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Sander v. City of Dickinson

United States District Court, D. North Dakota

August 17, 2017

Thomas Sander, Plaintiff,
The City of Dickinson, North Dakota, Kylan Klauzer, Jeremy Moser, Terry Oestreich, and Does 1-10, Defendants.



         In this action, plaintiff sues the City of Dickinson and several of its current or former police detectives for a variety of claims arising out of their having caused him to be arrested and charged with arson of a local Catholic high school of which he was the principal. Before the court now is plaintiff's motion to compel discovery of information, documents, and tangible items that defendants contend are protected from disclosure by the investigative privilege and also are not relevant. (Doc. No. 57). While plaintiff's motion could have been more clear, the court construes it as seeking to compel: (1) the disclosure of those documents withheld from discovery on the grounds of investigative privilege as identified in the City's privilege log; and (2) further deposition testimony from defendants Klauzer and Oestreich with respect to the City's investigation after the date of the dismissal of the charges against plaintiff that was foreclosed by instructions not to answer on grounds of investigatory privilege by defendants' counsel as set forth in the excerpts of the depositions attached to the motion.

         I. BACKGROUND

         What follows is some background with respect to the fire, the defendants' investigation leading up to the charging of the plaintiff, the dismissal of the charges without prejudice, and the continuing investigation. Along the way the court will make observations that are relevant to the factors it is required to consider in evaluating the claim of investigative privilege. Most will relate to the court's ultimate conclusions: (1) that a combination of events beyond the control of prosecuting authorities, the passage of time, and the City's mishandling of the investigation together make it unlikely that there will be any future criminal prosecution, absent someone now coming forward and confessing; and (2) that plaintiff's case is not frivolous, even if it turns out to be legally insufficient.

         Also, it is worth noting that, with respect to the “facts, ” there is much that cannot be taken as established because of differing accounts given by those with knowledge and, as discussed in more detail later, confessions by two persons (each claiming to have been the arsonist) both of which were later recanted. Also, at critical points, the only information that is available comes from single sources whose motivations to tell the truth are subject to question.

         A. The fire

         The fire started in the vault of the school's main office during or around the early morning hours of March 3, 2014. According to an investigation conducted by the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) and relevant to what comes later, the fire started just outside three file cabinets located along the rear wall of the vault, but not inside any of the file cabinets given the state of their contents following the fire. (Doc. No. 65-11, pp. 35-39, 61). Further, the ATF concluded that school's alarm was triggered by the breaking of the glass and the pulling of the alarm at one of the pull-stations (most likely by the arsonist) and not be one of the smoke detectors. (Id. at pp. 54-55, 58). Notably, the school's alarm system, which was ancient, was not connected to the fire department.

         Why would the arsonist set off the alarm, if it was the arsonist? One reason may be that the arsonist was aware there was a person living in the school and wanted to insure the person was not hurt. Another might be to insure that the damage was limited to consuming what was set on fire in the vault and not the entire school. Notably, if it was only the latter, that might suggest the arsonist was unaware that the school's fire alarm was not connected fire department, which might lessen the possibility the arsonist was certain suspects, including the plaintiff.

         B. The accounts of those with the most immediate knowledge

         1. Richard Storey's account

         The person who professes to first have knowledge of there being a problem at the school is Richard Storey. Storey, who was then one of the school's teachers, lived in an apartment in an upper floor of the school building. He was in the building when the fire started.

         Storey was interviewed by police several times following the fire. The general thrust of what he recounted was as follows. He was awakened between 12:15 and 12:30 a.m. on March 3, 2014 (which was a Monday morning) by the school's fire alarm going off but did not see or smell any smoke at that time. He got dressed, went outside to await emergency personnel, and after five minutes or so when no one arrived, went back inside because he was cold and attempted to call the plaintiff, who, as noted above, was the school's principal. When plaintiff did not answer, he then called Rich Holgard, with whom plaintiff was living. Holgard told him he could come over to his residence, which was just across the street from the school, to stay while things sorted themselves out. According to Storey, his cell phone log showed the calls to plaintiff and Storey were at 12:53 and 12:54 a.m., respectively. Storey then proceeded to the Holgard residence and, after he arrived there, he and Holgard decided to awaken plaintiff after they concluded the school's alarm system was not linked to the fire department. (Doc. No. 53-1, pp. 5, 7, 9, 15-16).

         Storey further recounted that, after plaintiff was awakened, he and plaintiff proceeded to the school where upon entry they could smell smoke. They then divided up. Plaintiff proceeded to his office to check the alarm panel while he (Storey) went to inspect the cafeteria and the garage. When he (Storey) found nothing and proceeded to the office, he observed plaintiff manipulating the lock on the vault and then opening it. At that point, smoke streamed from the vault but no flames were seen. There ensued some discussion about whether or not to use the fire extinguisher with the decision being not to. Storey then recounted that he exited the school while plaintiff went to his office to call 911. Plaintiff then came out of the building but went back in briefly to retrieve his laptop from his office. (Id.).

         Storey recounted he had been out earlier on the evening of March 2 and had returned to the school about 8:30 p.m. He observed plaintiff was working in his office, which he said was a common occurrence and that it was not unusual for plaintiff to work late. Storey claims he went to bed about 9:30 p.m. and remained there until he was awoken by the alarm. (Id.).

         Notably, the only evidence of what Storey did or did not do up until he made his phone calls to plaintiff and Holgard comes from him. There is no one to corroborate his account, and, as pointed out by plaintiff's expert in this case, Storey voluntarily submitted to a re-interview in October 2014, which was after criminal charges had been brought and dismissed against plaintiff. There is some information that Storey was deceptive and that, when confronted with that fact, he invoked his right to counsel. (Doc. Nos. 57-7; 97).

         Storey and plaintiff both described there relationship as being friends. (Doc. No. 53-1, p. 9; 53-8, p. 25). However, there is some evidence that plaintiff had told Storey that his performance needed to improve or he might not be renewed for the next year if he did not. (Tr. 53-1, p. 38). Monsignor Schumacher (the Vice-President of the local Catholic school system with responsibility for the high school) later told investigators that Storey was young, inexperienced, and not the most effective teacher. Storey departed of his own volition at the end of the school year. (Doc. No. 89-1, p. 12).

         2. Plaintiff's initial account at the scene and the note in the laptop

         Plaintiff, who is single, acknowledged when questioned during the early morning hours of March 3 that he was working at the school late the evening prior, stating that he often did so. He said he left the building at 11:50 p.m., and was fairly certain about the time having minutes before sent an e-mail to staff and observed the time on one of the school's clocks as he was leaving. He stated he had been in the vault earlier that evening to get office supplies and that, while he thought he had locked it, he could be mistaken. He indicated that there were a handful of individuals who had the combination for the vault and that it was possible to access the office area where the vault was located even if the office doors were locked. (Doc. No. 5-6, 7-8).

         Plaintiff reported that there was nothing unusual when he left the office. When asked whether there was anyone else in the school that evening other than Storey, he stated that the Athletic Director, Andrew DesRosier, had been in the office for a short period of time at about 10:30 p.m. to make copies for an upcoming girls basketball tournament. Plaintiff said this was somewhat unusual for DesRosier and that, while he saw DesRosier leave the office, he could not be sure DesRosier had left the building. (Id.).[1]

         Plaintiff stated that, upon leaving the school, he went directly to the nearby Holgard residence where he was staying and went to sleep. Plaintiff's account of being wakened by Holgard, going to the school with Storey, and then discovering the fire more or less matched Storey's account. The officer at the scene who talked to plaintiff concluded in his report that plaintiff appeared to be anxious and somewhat evasive. (Id.). There is other evidence, however, that plaintiff was socially awkward, often uncomfortable in personal settings, and had trouble looking people in the eye. (Doc. Nos. 53-1, p. 15; 81-9, p. 7).

         Plaintiff then sat with three others in a vehicle watching the fire department work. Plaintiff stated that, while sitting in the vehicle, he opened the top to his laptop and found a blue-colored sticky note with the words, “ I will bring this school to its knees.” Plaintiff immediately turned this over to the officer on the scene given that it might be evidence that the fire had been deliberately set. (Doc. No. 53-1, pp. 5-6, 7-8).

         3. Richard Holgard's account

         Holgard was interviewed by the Dickinson police. He stated that Plaintiff arrived home about 11:30 p.m. and went to bed. He stated the call from Storey came at about 12:52. According to Holgard, Storey asked him to notify plaintiff, so plaintiff could come to the school, verify the situation, and reset the alarm. He said there was some discussion about the school for some time having false alarms. Holgard stated he woke Plaintiff up, that Plaintiff got dressed quickly, and that Plaintiff left immediately for the school. (Doc. No. 53-1, pp. 27-28).

         Notably, while Holgard had plaintiff arriving at his residence prior to plaintiff stating when he left the school, both of their accounts are consistent with plaintiff not being in the school after midnight when Storey first heard the alarm. This is a problem for any case against the plaintiff, particularly if it is assumed that the alarm went off because it was pulled (which is what the ATF concluded) and that it was pulled by the arsonist.

         C. The immediate focus upon plaintiff as the arsonist

         While there were other persons who potentially could have accessed the office as well as the vault (even if the vault had been locked prior to the fire, which is not a certainty), the City's detectives immediately focused upon plaintiff as being the perpetrator, believing he had both the means (he had been in the school close to the time when the fire started and had access to the vault) and what they believed to be motive. Defendants quickly learned that plaintiff had earlier been informed that his contract for the next school year was not being renewed. Further, they learned that the school's administration had scheduled an upcoming meeting with several students to consider a complaint made by a female student who found offensive the manner in which he had worn a pair of shorts over his trousers during a recent dress up event. (Doc. No. 53-1).

         With respect to the latter point, however, there is no evidence that plaintiff knew there was going to be an upcoming meeting about the incident. Further, school administration officials kept plaintiff on for the rest of the school year after advising his contract would not be renewed. Finally, there is evidence that plaintiff, while initially disappointed, had accepted his nonrenewal without any apparent bitterness or ill-will. (Doc. Nos. 53-1, pp. 5, 14-15; 53-8, p.19; 81-9, p. 8).

         D. The questioning of plaintiff on March 3 & 4 at the Combined Law Enforcement Center

         Plaintiff was questioned again by the one of the defendant investigators later in the day on March 3, 2014, at the combined Law Enforcement Center. During this interview, plaintiff stated he had nothing to do with the fire, recounting what he had stated earlier with some additional detail. Plaintiff was not detained at that time. (Doc. No. 58, video of interview).

         Following the March 3 questioning of plaintiff, one of the defendants called Asst. State's Attorney Hope and expressed concern that they may have made a mistake by not advising plaintiff of his Miranda rights during the May 3 station-house interview. Hope's advice was that plaintiff be advised of his full Miranda rights if he was brought back in questioning the next day. (Doc. Nos. 53-6, p. 26; 65-7, pp. 6-9).

         Plaintiff was called back for questioning the next day. There is no dispute that Hope's advice of fully advising plaintiff of his Miranda rights was not followed. Rather, at least one of the defendants made the decision to employ what he euphemistically referred to as a “soft-Miranda” caution, omitting the parts about plaintiff having the right to consult with an attorney and that, if he could not afford one, that an attorney would be appointed. (Doc. No. 53-3, pp.23-25).[2] After several hours of interrogation, which employed the use of highly questionable tactics (if not ultimately coercive when used collectively), plaintiff confessed and was held in custody. In addition to the use of only the “soft-Miranda, the tactics of the two officers interrogating him included:

• Repeatedly telling plaintiff that they had the goods on him and all they wanted to know was “why” he started the fire since it was no longer a question of “if, ” including telling plaintiff they had a “10-point handwriting match” to the note from the laptop, which was false, [3] and that they had video evidence implicating plaintiff, which also was false.[4] The actual truth was that they was no independent direct evidence - eyewitness, video, or forensic - that plaintiff had started the fire.
• Suggesting to plaintiff he likely would get nothing more than a slap on the wrist if he confessed (most likely probation with a requirement of restitution) but a long jail sentence if he did not. This included suggestions that they would recommend this lenient treatment and that the prosecutors almost always followed their recommendations.
• Suggesting to plaintiff that, if he came clean, he likely would be allowed to go home for the present, but he was facing immediate incarceration if he did not.
• Refusing to allow plaintiff to leave the interrogation room on more than one occasion as well as twice denying him the use of a bathroom after he requested he be allowed to do so.
• Interrogating plaintiff in what arguably was a physically threatening manner by positioning plaintiff in the corner of the small interview room and then pulling their chairs up close to him.

(Doc. Nos. 58, video of interview; 65-9, transcript of interview).[5]

         Plaintiff ultimately confessed to having started the fire and continued to be detained despite the promise of the investigating officers that he would be let go if he did so. While it may ultimately be held in this case that the level of coercion was not enough to constitute a violation of plaintiff's constitutional rights - a point that is the subject of pending motions for summary judgment, plaintiff's claim of coercion is by no means frivolous.

         When plaintiff confessed, the City's investigators were convinced they had their man. However, what appeared to be a “lock solid” case against plaintiff, given the confession, almost immediately began to unravel.

         When investigators left the interview room, and before Plaintiff was taken to the jail, Plaintiff made a phone call in which he stated: (1) he had not started the fire but was concerned in light of what investigators were telling him that he could not prove he did not; and (2) that he confessed because he did not want to go jail that day, stating that this was what investigators had told him would happen if he did not confess, and that he did not want to later go to prison, which he understood from what investigators told him would not happen if confessed now. (Ex. 65-9, pp. 200-206).

         Also, there were several inconsistencies between his confession and what may be the actual facts, although the investigators may not have known that immediately. For one thing, plaintiff claimed he started the fire by using a match to light paper that was either inside the file cabinet or that he placed in the file cabinet and then closed the door of the file cabinet. This was consistent with his statements that he only wanted to burn up a few things and not everything in the vault as well as his professing that the fire was initially confined to inside the file cabinet when he returned later with Storey. (Doc. No. 53-1, p. 35; 65-9, pp. 46-47, 49). As noted earlier, however, ATF concluded the fire could not have started within the file cabinets given the state of their contents after the fire.

         Another problem with plaintiff's account was that not once did he say he pulled the alarm. One would think that this would be one of the first things that plaintiff would have mentioned in an attempt to minimize his actions, consistent with his claim that he intended that the fire would only burn up a few things, much less endanger Storey who he knew was likely in the building. In fact, one inference from the ...

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