Deputy Balenger incident files released

After a nine-month paid leave that began on Oct. 3, during which $44,849.54 in public funds were used to pay for the salary of Mineral County Deputy Jim Balenger as well as insurance, taxes and other costs and Montana Department of Criminal Investigations Agent Kevin McCarvel conducted an investigation at the request of County Attorney Marcia Boris, Dept. Balenger returned to active duty.

Dept. Jim Balenger was placed on paid leave following an incident at the Mineral County Detention Center with then inmate D.J. Bass Sept. 20 that resulted in allegations of excessive force. When contacted for comment, Mineral County Sheriff Ernie Ornelas said his office would prepare an official statement to be given at a later date. Dept. Balenger could not be reached when efforts were made Monday to contact him.

In a judge’s ruling on Mineral County v. Mineral Independent, et al., it was decided the publics right to be informed of the details of the investigation outweighed any rights to personal privacy by the parties involved - making the findings of Agent McCarvel’s investigation available to the public.

“At the time of the incident, Bass’s extremities were fully restrained in the restraint chair and he was being further restrained by Deputy Tony Lapisnki, who was holding him in a headlock, and you struck Bass in abdomen or chest and then ‘drive stunned’ him with your Taser,” a written formal reprimand from Mineral County Sheriff Ornelas reads.

According to the investigative report compiled by Agent McCarvel, as well as video from closed-circuit cameras in the detention center, on Sept. 20 at approximately 6:56 pm, Bass is seen using condiments to write profanities on the wall of his cell, throwing food and kicking the window on the cell door. Bass, who had a history of “disruptive incidents” while incarcerated in the county detention center, then uses paper to cover the surveillance camera in his cell.

During this time, MCSO Detention Officer Keith Miles “made attempts to calm Bass” and have him “comply with the detention center’s rules.” Unsuccessful in his attempts Officer Miles then requested assistance.

Dept. Balenger arrived at approximately 7:06 pm and is seen walking towards Bass’ cell.

At approximately 7:09 pm, Deputy Tony Lapinski enters the booking area of the jail and meets with Dept. Balenger. Two minutes later Dept. Balenger opens the door to the jail cell.

Around 7:11 pm Deputies Balenger and Lapinski are seen exiting the jail cell escorting Bass, who “appears to be handcuffed, with his wrists/hands behind his back.”

“While Deputies Balenger and Lapinski are escorting Bass to the restraint chair in the booking area, Bass does not appear to be engaged in any resistant behavior,” Agent McCarvel’s summary of the incident states.

Bass is seated in the restraining chair and at approximately 7:12 pm he “appears to be moving around/squirming in the chair.” Shortly after this, Deputy Lapinski places Bass into a head restraint by “placing his left arm around Bass’s neck and moving to the rear of Bass.”

Shortly after Officer Miles secures Bass’s left and right ankles, Dept. Balenger is seen pulling Bass forward and down.

“It appears that Bass is bent forward/over and his head is positioned near his knees,” Agent McCarvel’s summary states. “Bass does not appear to be making any attempts to stand. Deputy Balenger is positioned in front of and to the right of Bass. Deputy Lapinski is positioned behind and to the right of Bass and the restraint chair. Officer Miles is positioned to the left of Bass and appears to be releasing the handcuffs from behind Bass’s back.”

Once Officer Miles successfully removes the handcuffs he begins to restrain Bass’s left and right wrists to the chair.

After Bass’s right wrist is successfully restrained, Bass “appears to make an attempt at standing/rears back in the chair.”

At approximately 7:14 Dept. Balenger “delivers a strike to Bass” with his right hand while holding Bass with his left. After striking Bass, Dept. Balenger is seen removing his Taser ECD from his belt. Seconds later, Dept. Balenger activates the Taser and uses it on Bass.

Dept. Lapinski is still behind Bass and “appears to be maintaining a ‘head-lock.’” Officer Miles moved several feet away from the restraining chair.

When fired, the Taser ECD begins to record video and from that video a verbal exchange can be heard between Bass and Dept. Balenger:

Dept. Balenger: “You want to do it again?”

Bass: “No I don’t. This is not necessary.”

Dept. Balenger: “No it’s not, but you started this (expletive deleted).”

Bass: “I was sleeping.”

Unknown: “…buckin’ and kickin’.”

Bass: “I’m not going to (expletive deleted) with you guys. I don’t need to get tased again.”

Dept. Balenger: “I’m tired of your (expletive deleted).”

Bass: “I was sleeping.”

Dept. Balenger: “Yeah, and you don’t lie either.”

…

Over the course of his investigation, Agent McCarvel interviewed six people with a range of involvement in the incident – including Dept. Balenger and Bass as well as Dept. Lapinski, Officer Miles, Detention Center Supervisor Jason Bagby, and MCSO Communications Officer Patti Curtin.

In his interview with Dept. Balenger, Agent McCarvel asked to be provided with a statement on “how this all transpired as far as your involvement and how it came to be.”

“…but he wasn’t completely restrained in the chair and DJ was getting agitated and he stood up real quick and tried to head butt Dept. Lapinski and from what I understand he tried to head butt me too,” Dept. Balenger said. “I gave him what’s called a palm thrust which is a push to push him back down into the chair and he was so upset and non-compliant that he just kind of stood there and at that point Dept. Lapinski reached around and put him in a head lock and he was still fighting Dept. Lapinski. I pulled my Taser, dropped the cartridge and drive stunned him into the stomach area.”

When asked by Agent McCarvel if his use of force was justified, Dept. Balenger replied “yes I do.” In a follow-up question, Agent McCarvel asks Dept. Balenger if Bass was a threat at the point of the incident.

“He was very much a threat,” Dept. Balenger answered.

In his interview with Bass, Agent McCarvel confirms that Bass had been in the restraining chair prior to the incident on Sept. 20 for what Bass called “causin’ ruckus, being loud.”

On the night of Sept. 20, Bass said that while being restrained in the chair Dept. Balenger “grabbed the back of my neck and forced me all the way down as far as I could go.”

Bass said that he “sat up” at which point Dept. Balenger “punched” him in the lower part of his stomach “with a closed fist.” Agent McCarvel then asked Bass to clarify how he sat up.

“I guess I kind of reared back, I mean not like trying to get at him or anything, not trying to get out of the chair or anything, I was just sittin’ up because he, like I said he had me pushed down so far,” Bass said.

…

After the investigation was completed, Montana Assistant Attorney General Brant Light gave his office’s opinion on the findings of the investigation.

“From those materials, it is clear that Deputies Balenger and Lapinski were dealing with a difficult inmate and that some force was appropriate to effectuate Bass’s placement in the restraining chair,” the letter reads. “However, the degree to which Dept. Balenger chose to apply force, first in striking Bass in the sternum, when Bass’s hands and legs were already restrained, in combination with the immediate deployment of his Taser, appear unnecessary and excessive under the circumstances. Dept. Balenger’s explanation, that he used that level of force to protect Dept. Lapinski from injury, is not, in our opinion, supported by the evidence.”

The letter goes on to state that because of this opinion, there “appears” to be probable cause to charge Dept. Balenger for the mistreatment of a prisoner.

“This office applies a very deliberate approach to charging felonies, and our obligation in considering whether or not to commence a criminal prosecution is informed by factors beyond the existence of probable cause,” the letter reads. “We must also believe that a conviction can be obtained, unanimously, by a 12-person jury.”

In light of the views of the Office of the Attorney General on ensuring a unanimous verdict can be reached prior to charging the felony against Dept. Balenger, Assistant Attorney General Brant said the office would not weigh in on whether or not to press charges. “While we are disturbed by Dept. Balenger’s approach and are concerned that his actions may betray an endemic problem, a determination cannot be made on the one incident we were asked to review,” the letter reads. “Our determination should be viewed neither as exoneration nor tacit approval of Dept. Balenger’s actions; it is only a finding that the filing of criminal charges are not appropriate based on evidence.”

The letter concludes by stating that “appropriate discipline” of Dept. Balenger is up to County Attorney Boris and Sheriff Ornelas.

In the written formal reprimand of Dept. Balenger disciplinary actions are taken including being suspended without pay for five days, taking a remedial course in use of force as well as additional training on the use of force in both the jail and on patrol.

A letter regarding disciplinary action against Dept. Balenger was also sent to the Executive Director of the Montana Peace Officer Standards and Training council for review.

“Your conduct in the above-described situation was unacceptable,” the written formal reprimand states. “Any further policy violations by you will not be tolerated and will result in further disciplinary action, up to and including termination.”

County Attorney Boris sent a memo to Sheriff Ornelas on July 26 regarding “Brady Disclosures,” which will now be necessary in any case involving Dept. Balenger.

The term “Brady disclosure” comes from a US Supreme Court Case, Brady v. Maryland, in which the court ruled among other things that the prosecution must disclose information that would enable the defense to more effectively impeach the credibility of government witnesses.

“After spending significant time researching this issue, as well as speaking at length with not only other county attorneys across the state, but also to an individual who provides ethics training specifically related to disclosures under Brady across the country, I have determined that this office is required to disclose information relating to the above-referenced incident in every case in which Dept. Balenger may be called as a witness,” the memo reads.

According to County Attorney Boris, the need for Brady Disclosures could apply in two cases – one in any situation where the suspect is “resisting” or where any use of force is used in an arrest and two being any case where Dept. Balenger is required to testify.

“It follows that disclosure of this information will necessarily place any prosecution in which Dept. Balenger is a witness in serious jeopardy,” the memo reads. “I do not want to be in the position of explaining to a victim of an offense that the case was lost or cannot be prosecuted due to concerns about the investigating officer’s credibility, and I assume you do not want to be in that position, especially given that you now have been informed of the disclosure requirement.”

County Attorney Boris issued a formal statement regarding the incident and the repercussions of the incident.

“We have an obligation, as elected officials and law enforcement, to do the right thing for the citizens of Mineral County,” County Attorney Boris said. “We are supposed to be the ‘good guys.’ If we cannot or will not police ourselves and take appropriate action when we become aware of wrongdoing within our ranks, then we are not deserving of the trust the public places in us.”

County Attorney Boris continues by stating that Dept. Balenger’s actions were “absolutely unacceptable.”

“The county commissioners and I have expressed to Sheriff Ornelas that we do not believe that the disciplinary action that was taken was severe enough to adequately address the seriousness of Deputy Balenger’s actions, but neither the commissioners nor I have the authority to discipline Sheriff’s Office employees - that authority rests with the Sheriff alone,” County Attorney Boris said.