Cops forced man into cold, joked

Talk about it

On the February night Jason Hickman was forced to stand in subzero weather during a traffic stop in Grand Forks, two officers sitting in squad cars parked nearby exchanged jokey messages about the incident, according to a state investigator.

“That’s right, make him freeze,” went one message. “Yep … that boy has earned it over the years here,” was the reply. They even made a lighthearted prediction that the incident could result in a lawsuit.

The investigator, Arnie Rummel with the state Bureau of Criminal Investigation, took the stand Tuesday, the first day in the trial of David O’Toole, a Grand Forks officer charged with reckless endangerment in connection with the incident that left Hickman’s ears frostbitten.

O’Toole’s attorney, Michael Geiermann, said his client may have used poor judgment, but that he did not commit a crime. Geiermann, a Bismarck attorney who works for the North Dakota Fraternal Order of Police, said O’Toole was following the orders of another officer when he made Hickman stand outside.

“He didn’t create this situation,” Geiermann said. “Eric Straus did.”

Straus, who resigned from the department in August, was also charged with reckless endangerment for his role in the stop. Straus struck a deal with the prosecution and pleaded guilty last week to a lesser charge of disorderly conduct. He was sentenced to a year of unsupervised probation and 20 hours of community service.

Assistant State’s Attorney Jason McCarthy, in his opening statement, said O’Toole put Hickman, 25, at risk of injury and acted recklessly during the stop that occurred when the wind chill was reportedly 42 below.

“This case really boils down to police officers going too far, and unfortunately, as you will see, that led to a citizen of our community getting hurt,” McCarthy said. “What we’re left with is really one fact: Mr. Hickman was left to stand outside.”

Geiermann argued that O’Toole had a “miniscule part” in handling the stop and a subsequent arrest and search. He said Straus was responsible for Hickman, not O’Toole, who was the third officer to arrive at the scene of the traffic stop.

The charge of reckless endangerment is defined as “willfully creating substantial risk of serious bodily injury or death to another,” according to court documents. In this case, it’s a Class A misdemeanor, which carries a maximum penalty of a year in jail and a $2,000 fine.

As a result of the incident, O’Toole, 32, has already been demoted from master officer to officer, suspended for 60 days without pay and required to spend a year on departmental probation.

The traffic stop

Hickman told the jury he and his co-worker, Ricky Karel, were headed to Hardee’s on South Columbia Road just after midnight, Feb. 10, during their half-hour break from LM Glasfiber. Speeding to get food and get back to work, Karel got pulled over by Officer Brian Cofer near Century Elementary School.

Cofer, who testified Tuesday, said he learned that Karel had an outstanding warrant and consequently called Straus for backup. Cofer got Karel out of his pickup, patted him down, handcuffed him and put him in the back of his squad car.

Cofer said he asked Straus to place Hickman in Straus’ squad car, so he could search the pickup. After completing the search, which turned up nothing, Cofer said he saw Hickman standing outside.

“At that time, I believed Mr. Hickman had been in a car and was only outside because I had finished the search,” he said.

He did not know Hickman had been made to stand outside while he searched the pickup, he said, and didn’t become aware of it until after that night.

Cofer said he was put on administrative leave following the incident, but was not disciplined.

Hickman told jurors O’Toole was on the scene as he was standing outside. He said at one point O’Toole was about to get out of his car, but Straus stopped him. Hickman said Straus told O’Toole “to get back in his f---ing car because he’s going to stand outside,” referring to Hickman.

Hickman said he motioned to O’Toole and Straus, asking if he could get inside either car, but both refused.

He said that night he was wearing jeans with holes in them, a long-sleeve T-shirt, work boots and not much else. Trying to stay warm, he turned his back to the wind and curled his shoulders inward.

“My eyes were tearing up,” he said. “But the tears basically turned to ice.”

Hickman testified he was outside for between 20 and 30 minutes. But Cofer said it took only about seven minutes to search Karel’s pickup. McCarthy referenced a chart that said frostbite can occur in five minutes when the wind chill is 42 below.

Karel and Hickman were eventually allowed to go back to work after it was discovered that Karel’s warrant was not valid.

Karel, who also testified, said his co-worker was “shaking, chattering pretty bad” after standing in the cold.

Hickman said he was in extreme pain when he got back to work and used a “heat gun,” a device much like blow dryer, to warm himself. When his shift ended he said he went to the hospital where a doctor treated his red, blistered ears. That doctor is expected to testify today along with O’Toole and Straus.

‘Make him freeze’

Rummel, who was called in to investigate the incident after Hickman filed a complaint with the department, told jurors about interviews he conducted with Straus and O’Toole.

Rummel said O’Toole told him he did not let Hickman inside his car because he had not been searched, as police procedure requires, and that he was ordered by Straus not to.

He read computer messages that Straus and O’Toole exchanged while Hickman stood outside:

O’Toole: “That’s right, make him freeze.”

Straus: “Yep … that boy has earned it over the years here.”

Then later:

O’Toole: “That’s an unlawful arrest.”

Straus: “Yeah … in search, Hickman got cold for nothing.”

O’Toole: “Lawsuit.”

Straus: “Maybe, but not from upstanding citizens like that.”

O’Toole: “LOL (laugh out loud) … that’s true.”

Rummel said O’Toole expressed regret over sending the messages and described the “freeze” comment as a joke.

“He said it was stupid and hopes it doesn’t burn him,” Rummel said.

Clapp said attorneys anticipate the trial will be end today or Thursday at the latest. The trial is set to resume at 8:45 a.m. today.

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