe so.
3 Q. And in the newspaper article it is
4 reported -- or you knew somehow that the -- the
5 guy, in fact, according to the report of the
6 newspaper, had, in fact, been violent to this
7 woman in the past, and she had run to Sioux City
8 with her kids?
9 A. My understanding was she was in Sioux
10 City at a shelter to stay away from him because
11 she feared harm from this guy.
12 Q. She had an in-place protective order
13 against him as of April 20th; correct? That's
14 according to the newspaper article, fifth
15 paragraph down. "She told the jurors she filed
16 for a protective order"?
17 A. According to the newspaper, that would
18 be right.
19 Q. All right.
20 And there was a search warrant
21 issued. She came back, and there was a search
22 warrant issued for the house. And the guy is at
23 large, and she goes to get her children from
24 school.
25 And she's at the house, and there
1246
1 are a bunch of deputies there, and nobody goes
2 with her?
3 A. That was my understanding. I was
4 informed of this by a deputy.
5 Q. All right.
6 And that's when he kidnapped her;
7 right?
8 A. Yes.
9 Q. Was that in accordance with proper
10 police procedure under 236.12?
11 A. I wouldn't think so.
12 Q. All right.
13 25 is a letter --
14 MS. CONLIN: May I offer
15 Exhibit 508?
16 MS. VALENTINE: Any objection?
17 MS. PENICK: To the relevancy of
18 the proceeding, yes.
19 MS. VALENTINE: Noted.
20 It will be received.
21 MS. CONLIN: Exhibit 25, is that
22 in?
23 MS. VALENTINE: Yes.
24 Q. And that is your record request of
25 December 17th, 2007. Did you ever get a
1247
1 response to that?
2 A. I never did.
3 Q. And when you got your letter on
4 December 13th, you were told that you would be
5 put on paid leave pending the outcome of the
6 hearing before the commission, but, in fact, you
7 were taken off paid leave as of January 25th?
8 A. Yes.
9 Q. You filed for unemployment
10 compensation?
11 A. Yes, I did.
12 Q. A hearing was scheduled?
13 A. Yes.
14 Q. Were you aware that they had challenged
15 your right to receive unemployment compensation?
16 A. No.
17 Q. And the hearing occurred, and you were
18 there and I was there, and they tried to call
19 the sheriff's office, and nobody answered, or he
20 was unavailable?
21 A. I recall, yes.
22 Q. And during that hearing, the hearing
23 officer told us that the sheriff's office said
24 that you were not discharged.
25 A. Yes, that's what we had heard.
1248
1 Q. Is it true that you do, in fact, think
2 that Sheriff Mickelson is incompetent?
3 A. I do believe he is incompetent, yes.
4 Q. And incapable of administering,
5 managing, and guiding the office?
6 A. Yes.
7 Q. And that he has, in fact, placed the
8 public in danger?
9 A. By being in a state of unreadiness,
10 yes.
11 MS. CONLIN: That's all I have.
12 MS. VALENTINE: Cross-examine?
13 MS. PENICK: Yes, please.
14 CROSS-EXAMINATION
15 BY MS. PENICK:
16 Q. Shall I call you Mr. Ruby, Curt?
17 A. Curt is fine, whatever is quickest and
18 easiest.
19 Q. Okay. I appreciate that.
20 Curt, do you have any notes or
21 recordings of any conversations that you had
22 with the sheriff during your employment?
23 A. I took notes. I didn't do any
24 recordings, if I'm understanding you correctly.
25 Q. Right.
1249
1 So you took notes during your
2 meetings with the sheriff?
3 A. No, not during, but soon afterwards,
4 you know, so I wouldn't forget.
5 Q. And have you used those notes to
6 refresh your recollection to prepare for your
7 testimony?
8 A. I have.
9 Q. And how about any conversations with
10 Jim O'Brien? Did you take notes of any of those
11 conversations?
12 A. On some things, yes.
13 Q. And do you still have those notes?
14 A. Yes, I do.
15 Q. And I'm not talking about any notes
16 that you -- or any communications that you gave
17 to your attorney in preparation for the hearing.
18 I'm talking about notes that you took as you
19 went along.
20 A. No, I don't have anything like that.
21 Q. And no recordings of any conversations
22 with --
23 A. No recordings, no.
24 Q. -- Chief Deputy O'Brien?
25 A. No. Some guys will do that, but I
1250
1 don't.
2 Q. You discussed a little bit the
3 unfortunate situation of your mother-in-law's
4 health deteriorating and passing, and I'm sorry
5 for that.
6 A. Thank you.
7 Q. Did you request time off to help care
8 for her during that time frame?
9 A. I did. I spoke with Chris O'Brien back
10 then and told him of the situation and asked him
11 if there was any way I could get some times off
12 in there, and he responded that there really
13 wasn't any room, so I, of course, couldn't take
14 days off.
15 Q. Did you put any written requests in for
16 time off?
17 A. No, I didn't put in any written
18 requests. I knew that this -- this -- you know,
19 that we were short, the schedule was full, but I
20 just saw if there -- asked him if there was a
21 way that we could maybe get some time in there.
22 Q. Did you request a leave of absence?
23 A. No, I did not.
24 Q. Did you feel that you were treated
25 inappropriately with respect to the not getting
1251
1 time off?
2 A. No. I recognized the department's
3 problem with that, and Rhonda and I accepted
4 that.
5 Q. You didn't file a grievance about that
6 situation, did you?
7 A. No.
8 Q. You mentioned that after the election
9 to replace Sheriff Griggs that Lieutenant Stubbs
10 was put on nights for several years?
11 A. Yes.
12 Q. Do you consider that some kind of
13 punishment?
14 A. It could be viewed as that, yes.
15 Q. Night sometimes isn't as desirable as
16 day shift; right?
17 A. Especially if you've been a ranking
18 officer and you've got some tenure in. It
19 doesn't seem quite right if he's paid his dues,
20 so to speak, and now he's back there.
21 Q. Do you not believe in this process
22 that's in place now as far as revolving the
23 shifts?
24 A. I think seniority should also be a
25 factor, you know.
1252
1 Q. Somebody has to work nights; right?
2 A. Somebody does, right.
3 Q. And you just think it should start with
4 the lower ranking people, and work your way up?
5 A. I would lean more towards higher
6 seniority. I wouldn't lock it in, but I think
7 that would be a factor to consider.
8 Q. You mentioned your recollection
9 regarding your mailbox being gone through, not
10 ransacked; right?
11 A. Not ransacked.
12 Q. And that you -- Did you complain to
13 Chief Deputy at the time about that?
14 A. I did. I complained to
15 Chief Deputy Chris O'Brien about that.
16 Q. Did you put your complaint in writing?
17 A. No, I did not.
18 Q. Did the problem continue?
19 A. No. It did cease.
20 Q. You mentioned that with respect to the
21 Tony Thompson incident, he had cooled down by
22 the time you got to the sally port; right?
23 A. Yeah. Well, sometimes after they've
24 had the cuffs on for a while, they become aware
25 that it's done, and then they'll start to become
1253
1 more reasonable.
2 Q. But you were still pretty upset when
3 you got there?
4 A. Oh, yes.
5 Q. You mentioned that Suchan, Andy Suchan,
6 was interviewed later regarding the situation
7 that occurred that day?
8 A. That was my understanding, yes.
9 Q. Okay.
10 And I think you said you wondered
11 if your conduct was in question?
12 A. That was -- that was the understanding,
13 yes.
14 Q. And that nobody spoke to you?
15 A. No.
16 Q. Did you go ask the sheriff, "Hey,
17 what's going on here?"
18 A. No, I did not.
19 Q. Did you ask -- I guess maybe it would
20 have been -- it would have been Jim O'Brien by
21 the time Andy Suchan was talked to by the chief
22 deputy?
23 A. Yes.
24 Q. Did you ask the chief deputy, "Hey, is
25 my conduct in question about this Tony Thompson
1254
1 thing?"
2 A. No, I did not ask him.
3 Q. In the discussion that we talked about,
4 that you talked about of January 6th, the first
5 time when Jim O'Brien was chief deputy and asked
6 you, "Hey, you know, I'm going to talk to you
7 about how things are going here," you said that,
8 "If I'm wrongfully accused, I'd take it all the
9 way."
10 A. Something along that line. Recall is
11 vague --
12 Q. Sure.
13 A. -- but that was the tone of it.
14 Q. Had you been accused of anything at
15 that point?
16 A. I had prior to that, yes.
17 Q. What?
18 A. Well, one thing, accused of, you know,
19 taking breaks too long at my house, but we all
20 know why.
21 Q. Okay.
22 And that was back in 2004; right?
23 A. Yes.
24 Q. And this is January 2006?
25 A. Uh-huh.
1255
1 MS. CONLIN: Answer for the
2 record, Curt.
3 THE WITNESS: Yes.
4 Q. Yes. You need to verbalize your
5 answers.
6 A. I'm sorry.
7 Q. Now, obviously, you've heard the
8 testimony that Jim O'Brien recalls you saying
9 that there would be a fight to the death?
10 A. Yes, I recall that, him saying that.
11 Q. If a deputy were to say something like
12 that about the sheriff, would you consider that
13 to be inappropriate?
14 A. It depends -- it depends on how it's
15 said and -- You can say something like that and
16 not mean literally a fight to the death. It's
17 an expression that people can use. There's --
18 You know, people say, "I'm going to kill you,"
19 and they don't mean they're going to kill you.
20 They just mean they're going to, you know --
21 Q. Do you think there's -- sometime in
22 using that phrase toward your boss is
23 appropriate?
24 A. Well, no. There are better ways of
25 saying something along that line.
1256
1 Q. That's not my question.
2 A. All right.
3 Q. Would it have been appropriate if a
4 deputy were to say, "There will be a fight to
5 the death" with respect to the sheriff?
6 A. One could deem that inappropriate, yes.
7 Q. Would you deem that inappropriate?
8 A. It depends on --
9 Q. Okay.
10 A. -- the tone, the -- you know, the body
11 language, all the things that go in, into
12 communication.
13 Q. Now, we talked about -- We didn't talk
14 about. We've heard lots of testimony about the
15 March 30th, 2006 date.
16 A. Yes.
17 Q. And when Rod Strait was working alone?
18 A. Uh-huh.
19 Q. And he was scheduled -- According to
20 him, the schedule reflected that he was the only
21 one scheduled to work; is that right?
22 A. Yes, that's what he said.
23 Q. And you said you just hadn't looked at
24 the schedule?
25 A. No, I hadn't paid any attention to that
1257
1 schedule.
2 Q. And are you saying that it's not your
3 job as a shift supervisor to ensure that those
4 shifts are covered?
5 A. I wasn't included into the scheduling
6 at that time. Once Jim O'Brien took over --
7 Chris O'Brien included me somewhat, but not a
8 lot, but when Jim O'Brien took over, he pretty
9 much took over all the scheduling, and I didn't
10 have anything to do with it.
11 Q. Well, I understand he made the
12 schedules initially.
13 A. Right.
14 Q. And they were posted.
15 A. Uh-huh.
16 Q. And that they talked about keeping one
17 in the lieutenant's drawer, right, where people
18 could switch days if they wanted to?
19 A. Sure. If you wanted a day off, you
20 would mark it and everybody could check if they
21 wanted that day, if it was marked or not.
22 Q. And you did that too; right?
23 A. Yeah. On occasion, yeah, when I --
24 when I asked for a day off and wanted a day off,
25 I would check that and mark it.
1258
1 Q. And your belief is that it was not
2 your job as the shift supervisor on that shift
3 to make sure that those days were covered?
4 You're saying that that was Jim O'Brien's job?
5 A. I believe that's his responsibility,
6 yes.
7 Q. And on that particular day, you've
8 admitted that you ignored a phone call that you
9 probably should have taken; right?
10 A. Yes. I'm not proud of that, but I'll
11 admit it.
12 Q. Do you think that any disciplinary
13 action should have been imposed on you for that?
14 A. I would have accepted a reprimand on
15 that and not -- not griped about it. It's
16 probably the one time I've done something like
17 that, and we could see that I paid for it.
18 Q. What do you mean, the one time you've
19 done something like that?
20 A. It's highly unusual for me to not
21 answer the phone if I know that the department
22 is calling. I will answer, but this was -- the
23 circumstances were such I put me first that day.
24 Q. Did you ever ask Deputy Mickelson what
25 happened?
1259
1 MS. CONLIN: I'm sorry. I think
2 you misspoke.
3 MS. PENICK: I'm sorry,
4 Deputy Richardson. Thank you.
5 A. I never talked to Deputy Mike
6 Richardson about it.
7 Q. I'm sorry. Mike, I put the two
8 together.
9 You didn't try to figure out what
10 went wrong that night?
11 A. No.
12 Q. Chief Deputy O'Brien kept asking you
13 what went wrong; right?
14 A. Right.
15 Q. He asked you on three different
16 occasions; right?
17 A. Right.
18 Q. But you didn't look into it?
19 A. No, right.
20 Q. And in one of those conversations, I
21 thought you said you were getting angry, and you
22 told Chief Deputy O'Brien that "You're talking
23 crazy."
24 A. Right.
25 Q. And you feel that's an appropriate way
1260
1 to speak to your commanding officer?
2 A. No, it's not appropriate.
3 Q. Do you think any discipline should have
4 occurred from that conversation?
5 A. It could have.
6 Q. You mentioned that you decided to
7 run -- you were thinking about running for
8 sheriff for quite some time; right?
9 A. Yes, I've been considering it very
10 much.
11 Q. And you had talked about it informally
12 with people that you socialize with?
13 A. Yes.
14 Q. Were there officers in the department
15 with whom you socialized?
16 A. Yes.
17 Q. Who?
18 A. A lot of them, whomever I run into. Do
19 you want to know the main ones I socialize with?
20 Q. Sure.
21 A. I believe myself to have a good
22 relationship with Mike Richardson and Rod Strait
23 and Jim Stubbs, Lieutenant Wilson when he was
24 around. Those are the primary guys that I enjoy
25 socializing with.
1261
1 Q. I'm assuming you don't socialize with
2 Mike Halligan much.
3 A. No. We don't have much in common.
4 Q. How about Luke Fleener?
5 A. No.
6 Q. How about Kevin Kruse?
7 A. No.
8 Q. I'm not sure if this is in respect to
9 charge 5 or 6, but it was one of those
10 conversations you had with Jim O'Brien, and I
11 thought you testified that, "Yeah, he maybe
12 could have interpreted what I did to be some
13 kind of stare, intimidating stare"?
14 A. Yes.
15 Q. Is that right?
16 A. Yes.
17 Q. And you said you were just standing
18 your ground?
19 A. I was.
20 Q. And you were being evasive, though?
21 A. I was.
22 Q. So that would have been, I believe --
23 yeah, the third conversation about the incident.
24 Is it clear to you which one was which?
25 A. It gets a little muddied up for me.
1262
1 Q. I understand.
2 Do you think that that
3 conversation -- That's the one where he said he
4 thought you pointed your finger at him, and you
5 weren't sure that you did that, you're not much
6 of a finger-pointer?
7 A. No. I don't -- I don't think I point
8 my finger.
9 Q. But you could have looked at him in a
10 way that he took as an intimidating stare;
11 right?
12 A. Well, I don't know about intimidating,
13 but -- but, yeah, a stare that one could deem
14 inappropriate, yes. I'll go with that.
15 Q. Do you think you should have had any
16 disciplinary action for that inappropriate
17 behavior?
18 A. Again, something along a reprimand or a
19 light discipline would have come my way, I would
20 have accepted it.
21 Q. You've admitted that you did tell the
22 sheriff and Jim O'Brien around that time frame,
23 May 12th of 2006, that, "I paid for these
24 phones, and I'll answer them when I want."
25 A. Right.
1263
1 Q. Is it your understanding that you're
2 supposed to answer the phone calls from the
3 sheriff or chief deputy when they call?
4 A. My understanding -- and we might be
5 flipping pages now, but the only time I am
6 required by policy is if during an emergency.
7 Q. You didn't know whether it was an
8 emergency on the day that Jim O'Brien called
9 your house, did you?
10 A. Actually, I did.
11 Q. What do you mean?
12 A. I turned on my radio to ensure there
13 wasn't an emergency.
14 Q. So you heard the phone ring?
15 A. Yeah.
16 Q. You saw -- You have Caller ID?
17 A. Right.
18 Q. Saw it was Jim O'Brien?
19 A. Right.
20 Q. Thought about, "Should I call him back
21 or not?"
22 A. Right.
23 Q. Turned the radio on to see what was
24 going on?
25 A. See if there was an emergency.
1264
1 Q. You know sometimes calls are made on
2 cell phones; right?
3 A. Yes.
4 Q. So you really didn't know there was an
5 emergency; right?
6 A. I didn't know 100 percent, but I was
7 reasonably sure that things were good.
8 Q. You talked about your martial arts and
9 the self-defense classes that you had been
10 teaching?
11 A. Yes.
12 Q. And you noticed the problem with the
13 flier?
14 A. Yes.
15 Q. And had it corrected?
16 A. Right.
17 Q. Do you know -- I mean, there were a
18 couple of fliers that went out. Was it not
19 until you saw the September flier that you
20 noticed?
21 A. I don't recall on that one.
22 Q. I would assume if you had noticed the
23 July flier, you would have corrected it before
24 the September one came out.
25 A. Yeah. And, you know, I don't know why
1265
1 I didn't -- I may have noticed that, but I don't
2 have any answer as to why I didn't correct that.
3 I do know that after the second
4 one, I noticed that, that I did talk to
5 Mr. Walker about this, change this.
6 Q. Now, with respect to Mike Halligan, one
7 comment -- I guess the first one I have down
8 here is that he made a comment about "don't go
9 pissing on any evidence" at the search warrant
10 scene; right?
11 A. Right.
12 Q. And you didn't feel that was
13 appropriate?
14 A. No.
15 Q. At that point in 2006, you were a
16 sergeant?
17 A. Yes.
18 Q. And what was his rank?
19 A. Detective.
20 Q. And not a sergeant detective?
21 A. No.
22 Q. And not a lieutenant detective?
23 A. No. He had no rank.
24 Q. So he was subordinate to you?
25 A. Right.
1266
1 Q. Did you take any disciplinary action
2 against him?
3 A. No.
4 Q. You know you could have; right?
5 A. I don't think it would have went very
6 far, but I could have tried to pursue it.
7 Q. So you didn't discipline Halligan
8 because you didn't think it would be effective?
9 A. No. I was pretty certain it would not
10 be.
11 Q. And with respect to the chase that Tony
12 Walter went on that night --
13 A. Yes.
14 Q. -- or morning, I guess, at the end of
15 the search warrant, I think you mentioned that
16 you dropped off the night vision goggles?
17 A. I did.
18 Q. And you were going to go drive around
19 the perimeter --
20 A. No, no.
21 Q. -- or drive in the area; is that right?
22 A. No. I dropped off the goggles. I
23 stayed with him.
24 Q. The tow truck; right?
25 A. With the tow truck, and then I was
1267
1 doing the inventory sheet for him while he
2 looked around.
3 Q. Okay.
4 A. And we were in close proximity of one
5 other. We were in each other's visual.
6 Q. Was he using the goggles at that point,
7 or no?
8 A. Periodically, he would. Well, they're
9 not -- Let me correct. They're not goggles --
10 Q. Okay, thank you.
11 A. -- if that will help.
12 You hold it, you have a screen,
13 and you just kind of move it around. One is a
14 heat seeker, and the other is kind of a -- It
15 just lights up the place. I don't know what you
16 call it right now. They're two different types,
17 and I gave him one. It had a screen, and he was
18 just looking through it.
19 Q. So did you not understand that he was
20 going to go out and look for this suspect when
21 you left?
22 A. My understanding was he had looked
23 around, and he was just going to do a quick
24 search around these buildings, which were right
25 there by the road, and I asked him, "Do you need
1268
1 anything?"
2 He said, "No. I'm just going to
3 look around these buildings."
4 I said, "Look, I'm going to just
5 go slowly down the road, and" -- because I
6 figured it would take him just a short amount of
7 time to glance over the buildings, and, of
8 course, you know, with the understanding if he
9 thought he saw something, give me a call. I'd
10 come back.
11 Q. Okay.
12 And when you search around a
13 building, sometimes it's nice for one officer to
14 go one side around the building and one to go
15 the other side, isn't it? Otherwise, you could
16 end up chasing someone around the building;
17 right?
18 A. Right, correct.
19 Q. You didn't feel you needed to help him
20 out any further that night?
21 A. I thought there was a pretty good
22 chance they weren't that close by this time. I
23 figured they had made some distance.
24 Q. But you were wrong?
25 A. Well, they had made some distance.
1269
1 They were down in the woods, yeah.
2 Q. And Tony was able to apprehend that
3 suspect?
4 A. Mr. -- Yeah, Tony Walter apprehended
5 him.
6 Q. And I thought you testified that you
7 said Tony should have waited for you to get
8 back?
9 A. No.
10 Q. What does that mean?
11 A. Tony, as soon as he saw the spot, or
12 whatever you want to call it --
13 Q. Okay.
14 A. He may have had a heat signature.
15 Q. Oh, I see.
16 A. -- went into the woods. I wasn't aware
17 he was going into the woods, and then -- when he
18 was going into the woods, and then he had
19 mentioned something, "I've got somebody down
20 here," something like that, so I just came right
21 back.
22 And then I was surprised to see
23 him coming out of the woods because I thought he
24 was just going to be around the building, but he
25 had, in fact, went beyond the buildings into the
1270
1 wood line and down the hill, so he went farther
2 than I anticipated him to go.
3 Q. Okay.
4 You went in to Sheriff Mickelson
5 after the search warrant and you complained
6 about Jim O'Brien. You thought he had lied to
7 you; right?
8 A. Yes.
9 Q. And did you document that complaint?
10 A. No. I didn't put anything in writing.
11 Q. You didn't file a grievance as dictated
12 in your general orders, did you?
13 A. No.
14 Q. And you felt Jim O'Brien lied to you
15 because you found out there were reserves
16 available?
17 A. Correct.
18 Q. Did you know where Chief Deputy O'Brien
19 got the information that there weren't reserves
20 available?
21 A. They're testifying it was Mark Gargano.
22 Q. Have you talked to Mark Gargano?
23 A. To the best of my knowledge, now, from
24 testimony, but at the time, no, I didn't know.
25 Q. You thought he just made it up?
1271
1 A. I thought he -- I thought he probably
2 hadn't tried very hard.
3 Q. But the testimony shows that he had
4 made some calls, and that's the information he
5 was given from the reserve chief; right?
6 A. Right, according to testimony.
7 Q. And you don't have testimony to
8 contradict that, do you? You don't know. You
9 didn't talk to Mark Gargano, did you?
10 A. I did not talk to Mark Gargano.
11 Q. I didn't understand what you said about
12 wanting deputies to be freed up, to not get into
13 situations too deep so they could become
14 available.
15 A. It's kind of a dilemma. I mean,
16 there's times you just -- you just have to. I
17 mean, you've got -- you've got an OWI guy going
18 all over the place or a family fight where you
19 have to arrest someone, you know, but to -- Oh,
20 it's hard to articulate.
21 I guess -- I guess to just keep
22 in mind that if we can fix a problem without
23 going too deep into it, and do it appropriately,
24 then by all means, if we can, you know, to keep
25 the shift free in case there is a family fight
1272
1 or there is a bad accident or something like
2 that.
3 Again, it's just -- it's a
4 balancing act, and sometimes you can do it,
5 sometimes you can't.
6 Q. You're not suggesting that the deputies
7 should short shrift any call; right?
8 A. No. I'm not suggesting they don't do
9 their duties.
10 Q. Okay.
11 A. You know. I know it sounds bad. It's
12 just difficult to articulate, but it's just
13 something you put on the scale, so to speak,
14 when you're out there.
15 Q. You sure want them to be efficient;
16 right?
17 A. To be what?
18 Q. Be efficient --
19 A. Oh, absolutely, sure.
20 Q. -- in executing their duties, but you
21 expect them to fully assist the public with the
22 calls that are made; right?
23 A. Absolutely.
24 Q. In your testimony regarding the meeting
25 in October of 2006 in which you were asked to go
1273
1 down for the fitness-for-duty evaluation, you
2 made a reference that Chief Deputy O'Brien
3 needed it more than you did.
4 A. Yes.
5 Q. Something along those lines; right?
6 A. Yes.
7 Q. Do you feel that's an appropriate
8 comment to make about your commanding officer?
9 A. Not -- No, it's not an appropriate
10 comment.
11 Q. Do you feel that any disciplinary
12 action would be warranted for making such a
13 comment about your commanding officer?
14 A. Maybe, but given the circumstances, I
15 don't believe my treatment was all that good,
16 and I think they can expect me to be unhappy,
17 given what was taking place.
18 Q. You mean your treatment by them?
19 A. Yes.
20 Q. By Chief Deputy O'Brien and
21 Sheriff Mickelson?
22 A. Yes.
23 Q. So they -- they were asking for it? Is
24 that what you're saying?
25 A. That's not what I'm saying.
1274
1 Q. They should have expected it?
2 A. I'm saying, when they set that type of
3 tone, you know, they can't expect me to be happy
4 about things.
5 Q. What do you mean, "they set that type
6 of tone"?
7 A. Well, I believe that if an officer is
8 brought in on something like this, they should
9 be more forthcoming. I realize that they maybe
10 don't want to give out deputies' names or
11 citizens' names that have complained for fear
12 of, you know, a potential retaliation, but it
13 would be nice to cite some clear examples and
14 explain to that officer exactly, you know, what,
15 as we say, the trigger may have been, or
16 triggers, but to just tell me that, you know,
17 "Well, we've got some complaints. We're sending
18 you down for this battery of tests," I think on
19 their part it's inappropriate too to communicate
20 in that fashion to me.
21 Q. Did you appeal the decision to send you
22 to a fitness-for-duty evaluation?
23 A. I guess I don't know as if there is an
24 appeal process.
25 Q. Did you consider that to be some kind
1275
1 of a disciplinary measure toward you?
2 A. I saw it more as -- as a discrediting,
3 and still do believe that this was a
4 discrediting ploy on Sheriff Mickelson's part.
5 Q. Did you file a grievance --
6 A. No, I did not.
7 Q. -- with the board of supervisors ever
8 about Sheriff Mickelson?
9 A. No.
10 Q. You know you have that availability
11 pursuant to the general orders; right?
12 A. I do now.
13 Q. And you never filed a complaint in
14 writing as required in the orders about
15 Chief Deputy O'Brien either, did you?
16 A. No, I didn't file a written complaint.
17 Q. Now, with respect to the meeting with
18 Dr. Christiansen and the outcome, the plan, I
19 guess, that she's described and that you and she
20 agreed to, the public parts of Exhibit G you
21 discussed a little bit on your direct exam, and
22 that --
23 MR. DRISCOLL: It's sealed.
24 THE WITNESS: Oh, thank you.
25 Q. I'm sorry. I can't put it up for you
1276
1 because it's more extensive than the part that
2 we can talk about in public, and I'm not sure
3 that you need to look at it.
4 A. All right.
5 Q. I just want to ask you -- If you do,
6 that's fine.
7 A. We'll try it.
8 Q. Dr. Christiansen suggested that you try
9 to give yourself an attitude change, right, and
10 that you agreed?
11 A. Yes.
12 Q. Did you feel that your attitude had
13 been negative at that point in your work life?
14 A. I had been very happy -- correction --
15 unhappy with this department, and it has
16 affected my attitude, so to speak.
17 Q. You were willing to try to improve your
18 attitude?
19 A. Yes.
20 Q. Do you think you did?
21 A. Yeah. I was on the right track. I
22 really was, and, yes, I did. I felt I made some
23 positive changes.
24 Q. And the next -- the second step, I
25 guess, if you couldn't self-correct is a
1277
1 suggestion that you use medication to make
2 progress on that goal?
3 A. That's what it says.
4 Q. Did you feel you were able to
5 sufficiently make progress without medication?
6 A. I didn't feel the need for medication.
7 I just didn't.
8 Q. You thought step 1 worked?
9 A. I thought so.
10 Q. And you just don't recall her
11 discussing that the sheriff would be getting
12 back with you and follow up and see how it was
13 going in about a month?
14 A. I did probably for a while, but as time
15 went by and I didn't hear anything else, I guess
16 I just forgot about it.
17 Q. And we discussed the night shift
18 recommendation. You said you don't really
19 remember that either, and she may not have told
20 you about the night shift recommendation. Did
21 she?
22 A. No. I was aware that she had supported
23 what I had hoped she would.
24 Q. I'm sorry, what do you mean?
25 A. I had told her that I thought it was a
1278
1 good idea to be on the night shift. I wasn't
2 aware that she supported that in writing.
3 Q. So I thought you had said that the
4 night shift was kind of hard on you?
5 A. It is, but I thought it was a better
6 alternative than being on days.
7 Q. I forgot to ask you something about
8 with the search warrant, the post-search warrant
9 chase of the suspect with Tony Walter.
10 A. Okay, I'm with you.
11 Q. Do you remember complaining to him
12 about uniforms that night?
13 A. About?
14 Q. Uniforms.
15 MS. CONLIN: Who?
16 MS. PENICK: To Tony Walter.
17 A. About who? His uniform?
18 Q. Well, were you complaining that
19 Sheriff Mickelson got better uniforms than the
20 rest of the guys?
21 A. I don't recall that.
22 Q. You don't recall that?
23 A. Huh-uh, no.
24 Q. I want to ask you about the potential
25 suicidal suspect in the trailer court. I think
1279
1 it was November 2007. Let me check here. You
2 know what I'm talking about; right?
3 A. Yes, I know what you're talking about.
4 Q. When you get calls like that, do you
5 tend to follow the procedures for barricaded or
6 hostage-type situations? Is that what you would
7 do?
8 A. Well, in this case you would consider
9 that, you know, that it could occur, and you
10 would maybe set up in case -- at least loosely
11 at first in case that would occur so that you
12 were able to quickly -- what am I trying to
13 say -- go that direction.
14 Q. She was in the house?
15 A. Yes.
16 Q. With a weapon?
17 A. She didn't have a weapon with her.
18 There may have been a weapon in the house, but
19 it wasn't like she was holding a weapon or had
20 one next to her.
21 Q. How do you know that?
22 A. Because I was in the trailer.
23 Q. When you went there?
24 A. Yeah.
25 Q. Did you get another call that there was
1280
1 a woman and a sawed-off shotgun in a trailer
2 threatening suicide?
3 A. We had heard that she had a shotgun and
4 that she was committing -- or that she was
5 threatening suicide.
6 Q. So the process for handling a
7 barricaded suspect would have been a good idea
8 to follow at this point, right, when you get the
9 call?
10 A. Yeah. It -- it would be okay to handle
11 it in that fashion.
12 Q. Well, would it be okay to not handle it
13 in that fashion?
14 A. There are some times that we will go to
15 the door and maybe stand off to the side and
16 just be ready and knock. I mean, it just
17 depends.
18 Q. Well, that's just not the approach that
19 you took in this case; right?
20 A. No.
21 Q. I mean, you positioned yourself as if
22 there could be some dangerous activity
23 occurring; right?
24 A. Yes.
25 Q. All right.
1281
1 And you mentioned that you -- I
2 think prepared yourself, if not contributed to,
3 the hostage negotiation handbook that the
4 sheriff's department uses; right?
5 A. Yes.
6 Q. Do you know, did you do the barricaded
7 suspects in hostage situations? I noticed --
8 when you mentioned that that handbook was in the
9 sheriff's office --
10 A. Uh-huh.
11 Q. -- and there was an insert in the front
12 cover that's called "Webster County Sheriff's
13 Office Standard Operating Procedures --
14 A. Okay.
15 Q. -- For Barricaded Suspect."
16 A. All right.
17 Q. And let me show you.
18 A. All right, sure.
19 Q. That would help out.
20 Is this something that you'd
21 recognize?
22 A. I believe I wrote it up.
23 Q. All right.
24 And if we go to the third page of
25 this document, there's a description, a heading
1282
1 called "Incident Command."
2 Do you see that?
3 A. Uh-huh.
4 MS. CONLIN: Yes?
5 Q. Yes? Can you say yes or no, please,
6 instead of --
7 A. I apologize. Yes.
8 Q. Thank you.
9 And it says, "The first on scene
10 deputies/officers will assume command until
11 relieved of command by appropriate command
12 personnel and/or command is relinquished";
13 right?
14 A. Yes.
15 Q. And would you have been the first
16 on-scene?
17 A. Well, first on-scene to establish where
18 the -- where the trailer was.
19 Q. Well, what do you mean?
20 A. Yeah. Well, first on-scene -- All
21 right.
22 I think we're talking about a
23 different time span here. I mean, I'm first
24 on-scene to locate the trailer, and everybody is
25 coming right behind me, you know, as soon as I
1283
1 locate the trailer.
2 And then I reposition and set up,
3 so you could argue we were all first on-scene
4 because no -- There was nothing beginning other
5 than just locating the place. It wasn't that we
6 were establishing communications at that point.
7 It was we waited until we all got there together
8 before we started taking any action.
9 Q. So you and Mike Richardson were stopped
10 at the entrance of the trailer court; right? Do
11 you recall that?
12 A. Well, near it, yeah. I mean, I was
13 kind of behind a tree and by another trailer
14 parked away where I had visual.
15 Q. I'm talking the first time where you
16 and Richardson were sitting there talking about
17 what you were going to do.
18 A. Sure.
19 Q. You hadn't gone down near the trailer
20 itself at that point, had you?
21 A. No, we hadn't.
22 Q. That was just where you and he were
23 deciding how you were going to approach the
24 situation; right?
25 A. Yeah. We were just waiting.
1284
1 Q. Waiting for Luke and Jim to get there?
2 A. Yeah.
3 Q. And when you got there, you didn't all
4 discuss who was going to be in command, did you?
5 A. No. Mike wanted -- No. Mike was the
6 guy who wanted them down there, and I said,
7 "Mike, I'm going to just move out of the way so
8 you can talk with them, and then I'll go find
9 the trailer and radio to you that I found it and
10 you guys can come down that way."
11 Q. Do you think in this situation that
12 command was clearly established and communicated
13 to all of the involved officers?
14 A. Well, I would presume command would be
15 the chief deputy.
16 Q. Right.
17 A. But if he wants to give any one of us
18 the command, he can.
19 Q. He could, right.
20 A. Yes, but he is the ranking officer, and
21 that is who is in charge.
22 Q. And as you saw him approaching, you
23 left towards the trailer; right? You left that
24 initial spot where you and Mike Richardson
25 stopped?
1285
1 A. Yes.
2 Q. And you went ahead?
3 A. Yes.
4 Q. And there's no potential danger in your
5 mind as far as you going in one direction and
6 not knowing where the other individuals, other
7 officers are going to go?
8 A. We have radio communications, and --
9 Yeah. No, I don't see a problem with that.
10 Q. But you didn't use your radio; you just
11 told Mike Richardson through the window.
12 A. But they're coming right at him,
13 towards him, so we're talking about seconds
14 here.
15 Q. But they didn't hear what you said to
16 Mike Richardson, did they?
17 A. No.
18 Q. Chief Deputy O'Brien and
19 Sergeant Fleener didn't hear that?
20 A. No, they didn't.
21 Q. You didn't use the radio; right?
22 A. No, I didn't.
23 Q. And there was no command post
24 established per se, was there?
25 A. No.
1286
1 MS. PENICK: We'd offer
2 Exhibit AA.
3 MS. VALENTINE: Any objection?
4 MS. CONLIN: No objection.
5 MS. VALENTINE: AA is received.
6 Q. I just want to bring your attention to,
7 if you look in the red book there, Exhibit A,
8 page 160. Tell me when you're there.
9 A. Are we looking for number 160?
10 Q. Page 160 at the bottom, and then
11 number 50 at the top of the page.
12 A. Oh, I see. I'm sorry. 160.
13 Okay, I'm with you.
14 Q. This is the general order relating to
15 grievances. Do you see that?
16 A. Yes.
17 Q. And I think you said -- Did you just
18 become aware recently that this was included in
19 the general orders, or was I thinking of a
20 different one?
21 A. No, just when you told me.
22 Q. You didn't know?
23 A. I didn't remember this was in there.
24 Q. You didn't know that you could bring a
25 grievance against the sheriff to the board of
1287
1 supervisors?
2 A. No, I didn't.
3 Q. You do have a copy of the general
4 orders?
5 A. I do.
6 Q. Or you did?
7 A. Yes.
8 Q. Well, you do because you produced it in
9 discovery; right?
10 A. Yes.
11 MS. CONLIN: We don't do
12 discovery.
13 MS. PENICK: That's true, or not
14 as the case may be.
15 Q. And then if you could -- You can keep
16 that open.
17 A. Uh-huh.
18 Q. I'm not sure that you need to pull it,
19 but there's an Exhibit 501, is the Webster
20 County handbook.
21 A. Okay.
22 Q. And this is -- I'm looking at page 232
23 and 234. I guess I can show you. You did get a
24 copy of the county handbook; right?
25 A. Yes.
1288
1 Q. And there's an Equal Employment
2 Opportunity section, and the policy -- it's --
3 Well, I guess, let me ask you, when do you think
4 that the sheriff first started discriminating
5 against you because of your political activity?
6 A. Probably sometime in '06, but --
7 Q. Okay.
8 And I understand your feeling is
9 your political activity and your expressions in
10 support of those are protected by law.
11 A. Right.
12 Q. Is that your understanding?
13 A. That's my understanding.
14 Q. And so the EEO policy prohibits
15 discrimination based on any characteristic
16 protected by local, state or federal law; right?
17 A. Okay.
18 Q. And then harassment is also prohibited
19 in this handbook; right?
20 A. Yes.
21 Q. Okay.
22 Again, "any other characteristic
23 protected by local, state or federal law";
24 right?
25 A. Uh-huh, right.
1289
1 Q. And just to be clear, if you believe
2 that you're being harassed or subjected to
3 discrimination of any kind, you should use the
4 complaint procedure for sexual harassment
5 allegations?
6 A. Yes.
7 Q. And I don't know why it says that, but
8 it does, and why that's the process, but the
9 sexual harassment procedures that are to be
10 followed when you think you're being
11 discriminated against or harassed on any basis
12 ask you to bring the problem to the attention of
13 the department head, the county attorney or the
14 board of supervisors; right?
15 A. Okay.
16 We're in sexual harassment,
17 but --
18 Q. Right, but the provisions we just
19 looked at said to follow these procedures if you
20 have a complaint; right?
21 A. Yes.
22 Q. And, obviously, going to your
23 department head probably wouldn't work if your
24 complaint is against your department head;
25 right?
1290
1 A. Correct.
2 Q. So this policy says you could go to the
3 county attorney. Did you do that?
4 A. No.
5 Q. And it says you could go to the board
6 of supervisors. Did you do that?
7 A. No, I did not.
8 Q. Can you stay in your red book now? Go
9 to page 235.
10 MS. CONLIN: Of?
11 Q. Exhibit A, the same exhibit that you
12 were looking at previously, the general orders.
13 Okay.
14 And look at number 24,
15 "Complaints Against Superiors." Do you see
16 that --
17 A. Yes, I do.
18 Q. -- with page 235 of Exhibit A?
19 A. Uh-huh, yes.
20 Q. Number 24. Okay.
21 And you've made a complaint about
22 Jim O'Brien regarding the search warrant; right?
23 A. I did.
24 Q. But you didn't follow this complaint
25 procedure set forth in the general orders, did
1291
1 you?
2 A. I did not.
3 Q. You didn't submit any complaint about
4 Jim O'Brien or Sheriff Mickelson in writing in
5 any form, did you?
6 A. No, I did not.
7 Q. Now go to page 155, that same exhibit.
8 A. I'm there.
9 Q. Okay.
10 In the number 8 on the top of
11 that page, we saw this in previous testimony. I
12 just want to make sure that you understood that
13 you are required to maintain a working knowledge
14 of the law and ordinances and the rules of the
15 department including general and special orders;
16 right?
17 A. Yes.
18 Q. And you said you didn't even know that
19 you could grieve against your supervisor; right?
20 A. Not through this book, I didn't.
21 Q. So you weren't in compliance with this
22 general order, were you?
23 A. No.
24 MS. CONLIN: Wait a minute.
25 Where are you?
1292
1 MS. PENICK: Page 155, the one
2 that -- paragraph 8, "Knowledge of Laws and
3 Regulations."
4 Q. Now turn to page --
5 MS. CONLIN: Wait a minute.
6 I want to object to the question
7 because there is nothing mandatory requiring a
8 lower ranked officer to file a complaint against
9 a higher officer, or for that matter, anybody
10 else. Misstatement of the evidence.
11 MS. VALENTINE: I think the
12 record speaks for itself, and the commission
13 will interpret the policies that are provided.
14 Q. Now, please turn to page 233 of these
15 general orders.
16 A. I'm there.
17 Q. Okay.
18 Paragraph 13, that -- and you
19 were a supervisor of your shift, is that
20 correct, for some period of time?
21 A. For some shifts, for some periods of
22 time, yes.
23 Q. And I understand the highest ranking
24 officer assigned to that shift is to be that
25 shift supervisor?
1293
1 A. Yes, the highest ranking.
2 Q. As this word has been used during this?
3 A. Yes.
4 Q. And paragraph 13 allows supervisor
5 personnel to take four different disciplinary
6 measures with respect to their subordinates,
7 doesn't it?
8 A. That's what it says.
9 Q. And I believe you said you didn't take
10 any disciplinary measures with respect to
11 Halligan; is that right?
12 A. No, I did not.
13 Q. And you didn't take any disciplinary
14 measures with respect to Mike Richardson for
15 doing we still don't know what on March 30th;
16 right?
17 A. Right.
18 Q. Turn to 193, please, page 193 of that
19 same document. We heard some testimony about
20 the vacation policy in the previous couple of
21 days, and according to this written policy,
22 that -- paragraph 1 says, "All vacation requests
23 will be in writing, dated and signed and
24 submitted to the Chief Deputy at least 30 days
25 before the month affected."
1294
1 Do you see that?
2 A. I do.
3 Q. That's not the practice that the
4 department followed, is it?
5 A. Yeah. Over the years, that was -- It
6 wasn't followed that tight. It was more --
7 Q. There was more flexibility than that?
8 A. Yeah.
9 Q. Because you can't anticipate, most of
10 the time, 30 days in advance when you'll need
11 vacation?
12 A. Correct.
13 Q. And as a shift supervisor, you did
14 approve requests that were for less than 30 days
15 out; right?
16 A. Yes.
17 Q. You feel that you've been in a hostile
18 work environment since 2004, don't you?
19 A. Off and on, yeah. Things don't happen
20 every day, but there are these instances that
21 have been talked about.
22 Q. You even began to feel a little hostile
23 yourself, didn't you?
24 A. Felt pretty unhappy about it.
25 Q. Now, you served some time in the Army;
1295
1 is that right?
2 A. Yes.
3 Q. And you were enlisted for three years?
4 A. I was enlisted for three.
5 Q. And you were honorably discharged one
6 year into that three-year tour; right?
7 A. Correct.
8 Q. And you described your discharge based
9 upon your challenging your contract because the
10 captain didn't do things right?
11 A. It was a contract dispute. I wasn't to
12 be sent overseas, and they were trying to send
13 me overseas, and I had to go to my commanding
14 officer to challenge the contract.
15 Q. And you said that the captain said some
16 stupid things and you said some stupid things;
17 right?
18 A. Yes.
19 Q. And you've had some trouble controlling
20 your temper in the past, haven't you?
21 A. I've -- I have asserted myself before
22 authority in the past, yes.
23 Q. You wouldn't say you've had trouble
24 controlling your temper?
25 A. I don't know if I would put it that
1296
1 way, but -- but I will exhibit my displeasure.
2 Q. When you feel stressed, you sometimes
3 regress and go back to your old habits; is that
4 right?
5 A. Yes.
6 Q. Now, when you worked for the Fort Dodge
7 Police Department, there was a chief of police
8 that you got along with pretty well at first;
9 right?
10 A. Yes.
11 Q. And then he left?
12 A. Yes.
13 Q. And things kind of went off the charts,
14 in your words, didn't they?
15 A. Yeah. Things didn't go well for me
16 after he had left.
17 Q. You felt that the assistant chief
18 didn't waste his time in coming after you; is
19 that right?
20 A. I wouldn't say coming after me, but --
21 Q. You haven't said coming after you?
22 Have you said you felt the assistant chief was
23 coming after you?
24 A. Not that I recall, but --
25 Q. Okay.
1297
1 You felt he wanted to get rid of
2 you, didn't you?
3 A. Are we talking back in the department
4 days?
5 Q. Back at the police department, yes.
6 A. We're talking about the assistant
7 chief?
8 Q. That's correct.
9 MS. CONLIN: Perhaps you could
10 identify that person by name?
11 MS. PENICK: Well, all I have --
12 my understanding is you said the assistant
13 chief, and so I'm not sure who that was.
14 A. We're getting back there a ways. I
15 don't recall this.
16 Q. Do you feel they gave you a lot of
17 dirty assignments when you worked for the new
18 chief of police?
19 A. They gave me a lot of assignments.
20 They -- I do believe that they purposely
21 burdened me with a lot of work whereas many of
22 the others had much more comfortable days every
23 day.
24 Q. And you feel that the work environment
25 at the sheriff's office had some similar
1298
1 elements to that negative environment back at
2 the P.D., don't you?
3 A. There are some similarities, but there
4 is not the intensity as what was there in the
5 P.D. days.
6 Q. You don't think that Sheriff Mickelson
7 is quite as mean-spirited as what you dealt with
8 back at the P.D., do you?
9 A. No. No, not as bad as what that P.D.
10 was.
11 Q. Now, with respect to Sheriff Mickelson,
12 you think the problem started when he first got
13 elected, right, because you supported Stubbs?
14 A. I suspect so.
15 Q. But you think things went downhill
16 about the time that your mother-in-law passed
17 away?
18 A. Right, but don't confuse that with the
19 trigger of things.
20 Q. Well, have you said before that you
21 think things went downhill when your
22 mother-in-law passed away, and you pushed back?
23 A. In that -- in that there were some
24 things in that time frame where I thought things
25 were starting to not go well between myself and
1299
1 this administration.
2 Q. That was back in May of 2004?
3 A. Right.
4 Q. And you hadn't decided to run for
5 sheriff at that time; right?
6 A. No, I had not.
7 MS. PENICK: I have Exhibit BB,
8 and for the sake of ease and time constraints
9 and confidentiality, this is -- includes some
10 documents from Dr. Eva Christiansen's file, and
11 I propose that this whole thing just be put
12 under seal, if that's acceptable to you. We can
13 sort through it. Some of them have already been
14 produced in the public record, and I offer
15 Exhibit BB.
16 MS. CONLIN: To which I object on
17 a number of grounds, the first of which is I'm
18 not sure where -- I've not looked at the law. I
19 do not know whether or not it is appropriate for
20 the sheriff's department to have these documents
21 without a waiver, and maybe there is a waiver
22 and I just haven't seen it.
23 MS. PENICK: It's in his file.
24 I'll point it out to you.
25 MS. CONLIN: And then, in
1300
1 addition to that, I've -- There are a number of
2 handwritten notes. There's a great deal of
3 material that is not self-explanatory, and I
4 think it's inappropriate to introduce documents
5 that are subject to interpretation that you just
6 don't have a clue what it's about, subject not
7 only to interpretation, but misinterpretation.
8 MS. VALENTINE: What I think the
9 commission is inclined to do -- not think, I
10 know -- with BB is, at this point in time the
11 documents will be sealed because we haven't
12 reviewed them either. We don't know what
13 content is in them, so let's err on the safe
14 side and seal them, and then due to time
15 constraints, I will allow -- I think this should
16 be addressed in your post-hearing briefs in
17 terms of what this means or doesn't mean and
18 what we should or shouldn't do with it.
19 You did offer, and you objected.
20 I'm sorry.
21 So BB will be admitted under seal
22 until or pending further notification of the
23 parties.
24 Q. Have you in the past admitted to being
25 a pretty controlling person?
1301
1 A. In -- in the far distant past, yes.
2 Q. But you've had -- You did a lot of
3 blaming of other people?
4 A. Yes, many years ago.
5 Q. That you weren't taking much
6 responsibility for your own actions; right?
7 A. Yes, that could be said.
8 Q. And you were -- let's see -- back in
9 1993 learning or trying -- learning to no longer
10 try to control other people for too many --
11 A. Yes. I was exposed to some information
12 that I thought would be very helpful in that
13 area.
14 Q. I'd alert the commission to pages --
15 I'm sorry -- Exhibit 5, Plaintiff's Exhibit 5,
16 page 301 and 302, just for that point of
17 reference as far as a newspaper article where
18 you were interviewed and you discussed your
19 difficulty with control and blame in the past;
20 right?
21 A. Okay.
22 Q. Now, you've talked about some of the
23 incidents that are listed in the notice of
24 violations, and you've admitted that you've made
25 some mistakes along the way; is that right?
1302
1 A. Yes, I did.
2 Q. And you've admitted that some
3 disciplinary measure may have been appropriate
4 for some of those incidents; right?
5 A. Yes.
6 Q. Let me ask you, while you've got your
7 book open, page 139 in Exhibit A again, the red
8 book.
9 A. I'm there.
10 Q. Okay. I'm not yet.
11 Paragraph number 5 defines
12 insubordination for the purposes of these
13 general rules.
14 A. Yes.
15 Q. The last sentence says insubordination
16 involves "Disrespectful, mutinous, insolent, or
17 abusive language toward a supervising officer is
18 insubordination."
19 A. Yes.
20 Q. Do you feel that you ever engaged in
21 insubordination as it's described in this policy
22 towards Sheriff Mickelson?
23 A. Yes.
24 Q. Do you feel you engaged in
25 insubordination as defined in this policy to
1303
1 Chief Deputy O'Brien?
2 A. Yes.
3 Q. And forgive me. I think I had heard
4 reference that you had not been disciplined
5 throughout your law enforcement history; is that
6 correct?
7 A. To my knowledge.
8 Q. Okay. I forgot something. Let me
9 cover something else here quick.
10 Now, you recall the incident that
11 Kevin Kruse talked about where you were
12 complaining, in his words, about getting more
13 calls than other people at that time?
14 A. I'm sorry. We're talking about his
15 testimony?
16 Q. Yes.
17 A. All right.
18 Q. Do you remember that meeting on a
19 gravel road or something that he described?
20 A. Feel free to refresh my memory a little
21 bit more on the details.
22 Q. Sure, sure.
23 I believe that Lieutenant Kruse
24 said that he asked you to meet him out at this
25 intersection?
1304
1 A. Right, I remember that.
2 Q. And you said, according to him, "Well,
3 how does it feel?" And "You took six calls last
4 night, and I didn't take any."
5 Do you recall that exchange?
6 A. No.
7 Q. Are you saying that that didn't happen,
8 or you just don't recall it?
9 A. Just don't recall it.
10 Q. Okay.
11 Were you concerned throughout
12 your career about you were maybe getting too
13 many calls compared to other people? Has that
14 been a concern of yours before?
15 A. On the P.D., that was a concern, but
16 there's such a high volume of calls versus, you
17 know, what we do, it's pretty rare to be really
18 burdened with calls on the sheriff's department.
19 Q. I have marked Exhibit GG. This is a
20 letter from you to Chief Metzger back in 1993
21 where you are complaining about unevenly
22 distributed workload; right?
23 A. Yes.
24 MS. CONLIN: Wait. I object to
25 that. This isn't what this is about. He's a
1305
1 union chair. He's complaining on behalf of
2 somebody else.
3 Q. Well, it says, "my complaint of
4 unevenly distributed work load" in the first
5 sentence, doesn't it?
6 MS. VALENTINE: Well, in terms of
7 the objection, I am going to overrule it and
8 allow the exhibit and presume that the witness
9 will testify what GG is or is not in 10 minutes
10 or less.
11 MS. CONLIN: I'm sorry. I did
12 not hear you because I was not paying attention,
13 for which I apologize.
14 MS. VALENTINE: We're going to
15 admit GG.
16 MS. CONLIN: Yes.
17 MS. VALENTINE: And I'm just
18 reminding the parties of the time again.
19 MS. PENICK: Is there a question?
20 (Requested portion of the record
21 was read.)
22 Q. And did you feel that at times the
23 workload was unevenly distributed in the
24 sheriff's office as well?
25 A. No. That wasn't -- wasn't the problem.
1306
1 Q. That wasn't a problem?
2 A. No.
3 Q. Since Kevin Kruse mentioned the
4 incident and you complaining, I wanted to touch
5 base on that with you, but you're saying there
6 was never a problem with workload with the
7 sheriff's department?
8 A. No, not with the workload.
9 Q. Okay.
10 You felt when you worked at the
11 Fort Dodge Police Department that you had --
12 that there was some improper administrative
13 conduct directed towards you by the chief and
14 assistant chief; is that right?
15 A. I don't recall.
16 Q. Okay.
17 Let me show you -- I've got
18 Exhibit KK. It's a grievance that you filed,
19 and I think this is on your own behalf. You
20 signed it as a member and as the steward.
21 A. All right.
22 Q. And it does not describe what that
23 improper administrative conduct is.
24 Oh, I'm sorry. You need the
25 original. Let me trade you. I'm sorry about
1307
1 that.
2 A. All right. Is there a question waiting
3 for me to answer?
4 Q. I'm not sure, so let me ask you another
5 one.
6 Do you know what administrative
7 conduct you were referencing in this grievance?
8 A. You know, I don't recall what I was
9 talking about with this.
10 Q. Okay.
11 You had some problem with the
12 administration at that time; right?
13 A. Yeah. I don't know if something had
14 occurred, or what. I don't have a recall on
15 that.
16 Q. Let me figure out a way to do this
17 quickly here. I don't think there is.
18 I just want the record to be
19 clear. Here's Exhibit II. This is reference of
20 a verbal warning you got from the Fort Dodge
21 Police Department, isn't it, about taking
22 breaks?
23 A. Yes.
24 MS. PENICK: I offer II.
25 MS. VALENTINE: Any objection?
1308
1 MS. CONLIN: No, no.
2 MS. VALENTINE: II received.
3 Q. And you were written up, it appears --
4 I'll hand you Exhibit MM -- for talking to the
5 news media without consent of the chief of
6 police in Exhibit MM, and you were directed to
7 secure approval from the chief; is that right?
8 A. Okay, yes.
9 MS. PENICK: Offer MM.
10 MS. VALENTINE: Any objection?
11 MS. CONLIN: No.
12 MS. VALENTINE: Received.
13 Q. JJ is a settlement agreement that was
14 in your personnel file regarding a PERB case
15 setting forth different agreements and
16 indicating -- let's see -- that you're not going
17 to wear your Fort Dodge Police Department
18 uniform while instructing courses in
19 paragraph 2; is that right?
20 A. Yes.
21 Q. And that you're not going to be listed
22 as a Fort Dodge police officer in the course
23 catalog for courses that you teach?
24 A. Correct.
25 Q. And that -- number 5, that you're going
1309
1 to inform the chief when you're going to be
2 teaching a course and the nature of the course;
3 right?
4 A. Yes.
5 Q. So there were some issues with the Fort
6 Dodge Police Department about your work outside
7 of your official duties; is that right?
8 A. Yes, there was.
9 MS. PENICK: Offer JJ.
10 MS. VALENTINE: Any objection?
11 MS. CONLIN: No objection.
12 MS. VALENTINE: Received.
13 Q. HH is departmental correspondence
14 from 1991 from Captain Metzger in which you were
15 sent home after making a statement to the
16 dispatcher that should have been directed to a
17 supervisor.
18 Now, I've read this, and I'm not
19 really sure what the comment means, and that may
20 be my naivete, but do you remember this
21 incident?
22 A. Very vaguely.
23 Q. Were you sent home -- was that in the
24 middle of your shift -- at about 1840? Would
25 you have any idea at this point in time?
1310
1 A. I won't argue with the document.
2 MS. PENICK: Offer HH.
3 MS. CONLIN: No objection.
4 MS. VALENTINE: Received.
5 Q. You did have occasion to have MMPI
6 exams while you were in the Fort Dodge Police
7 Department; right?
8 A. Yes.
9 Q. And we're not going to go into the
10 contents of any of those exams.
11 You were sent for follow-up
12 evaluations after two of those exams, weren't
13 you?
14 A. I remember a follow-up on one of them.
15 Q. Okay.
16 A. But, again, I won't argue with any
17 documents that show otherwise.
18 Q. Did you feel that those follow-up exams
19 ordered by the Fort Dodge Police Department were
20 political in nature?
21 A. No, I didn't.
22 Q. Now --
23 MS. VALENTINE: Ms. Penick, not
24 to interrupt, but how much longer do you believe
25 you have?
1311
1 MS. PENICK: I have one more
2 issue, one more area.
3 MR. DRISCOLL: And then I
4 assume -- I mean, we're at noon.
5 MS. CONLIN: You know, what I
6 would propose to do with almost all of these
7 issues is to submit perhaps an affidavit from
8 Curt that would cover anything that needs
9 explanation.
10 MS. VALENTINE: On redirect?
11 Pretty much, your redirect would be affidavit?
12 MS. CONLIN: Yes. I have perhaps
13 a couple of questions that I think should be
14 part of this, and then I have a couple of
15 housekeeping matters with my capable staff.
16 I really need a very brief break,
17 if that would be possible. If it's not, then I
18 will just sit here in discomfort.
19 MS. VALENTINE: Is this issue
20 like a 5-minute issue or a 30-minute issue?
21 MS. PENICK: Well, probably 15
22 minutes. I just don't -- I'll do as much as I
23 can quickly.
24 MS. VALENTINE: Okay.
25 MS. CONLIN: You know, let's go
1312
1 off the record a minute.
2 (An off-the-record discussion
3 was held.)
4 Q. I want to talk to you about the
5 domestic violence calls that are listed in your
6 notice of violations, and I understand you're
7 well-versed in the domestic laws.
8 Do you do any training using the
9 Advocate Training Manual by the Iowa Coalition
10 Against Domestic Violence?
11 A. No, I don't use that.
12 Q. You don't use that.
13 Are you familiar with that
14 document?
15 A. I'm not sure.
16 Q. You are familiar with the Iowa
17 Coalition Against Domestic Violence?
18 A. Yes, I am.
19 Q. You just use other materials for your
20 training?
21 A. Well, I don't do it a lot anymore.
22 It's something that I haven't done regularly in
23 more than ten years.
24 Q. And I believe you testified, with
25 respect to the Virginia Carlson situation, that
1313
1 you felt you had the discretion not to file
2 charges that night; right?
3 A. Correct.
4 Q. Now, you heard Virginia testify
5 yesterday; right?
6 A. I did.
7 Q. And she said -- I asked her, "Did Vic
8 hurt you that night?"
9 She said, "Yes."
10 And I said, "Did you tell Curt?"
11 And she said, "Curt knew."
12 Is she mistaken?
13 A. I don't remember that in the testimony,
14 and, no, I didn't know that she had a bodily
15 injury.
16 Q. Well, her hair was pulled?
17 A. Yes.
18 Q. And her hair is part of her body;
19 right?
20 A. Right.
21 Q. And so the issue is whether there was
22 an injury, in your mind? Is that what you have
23 the issue with?
24 A. I'm saying I didn't think that from the
25 description she gave that that fell far enough
1314
1 into bodily injury language.
2 Q. Well, bodily injury is a bodily injury;
3 right?
4 A. Correct.
5 Q. An injury to the body?
6 A. Yes.
7 Q. And an injury is a harm or a hurt;
8 right?
9 A. Yes.
10 Q. Did you talk to Virginia -- I mean, I'm
11 sorry -- Virleen, her daughter, that night?
12 A. Well, she mostly talked to me, but --
13 Q. I heard she was kind of talking quite a
14 bit.
15 A. -- but I tried to stay focused with
16 Virginia, and I asked Officer Kenyon to visit
17 with the daughter.
18 Q. Okay.
19 And I just -- Did you not hear
20 Virleen say that her mom's leg was shut in the
21 door?
22 A. I was pretty focused on Virginia. We
23 were just talking about -- you know, she
24 mentioned her hair was pulled.
25 Q. Did you ask her if he did anything
1315
1 else?
2 A. I don't recall.
3 Q. And so I guess, in your opinion, pulled
4 hair isn't a bodily injury; is that right?
5 A. Well, it depends on how hard hair is
6 pulled if it hurts or not.
7 Q. True, true.
8 Was her hair about the way that
9 it was yesterday when she testified?
10 A. I don't recall.
11 Q. Don't recall.
12 You don't recall her telling you
13 that she was hurt?
14 A. No.
15 Q. I know from your testimony and from the
16 testimony of the witnesses that you wanted to
17 give as much deference as you can to victims in
18 that situation; right?
19 A. As much what?
20 Q. Deference to the victim as far as what
21 they want to happen?
22 A. If I can.
23 Q. You know, there are some circumstances
24 when the law requires you to arrest; right?
25 A. I am aware of this.
1316
1 Q. Right.
2 And if there's a bodily injury,
3 you have to arrest; is that correct?
4 A. Correct.
5 Q. And the Code -- and I'm talking about
6 236.12(2)(b) -- says that if you have probable
7 cause to believe that domestic abuse assault has
8 been committed resulting in a bodily injury, you
9 shall arrest.
10 A. I am aware of that.
11 Q. Is that right?
12 A. Yes.
13 Q. And that upon investigation -- and that
14 includes a reasonable inquiry of the alleged
15 victim and other witnesses; right?
16 A. That's what it reads, yes.
17 Q. That's what it reads, so that's what --
18 If you've done an investigation and the witness
19 and the witnesses tell you that there has been
20 bodily injury, you have to arrest.
21 A. Yes, if there's probable cause to
22 believe.
23 Q. Right.
24 Well, probable cause, I suppose
25 if Virginia told you, "I was hurt" --
1317
1 A. Yeah. If I believe them to be credible
2 and everything seemed to fit, yes.
3 Q. And there was no issue as far as
4 Virginia's credibility, is there?
5 A. Oh, no.
6 Q. And you had explained that you -- that
7 Victor was in the house, and that Rod Strait --
8 I'm sorry. That was Rod's testimony.
9 Somebody tried to make contact
10 with him?
11 A. Rod was at the door. I don't recall,
12 but I think his testimony was that he knocked,
13 but I won't hold to that.
14 Q. You didn't try to talk to Vic, did you?
15 A. No, I did not.
16 Q. And you've learned, then, that he
17 actually admitted the next day what he had done
18 to his wife; right?
19 A. I don't know as if I learned the next
20 day or not.
21 Q. That's true.
22 Well, you've heard testimony at
23 least today that he came in the sheriff's office
24 the next day and said --
25 A. That's right, yes.
1318
1 Q. -- "You're damn right. I pulled her
2 hair, and I shut her leg in the door," something
3 along that line?
4 A. Something along that line.
5 Q. Now, isn't it important to know the
6 status of the offender when you're investigating
7 a domestic call, the location, the -- what they
8 are doing, whether they have weapons?
9 A. Normally.
10 Q. And I think Virginia said she didn't
11 think there were any guns in the house; is that
12 right?
13 A. Right.
14 Q. You know there are other things than
15 guns that are weapons too; right?
16 A. Sure.
17 Q. And Virleen talked about a big yellow
18 flashlight that Vic had?
19 A. Yeah, there was talk of a flashlight.
20 Q. Did Virginia talk about the flashlight?
21 A. No, not -- not when I was there. It
22 came out later in court that I learned about the
23 flashlight.
24 Q. It's important for you, if you can, to
25 get in the house and look for signs of struggle
1319
1 or signs of other endangered activity; right?
2 A. But it was my understanding everything
3 had occurred outside.
4 Q. Right out in the garage area?
5 A. In the yard.
6 Q. In the yard.
7 And I just want for you to take a
8 look at -- We're looking at 236.12. This is
9 Exhibit N. The last section of that code
10 actually provides protection for you and other
11 police officers, right, when you take action?
12 A. I'm sorry. Say that again, please.
13 Q. Sure. Subsection 4 at the bottom that
14 says, "A peace officer is not civilly or
15 criminally liable for actions pursuant to this
16 section taken in good faith"; correct?
17 A. Correct.
18 Q. So that protects you, say, if Virginia
19 were to say, "I really don't want to do it right
20 now," and you say, "I'm sorry, Virginia. I'm
21 going to take this into my own hands and arrest
22 him."
23 A. Yes, I'm protected by that law.
24 Q. And so far as what I've read in the
25 materials that you've provided here, the
1320
1 articles in Exhibit 5, part of the reason that
2 the law changed in 1986 was to take that
3 decision away from the victim so they didn't
4 have to be the one to charge their love, their
5 husband, their wife with this charge; right?
6 A. Correct.
7 Q. Now, with respect to the Chris Long
8 matter, if you want to look at your statement
9 again? It's page 349, tab S. You wrote this up
10 just as a note to other deputies, you said?
11 I can put it up.
12 A. I believe I gave that to the chief
13 deputy.
14 Q. Okay.
15 A. And so that -- if he thought to share
16 it, I think he could, but I just wanted him to
17 be aware of what was going on.
18 Q. And you said it was kind of a chaotic
19 scene when you were there?
20 A. A little more than chaotic, or a little
21 more than "kind of."
22 Q. What do you mean by that?
23 A. Well, people were running around,
24 excited and screaming.
25 Q. How many people were there?
1321
1 A. Oh, I don't know. Six, seven, eight.
2 Q. Were they all family members or --
3 A. No. It was a place where they party
4 and gathered real late very frequently.
5 Q. And this was what time of day?
6 A. Well, it was early morning, like two in
7 the morning or after, somewhere thereabouts.
8 Q. And so you wrote this -- It looks like
9 you worked that Monday night, and that Chris
10 came in -- Where does it say that -- Monday
11 evening? Or he called you Monday evening?
12 A. Right.
13 Q. Because he wanted to file a charge
14 against the guy that beat him up --
15 A. Right.
16 Q. -- while he was beating up his wife,
17 right, or his girlfriend?
18 A. I don't know if it was while he was
19 beating up his girlfriend, but somewhere along
20 the line somebody thought --
21 Q. Well, that's what you write in here,
22 isn't it? Let's look.
23 "After she left he was angry and
24 wanted to file charges against a guy that struck
25 him in the face when he was assaulting Alysha."
1322
1 A. Okay. I won't argue with it.
2 Q. Now, let's back up a minute.
3 You say Alicia was in the car,
4 and he had assaulted her. Do you know what he
5 did to her?
6 A. No.
7 Q. Were you understanding this to mean a
8 physical assault of some kind?
9 A. Right.
10 Q. I mean, there's another definition of
11 assault where you have the apparent ability to
12 carry an act out and you don't, it's more of a
13 threat; right?
14 A. I understand.
15 Q. But this was a physical assault, in
16 your understanding?
17 A. I presume so.
18 Q. You didn't ask; right?
19 A. No.
20 Q. And that's why it says, "no details"?
21 A. Well, she didn't want to talk about the
22 assault.
23 Q. And did you ask him?
24 A. No, I didn't. I kept him away.
25 Q. Well, you kept him away.
1323
1 Well, he took off, right, when
2 you first got there?
3 A. Yeah. When we first got there, he was
4 gone.
5 Q. So she was driving. She said, "I want
6 to get the kids and go."
7 You said, "That's a good idea.
8 Go."
9 So that's a reason for not asking
10 her what had happened; right?
11 A. Was what again?
12 Q. Well, because you said she wanted to
13 go, get away?
14 A. Yes, I thought that was a good idea.
15 Q. Do you know where she was going?
16 A. She went with a friend, and anywhere
17 out of there I thought was good.
18 Q. Did you try to track her down later and
19 try to find out what had happened to instigate
20 this domestic violence call?
21 A. No, I didn't.
22 Q. And so Chris drove back; right?
23 A. Yeah, he came back.
24 Q. After she -- or as she was leaving, he
25 came back?
1324
1 A. Right.
2 Q. And you kept him away from her?
3 A. Yes.
4 Q. And then you talked to him a little
5 bit?
6 A. Yes.
7 Q. And you didn't ask him what had
8 transpired earlier?
9 A. No.
10 Q. About the assault, I mean?
11 A. Correct.
12 Q. And you knew he had a history of
13 abusing her; right?
14 A. I had heard that deputies had been
15 responding there, and I also heard complaints
16 one night from neighbors, that they thought he
17 was abusive to her.
18 Q. And you said there were six or seven
19 people running around; right?
20 A. That would be my guess.
21 Q. Did you ask any of them what happened?
22 A. No.
23 Q. You say that, "he seemed more 10-200,"
24 and I've learned that means some kind of drug
25 use; right?
1325
1 A. Right.
2 Q. Or under the influence of drugs?
3 A. That was my assessment, I mean, but,
4 yeah, I thought maybe there had been some drugs
5 involved there.
6 Q. And Alicia's affidavit that we've seen
7 now, she said, no, he was just drinking.
8 A. Said he was drinking.
9 Q. But you saw him driving; right?
10 A. Yes.
11 Q. You didn't follow up on a possible OWI
12 at that point, did you?
13 A. I did not.
14 Q. And you said that you didn't let him
15 drive --
16 A. No.
17 Q. -- while you were there?
18 A. Right.
19 Q. But you left; right?
20 A. After a while, yeah.
21 Q. You didn't stay there all night until
22 he sobered up?
23 A. No, I wasn't going to stay there all
24 night.
25 Q. And you said, again, because Alicia was
1326
1 reluctant, you didn't arrest Chris at this
2 point?
3 A. Right.
4 MS. VALENTINE: Was that the 15
5 minutes needed to cover that issue?
6 MS. PENICK: Yes. If you'll
7 allow me to, I was going to go through with him,
8 but I'll just alert some points in the record
9 for the commissioners to note some articles that
10 Officer -- that former Sergeant -- I don't know
11 what your title was at the time, so that
12 Sergeant Ruby wrote back at different phases in
13 his career regarding domestic abuse and the
14 importance of handling them properly.
15 Q. And we've got the Fort Dodge Messenger
16 article. It's Exhibit 5, page 287, and I assume
17 you'll agree with me that you wrote, "Let's not
18 think about what the victim did to bring about
19 the abuse. We have to think about what the
20 perpetrator did to set up the victim"; right?
21 A. Yes, that sounds familiar.
22 Q. And it is very evident who the victim
23 is in many cases?
24 A. I'm sorry, say again.
25 Q. You wrote that it's very evident who
1327
1 the victim is in most cases; right?
2 A. It's very --
3 Q. Evident who the victim is.
4 A. Who the victim, yes.
5 Q. I mean, part of the new mandatory law
6 says you've got to arrest the primary aggressor;
7 right?
8 A. Right.
9 Q. So that helps protect victims who are
10 fighting back; right?
11 A. Yes.
12 Q. And I think it's usually in the
13 context -- you said it's usually pretty easy to
14 tell who the victim is in most cases?
15 A. In most cases.
16 Q. Sure.
17 And pages 298 and 299 is a quote
18 that, "If we misunderstand the victim...and
19 respond in a negative way, we are revictimizing
20 them. We create new injuries and ruin any
21 healing that could have begun."
22 A. Sounds familiar.
23 Q. "If we do a bad job with the victim, it
24 doesn't matter whether we give them cards or
25 referrals or anything else. They're probably
1328
1 not going to go because we've shut them down,
2 and also shuts down our investigation. It ruins
3 everything."
4 Is that something that you wrote?
5 A. I'm sure it is if you're reading out of
6 something I wrote.
7 Q. Yes, pages 298 and 299.
8 You wrote, "Domestic abuse is not
9 a private matter. It's a very dangerous crime,
10 and it's going to continue to get worse if
11 there's no intervention"; right?
12 A. Right, I'm sure I did.
13 MS. PENICK: I'll give up my 15
14 minutes. I'm finished.
15 MS. VALENTINE: Wonderful.
16 MS. CONLIN: Two questions.
17 MS. VALENTINE: You get two.
18 MS. CONLIN: Yes.
19 REDIRECT EXAMINATION
20 BY MS. CONLIN:
21 Q. Because of your compulsive
22 truth-telling, you have acknowledged that some
23 of your conduct could have resulted in
24 discipline; correct?
25 A. It could have.
1329
1 Q. Would every member of the department
2 likely have some violations of those general
3 orders over the course of a career?
4 A. I think -- I think we all have not
5 known all these. We've all violated these at
6 some point from top to bottom.
7 Q. Last night when we got this big group
8 of documents from the Fort Dodge Police
9 Department that were your records, we discussed
10 the verbal warning and being sent home.
11 Is it correct that those were
12 simply things that happened, you know, decades
13 ago, and you just didn't remember those very
14 mild occasions?
15 A. I didn't recall these until you
16 reminded me that -- I was surprised there was
17 documentation on it, actually.
18 MS. CONLIN: All right. That's
19 all.
20 MS. VALENTINE: Okay.
21 MS. CONLIN: But I do have
22 housekeeping.
23 MS. VALENTINE: Do we need to do
24 this on the record, housekeeping?
25 MS. CONLIN: Yes.
1330
1 MS. VALENTINE: Housekeeping, and
2 I want to tell the parties that what I do not
3 have offered and/or admitted --
4 MS. CONLIN: Wait, wait, wait, if
5 you would, while I offer those that I want to
6 offer from the list.
7 MS. VALENTINE: Okay. How about
8 that?
9 MS. CONLIN: I would offer
10 Exhibit 9.
11 MS. VALENTINE: Objection?
12 MS. PENICK: I'm going to say no.
13 MS. VALENTINE: Attendance
14 sheets. That's a great answer. They're going
15 to be received.
16 MS. CONLIN: 12.
17 MS. VALENTINE: Any objection?
18 It's his resume as a police officer.
19 MS. PENICK: No.
20 MS. VALENTINE: Okay, received.
21 MS. CONLIN: 13?
22 MS. PENICK: No objection.
23 MS. VALENTINE: Received.
24 MS. CONLIN: 30, Ruggles' daily
25 activity logs. Maybe I did offer those.
1331
1 MS. VALENTINE: Yes.
2 Objection?
3 MS. PENICK: No.
4 MS. VALENTINE: Received.
5 MS. CONLIN: 36. What is it?
6 MS. VALENTINE: I don't believe I
7 know what Exhibit 36 is.
8 MS. CONLIN: Here we go, here we
9 go.
10 CRYSTAL BAILEY: It's the stuff
11 we got yesterday.
12 MS. CONLIN: I will tell you
13 what 36 is. It's what you gave Bridget in
14 response to her subpoena to you dated
15 August 24th -- I don't know -- the first of
16 which is August 24th of 2002, and the relevancy
17 of that is not directed with her, but rather to
18 Chief Deputy O'Brien. It shows that on the
19 6-27-98 exam report results, he is listed last,
20 and then there is a letter that indicates that
21 he did, in fact, fail the examination, and he
22 was removed from the Civil Service list.
23 MS. VALENTINE: Objection?
24 MS. PENICK: I'm sorry, I didn't
25 hear.
1332
1 MS. CONLIN: Removed.
2 MS. PENICK: That's the way it
3 was presented to us?
4 MS. CONLIN: Yes.
5 MS. PENICK: I have no problem
6 with that.
7 MS. VALENTINE: 36 is admitted.
8 MS. CONLIN: 537.
9 MS. VALENTINE: And 537 is --
10 MS. CONLIN: I don't know.
11 MS. VALENTINE: All right. It
12 will be a surprise for all of us then.
13 MS. CONLIN: Maybe I'll recognize
14 it. Oh, Bahr and Strait daily activity log for
15 August 24th, 2002.
16 MS. PENICK: I think it shows
17 it's 2-23-07.
18 MS. VALENTINE: It does, 2-23-07.
19 MS. PENICK: And no objection.
20 MS. VALENTINE: 537 is received
21 then.
22 MS. CONLIN: 536, do you have
23 that?
24 MS. VALENTINE: 536 is not in.
25 MS. CONLIN: Okay.
1333
1 We'd offer 536, which is -- Oh, I
2 don't need to offer that. You've got it already
3 in.
4 MS. VALENTINE: Okay.
5 MS. CONLIN: I also -- and 37,
6 did we get that?
7 MS. VALENTINE: 537 is in.
8 MS. CONLIN: Oh, I'm sorry, I'm
9 sorry. 37.
10 MS. VALENTINE: 37 is in.
11 MS. CONLIN: Okay, perfect. I've
12 got his stuff.
13 I want to alert the commission to
14 the fact -- Well, never mind. How is that?
15 MS. VALENTINE: Okay.
16 And I just want to be clear. I'm
17 not urging more stuff, but I do not show
18 Exhibit 21 and 22.
19 MS. CONLIN: No. I have
20 withdrawn those --
21 MS. VALENTINE: Okay.
22 MS. CONLIN: -- because I wasn't
23 sure that you wanted to look at 6 hours of tape.
24 MS. VALENTINE: And that's
25 appreciated.
1334
1 And in terms of your exhibits, we
2 have A through Z, AA through DD, GG through KK
3 and MM, although I'm not sure you actually
4 offered KK. That's circled, so I don't think
5 you officially offered KK.
6 MS. PENICK: I would offer KK.
7 MS. VALENTINE: Is there any
8 objection to KK?
9 MS. CONLIN: I don't know what it
10 is.
11 MS. VALENTINE: It's the 12-24
12 grievance.
13 MS. CONLIN: No objection.
14 MS. VALENTINE: It will be
15 admitted.
16 MS. PENICK: I have one more that
17 I mentioned, but I forgot to offer. It's the
18 advocacy.
19 MS. VALENTINE: And the exhibit
20 number?
21 MS. PENICK: I'm sorry, EE.
22 MS. CONLIN: No objection.
23 MS. VALENTINE: EE will be
24 admitted.
25 So in terms of gaps for you,
1335
1 Ms. Penick, I don't have an FF or an LL, would
2 that be correct?
3 MS. PENICK: That's correct.
4 MS. VALENTINE: All right.
5 MS. CONLIN: And I reserve the
6 right -- I think I did this on the record -- to
7 respond by way of affidavit to the
8 cross-examination.
9 MS. VALENTINE: That would be
10 fine.
11 Anything else we need to take
12 care of on the record?
13 MS. CONLIN: No.
14 MS. VALENTINE: Ms. Penick?
15 MS. PENICK: No.
16 MS. VALENTINE: Okay.
17 Then just before closing the
18 record, I want to compliment both counsel on the
19 record. Both parties should know they were
20 very, very competently represented by their
21 counsel, and the commission appreciates that.
22 MS. CONLIN: Thank you.
23 MS. VALENTINE: Thank you.
24 Close the record.
25 (Hearing adjourned at 12:30 p.m.)
1336
1 (UNLESS OTHERWISE DIRECTED BY
2 COUNSEL OR THE PARTIES HERETO, THE STENOGRAPHIC
3 NOTES FOR THE FOREGOING HEARING SHALL BE
4 DESTROYED AFTER A PERIOD OF 3 YEARS FROM THE
5 DATE OF TAKING OF SAID HEARING.)
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1337
1 C E R T I F I C A T E
2
I, the undersigned, a Certified Shorthand
3 Reporter and Notary Public of the State of Iowa,
do hereby certify that I acted as the Certified
4 Shorthand Reporter in the foregoing matter at
the time and place indicated herein; that I took
5 in shorthand the proceedings had at said time
and place; that said shorthand notes were
6 reduced to print under my supervision and
direction by means of computer-aided
7 transcription, and that the foregoing pages are
a full and correct transcript of the shorthand
8 notes so taken.
9 I further certify that I am neither
attorney nor counsel for, or related to or
10 employed by any of the parties in the foregoing
matter, and further that I am not a relative or
11 employee of any attorney or counsel employed by
the parties hereto, or financially interested in
12 the action.
13 IN WITNESS WHEREOF, I have hereunto set my
hand and seal this 27th day of March, 2008.
14
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____________________________
16 CERTIFIED SHORTHAND REPORTER
and NOTARY PUBLIC
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