Judge urged to toss Project 7 leader's suit

By CHERY SABOL

The Daily Inter Lake

Convicted felon David Burgert did not attend a hearing Tuesday on his lawsuit against Flathead County, Sheriff Jim Dupont and Kalispell police Chief Frank Garner.

He is in a federal medical/detention center in Minnesota, serving a sentence for federal weapons violations. He was arrested after a standoff in February 2002 with local SWAT teams and was later called the leader of an "anti-government militia, known as Project 7," according to court documents.

He has filed multimillion-dollar lawsuits against local, state, and federal officials. He has been diagnosed as having a paranoia disorder, according to court documents.

Earlier this year, a federal jury in Missoula found no merit in one of Burgert's suits, alleging officials violated his civil rights.

On Tuesday, District Judge Ted Lympus heard from attorneys who want him to find that Burgert's lawsuit in his court also has no merit.

Many of the original counts in this case have been dismissed. Remaining are three counts alleging: theft and violations of the Montana Constitution; libel, slander and defamation; and theft of his jacket and pants.

Burgert was arrested in February 2002 after an overnight, armed standoff with police. It ended when he threatened to kill himself and was taken into custody. Except for the machine gun Burgert carried, his possessions were given to his wife the next day, according to a court document.

In the days before Burgert's arrest, FBI agents and others searched a home and camper trailer at 839 Smith Lake Road and seized weapons, massive amounts of ammunition, explosives, survival gear and other items listed on a search warrant, according to a motion filed in September.

The home and trailer were owned by a woman named Tracy Brockway, who was arrested after fleeing with Burgert from law enforcement.

Officers also searched and seized another trailer belonging to Michael Heit at 940 Kienas Road. It contained food, survival items, a fully automatic machine gun, weapons, ammunitions, explosives, and other items, according to the motion by Kalispell attorney Sean Goicoechea. He is defending the county in Burgert's suit.

Officials also seized items that were abandoned on U.S. Forest Service property near Olney. The camp there and items were suspected to be used by members of Project 7. Property included survival items, shotgun shell booby traps, flares, trip wires, knives and hatchets, Goicoechea wrote.

All of the retrieved items were retained by the Sheriff's Office. Some were later transferred to the custody of federal officials who prosecuted several Project 7 members, including Burgert, for weapons violations. With the exception of one or two items, the property was never claimed by anyone. Burgert's wife was allowed to retrieve a chainsaw that was taken from the camp near Olney, Goicoechea wrote.

"Presumably, none of the involved people, including Burgert, claimed ownership of any of the items because they did not want to implicate themselves relating to charges involving illegal weapons, bombs, and Project 7," his motion says.

The property was stored by the Sheriff's Office until July of 2004, when District Judge Stewart Stadler ordered the office to dispose of the items. Some firearms, ammunition and other items were kept because the Sheriff's Office was unable to properly and safely discard them, Goicoechea said.

Goicoechea asks Lympus for summary judgment, dismissing all of the allegations Burgert has made.

Burgert didn't own any of the property, Goicoechea said, and so has no standing to sue for it.

The county has some immunity from suit for complying with a judge's order to destroy the property two years after it was seized and no one claimed ownership of it, Goicoechea said. The county had paid several hundred dollars to store the items, he said.

Citing the "doctrine of laches," Goicoechea asserts that Burgert waited unreasonably long to try to claim the property.

He "now asserts a right which he was not willing to assert earlier for fear of implicating himself in criminal activity."

Goicoechea also writes that Burgert's claims are precluded by the public duty doctrine that holds that officials do not owe a duty to specific members of the public, but only to the public as a whole.

Also, the property seized at the hideout near Olney had been abandoned on public property, so even if it did belong to Burgert, he relinquished his rights to it, Goicoechea wrote. Burgert amended his original suit to claim that property, but he did so after the statute of limitations ran out, according to Goicoechea's response.

Burgert also has no basis to sue Sheriff Jim Dupont for defamation, Goicoechea wrote.

Montana's defamation law has existed since 1895, containing such arcane language as imputing to someone "impotence or want of chastity" or a "loathsome disease."

Goicoechea wrote that Dupont did nothing that could be considered slanderous under the law.

"If anything, Dupont was acting in the scope of his official duty by providing information to the public through the media about the evidence and arrest of Burgert," Goicoechea asserts.

Dupont's description of Burgert as someone "who is a member of certain groups, possesses various weapons and may or may not have a list of people to kill" might portray a bad image of Burgert, but doesn't rise to the level of slander, Goicoechea said. Dupont's statements were at most, statements of opinion, he said.

Burgert has not responded to Goicoechea's motion for summary judgment. Goicoechea said he hopes that Lympus will rule quickly on the request.

Goicoechea defended the county when Burgert sued for $7 million in damages he claimed he suffered from the Kalispell Police Department and the City of Kalispell, Flathead County Sheriff's Office deputy Tom Snyder and Missoula County officials and jail employees.

He claimed police used excessive force by pepper-spraying him during a 2001 arrest, that he was injured while a prisoner in the Missoula County jail, and other violations.

A jury found that Burgert had suffered no damages.

Reporter Chery Sabol may be reached at 758-4441 or by e-mail at csabol@dailyinterlake.com.