Burgert jury gets case today

MISSOULA - A federal jury in Missoula is deciding whether Kalispell police violated David Burgert's civil rights by using excessive force when he was arrested on Nov. 27, 2001.

Before deliberation begins, the jury will hear closing statements today from Burgert and the attorneys representing the defendants.

He was charged with obstructing an officer and resisting arrest. During the arrest, he was pepper-sprayed; afterward, he spent about two minutes in a "spit hood" while the chemical was still on his face.

Burgert eventually was sentenced to prison on unrelated federal charges of being a felon in possession of illegal firearms, which he used in connection with a paramilitary group and during an overnight standoff with local SWAT teams in February 2002. He's serving his sentence at a federal medical prison in Minnesota.

He brought a multi-million-dollar lawsuit against a multitude of agencies he accused of abusing him. Some were dismissed previously, and the rest were argued during the trial this week.

Among the remaining claims were three against the city of Kalispell and two law-enforcement officers, and several involving jail employees and officials in Missoula, where Burgert was held during the federal proceedings.

Burgert wants the jury to award him $240,000 from officer Kevin McCarvel, $470,000 from police Chief Frank Garner, and $650,000 from the city of Kalispell, plus unspecified damages from each.

He says that McCarvel violated his Fourth Amendment right to be free from excessive force, and that Garner and the city violated their duty not to authorize excessive force.

There was no excessive force, the city argued, just a blast of pepper spray that was used according to policy to subdue someone who was not complying with an arrest.

On the day of the event, Burgert arrived on Sixth Street East to help two friends who were trying to serve civil papers on someone. Before Burgert's arrival, Kalispell police took a complaint from someone who said he was being stalked by the two men. Police stopped them to investigate.

Burgert's arrival concerned Sgt. Rick Parker, who had fought with Burgert when he arrested him for DUI. He knew that Burgert sometimes was armed, he testified Wednesday, and that Burgert was accused of assaulting a sheriff's deputy.

"I didn't want him, with his history, behind my back," Parker said.

He said he ordered Burgert to leave twice and received only profanity in return.

He said he called in officer McCarvel to deal with Burgert while Parker and another officer dealt with the process servers.

"If he doesn't leave, arrest him," Parker told McCarvel.

McCarvel testified that Burgert wouldn't leave on his command, either.

"I attempted to give Mr. Burgert the option to leave," McCarvel said.

When Burgert refused, McCarvel used his pepper spray - the lowest level of force he had.

Burgert was taken to the Police Department, where a video shows him spitting out the chemical and the body fluids it produced.

During booking, McCarvel asked Burgert whether he had anything sharp in his pockets that might hurt McCarvel as he patted down Burgert.

"I sincerely hope so," Burgert said.

Then, Burgert turned his head and spat again.

McCarvel said Burgert purposely spat in his face. Burgert said he was just continuing to clear the mucous from his nose.

Officers put Burgert in a device used on spitting prisoners.

Burgert said it was torture. Garner said it was necessary to protect his officers from body fluids that can carry disease.

Burgert said he was forced to sit with the pepper spray still saturating his face, rebreathing the chemical fumes inside the spit hood. Garner said Burgert was showered as soon as he calmed down.

Burgert said he suffered and continues to suffer from the experience.

McCarvel has never been accused of using excessive force before, Garner said.

Chief U.S. District Judge Donald Molloy dismissed several of Burgert's other claims Tuesday afternoon. On Wednesday morning, he also dismissed the claim against Flathead County sheriff's deputy Tom Snyder on the grounds that no reasonable jury would find in Burgert's favor.

Burgert claimed that Snyder filed a false report, accusing Burgert of striking him Jan. 2, 2001, during an altercation at Burgert's house. Burgert was charged with assaulting and obstructing an officer; those charges were dropped in a plea agreement when Burgert admitted bail jumping later.

"I didn't file a false report," Snyder said after he was released from the suit. "The judge did the right thing."

Burgert had requested $55,000 for punitive and compensatory damages and an award for mental anguish, plus unspecified damages from Snyder.

Kalispell attorney Sean Goicoechea represented Snyder and Flathead County in other claims made by Burgert that were subsequently dismissed.

"This was very, very important for Tom," Goicoechea said. "This was a direct attack on Tom."

Goicoechea said it is difficult to balance "what most of us see as frivolous" litigation against the chance that there is a legitimate claim for damages. In this case, the allegations were "absolutely not true," he said.

Burgert told him he plans to appeal.

Burgert was the leader of a group that trained in the woods with machine guns. They were accused of planning to assassinate local leaders and law-enforcement officers. Six were convicted of federal crimes.

At a hearing for members of the group, known as Project 7, FBI agent Steve Liss said one of the members' wives said she was at a meeting at which Burgert said of local police, "Kill them all. Kill them all, even their wives and children."

A federal pre-sentence investigation on Burgert showed that he suffered from mental incapacity or duress, according to his lawyer. Psychiatric evaluations showed that he was under the delusion that law-enforcement officers were trying to kill him.

He reportedly has been treated for depression and delusional disorder of the "persecutory type," similar to paranoia, since he's been in custody.

Burgert represented himself at the trial.

McCarvel was represented by Angela Jacobs and Todd Hammer of Kalispell. Garner and the city of Kalispell were represented by James Vidal and James Ramlow of Kalispell.

Deputy County Attorney Michael Sehestedt of Missoula is defending the Missoula County defendants.