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Hoff · Joined: 28 Jun 2007 Posts: 769 Location: Warrior Nirvana

Off Duty Article
January 14, 2009
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10-8: Life on the Line
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with Charles Remsberg

P1 Exclusive: Iron Pigs, Hells Angels, and universal off duty carry: Behind the scenes in a critical court case

Part one of a two-part series

In the law enforcement blogosphere, as well as the mainstream media, the case was controversial from the get-go:

Four off duty, out-of-state LEOs and a firefighter, all members of the police motorcycle club called the Iron Pigs, get into a heated confrontation with some Hells Angels at a roadhouse during the annual bike rally in Sturgis, S.D. One of the cops shoots one of the HAs. A county grand jury indicts the officers and the fireman for CCW in a drinking establishment, a violation of South Dakota law.

The law enforcement community reacts with major mixed emotions. If the charges stick, that would be the first successful challenge of the hard-fought and much-cherished federal legislation that allows off duty and retired peace officers to carry legally in any jurisdiction in the U.S. On the other hand, some asked, why did cops show the “poor judgment” of recreating on the same premises with outlaw bikers at an infamous event like the Sturgis rally?

As the operator of one popular LE listserv put it after a South Dakota court threw out the indictments last November: “A correct decision…But again, the core issue is not to go to places while armed where trouble is a certainty and there is no compelling reason to do so.”

Is it fair to question the common sense of the officers involved?

You be the judge. But first, here are some things about the case you may not know.

THE SETTING. The headlines about cops being in a “brawl” in a “biker bar” were enough to skew the opinions of many civilians and fellow LEOs at the outset—and to distress the involved officers, who felt such terminology unjustly characterized what happened, smeared their reputations, and potentially threatened their careers.

Despite its suggestive name, the Loud American Roadhouse where the shooting took place is not the stereotypical biker-gang hangout, according to locals. Instead, it’s “a mainstream, family-type restaurant-bar, with food, live music, and dancing, famous for its steak tips,” says Robert Van Norman, a long-time resident of nearby Rapid City and a partner in the law firm of Nooney, Solay & Van Norman, which defended the accused officers.

One of those officers, whom we’ll call Steven Shane (he asked that his real name not be used), told PoliceOne that he’d been assured “by other LEOs that it was a law enforcement-friendly place.” On a previous visit, he says, the owner himself told him he was glad to have out-of-town officers frequenting the place. “I’ve seen Blue Knights, Renegade Pigs, Sentinels, and other cop motorcycle clubs there,” Shane says. “We all went to the same place, and there was never a problem. OMGs [outlaw motorcycle gangs] never went there. They had places of their own.”

But that hot and humid night last August, as the week-long rally wound down, a small contingent of Hells Angels did show up, after the Iron Pigs were already there. The HAs, wearing their colors, hung around the large four-sided bar in the center of the place where several members of the IPs were eating, socializing, and listening to the band, along with a noisy throng of some 400 other patrons.

As we’ll see, the HAs may have been present with a specific purpose in mind.

THE PLAYERS. The accused officers, all from Washington State, were “highly decorated,” seasoned veterans of law enforcement, “not inexperienced young cops out being cowboys,” Van Norman says.

Dennis McCoy, a patrol sergeant with Seattle P.D., “has 40 years on the job,” according to Van Norman. Some 50 years’ combined experience is shared by the others, Seattle Det. Ronald Smith; James Rector, assistant port director for U.S. Customs and Border Protection, and Sr. Customs Ofcr. Scott Lazalde, both based in Blaine, Wash. Smith and Lazalde have Military Police experience, as well.

Lazalde and his wife had arrived at the Roadhouse after shopping that evening among the rally’s many vendors for new leathers; theirs had been stolen from their bikes during the long ride from the West Coast. The fireman in the group, Erik Pingel, with the U.S. DoD in Colorado, was with his girlfriend. All the males were flying their colors, like every other motorcycle club member at the rally. During the late evening and past midnight, “we were just enjoying a good time socializing before heading home the next day,” says Steven Shane. “We weren’t rubbing elbows and slamming down beers with the Hells Angels.”

Something that’s called “conjecture” by Van Norman’s associate lawyer, Kenneth Orrock, is considered a very real possibility by Steven Shane: that the HAs had a special interest that night in Det. Ron Smith.

Shane explains: Smith, whose nickname is “Kilo” from his days as a narc, “had testified in a RICO case against Hells Angels in Seattle. Four of them went to prison. He got threatening phone calls at his house during and after the trial.

“This was his first year at Sturgis. The HAs could have known he was there. They’ve got a better intelligence network than cops do.”

Certainly history shows that the gang can be violently proactive when it comes to law enforcement. Although they’re only a tiny minority of the thousands of riders who roar into Sturgis for the annual pilgrimage, “the HAs own property there and there’s an informal understanding that they are the top turf holder in and around town during that week,” says Ted Deeds, chief operating officer for the Law Enforcement Alliance of America (LEAA), which aided in defending the indicted officers.

“Many folks believe the HAs are a group of criminal predators,” Deeds says. “They had a chance to seize an opportunity to send a message. I think they were going to take on these cops and leave a mark.”

THE SHOOTING. The first contact with HAs at the jam-packed Roadhouse came around 1 a.m., through a biker whose jacket patches indicated he was a gang prospect, according to Shane. “He came up and talked to me, asking where we were from, who we were. I knew he was gathering intelligence. I figured maybe it was part of his initiation. I didn’t know about Ron’s history with the HAs at that point.

“The conversation was cordial. We smiled at each other, and he went on to the next guy.” When he reached Smith, the casual cordiality took a nasty turn, Shane says. Soon two “full patch” HAs joined the prospect and “they all got in Ron’s face. It was like they’d gone through the crowd, looking for him.”

Smith tried to defuse the situation by proposing that the cops and the outlaws stay on opposite sides of the square bar so everyone could enjoy themselves. Sgt. McCoy, known for “a gift of gab that could sweet-talk a rock,” pulled cigars from his pocket and suggested, “Let’s go have a smoke and calm down,” Shane recalls.

The HAs didn’t bite. The prospect, meanwhile, was busy text-messaging on his cell phone.

“We were telling each other, ‘Let’s get the women together and get out. We don’t need this,’ ” Shane says. “The HAs were still in Ron’s face. They wouldn’t let it go.”

As the Iron Pigs worked to pluck their scattered party from the crowd, “an older guy, a civilian, tapped me on the shoulder,” Shane says. “He said he’d heard the HAs talking and ‘They’ve already called their buddies to come here,’ ” apparently from a Hells Angels’ bar about a block away. “He said, ‘They’re waiting for you outside. Watch your back.’ ”

It wasn’t long before one of the HAs grabbed Shane’s left arm. “I jerked away. Another off duty cop we didn’t know tackled him. I heard a bunch of yelling…and all hell broke loose.”

Outside, according to attorney Orrock, some HAs were gunning their bikes and peeling rubber down the street, apparently in “an attempt to draw law enforcement away from the Roadhouse.” Perhaps a dozen others “bull-rushed through security” and charged into bar.

“Ron Smith was cold-coked; he doesn’t know where it came from,” Orrock says. “The next he knew, he was down on the floor, with his head against the foot rail of the bar. He was getting kicked with boots and taking other types of impact.”

Shane says: “A Hells Angel got a headlock on him and was pounding him in the face with his fist, upper-cuts to his eye socket and nose. They were trying to kill him.”

Orrock: “As he was starting to black out, he drew his Glock 23 and fired two shots.” One hit the abdomen, the other the leg of a Hells Angel from California, later identified as 33-year-old Joseph McGuire, seriously wounding him and stopping the attack. “Absolute bedlam broke out as people tried to flee the place,” Orrock says.

“Smith back-peddled himself into a corner, placed his badge on his chest so it could be seen, and laid his gun in his lap in case he needed to further defend himself. His nose was broken, a tooth was chipped, he’d suffered a concussion, his ribs were badly bruised, and his eye was nearly swollen shut.”

Attorney Van Norman considers what happened next to be “amazingly selfless.” Scott Lazalde, who moments before had been a target of the HAs’ threatening harassment, grabbed towels and other materials from the bar and worked feverishly to stanch the flow of blood from McGuire’s wounds. “Stay with me!” Lazalde urged him. “Stay with me! You’re gonna be okay.”

“There were still a lot of Hells Angels around and lots of high emotions,” Van Norman says. “At that moment Scott wasn’t sure even where his wife was in the screaming crowd. But his first aid probably kept this outlaw biker from bleeding out.” LEAA’s Ted Deeds calls Lazalde “a hero.”

THE GRAND JURY. The Iron Pigs involved in the fracas readily admitted to being armed, as permitted with the approval of their respective agencies under the federal Law Enforcement Officers Safety Act of 2004 (popularly known as HR 218). They voluntarily surrendered their weapons to Sturgis police, and Smith’s blood was tested. He was found not to be under the influence of alcohol or drugs. “There was never any evidence in any way, shape, or form that anyone in their party was intoxicated that night,” Van Norman says.

The Meade County grand jury sits continuously during the bike rally, explains Van Norman, and the officers were instructed to appear as “witnesses” on Sunday. During the seven-hour hearing, Shane says they spoke freely and fully about what happened. By contrast, the grand jury transcript shows that a string of Hells Angels called before the panel all pleaded the 5th Amendment.

Investigation of the shooting had been handed off to the South Dakota attorney general’s Division of Criminal Investigation, a customary procedure. According to Orrock, two DCI agents testified before the grand jury that if they’d been in a similar situation, “they would have acted the same way the Iron Pigs did.”

“No one ever indicated that we might be in trouble,” Shane says. They went home and returned to their normal routines. Then two weeks later the storm broke. “We learned from the media,” Shane says, “that we’d been indicted on criminal charges.

“I was flabbergasted. I wondered if that meant I’d lose my job and my house.”

NEXT: The officers’ decision to stand and fight against a misdirected prosecutor takes a heavy toll.

Special thanks to Ted Deeds of the Law Enforcement Alliance of America for his valuable cooperation in helping assemble this report.

M.W. · Joined: 12 Jul 2007 Posts: 172 Location: inside the loop

Excellent article,Brian thanks for sharing the first part with us.

I have often read the writings of Massad Ayoob on the Doctrine of Competing Harms and all its complexieties in deadly force confrontations.
(I am sure as a expert witness yourself that you can shed some of your own insights on this topic as well.)
Here is a good link on the Doctrine -
http://www.personaldefensesolutions.net/Article-JudiciousUse.htm

Note** It has stuck in my craw that I cannot legally(with CHL of course) now even go out to dinner with friends and maybe enjoy a couple beers or a glass or two of wine over the evening and still carry my handgun. I will not get intoxicated ever but why should I risk life and limb and not be prepared to defend myself should the need arise?

Anyway the sheer numbers of HA opponents in this case should be enough for justification of the officers actions.
I hope those guys lawyers can get Ayoob to testify on their behalf as this case is exactly what the Doctrine is intended to address.

Looking forward to hearing what happens with this one for sure.

DarthReed · Joined: 11 Jul 2007 Posts: 61 Location: Redmond, Washington

The IPs are lucky that their assailants were so incompetent and so impatient. It would seem prudent to travel a bit more incognito if one has received credible death threats in the past.

Up here in Seattle, we're pulling for the good guys!

capdf · Joined: 14 Oct 2008 Posts: 23 Location: Cypress TX

The good guys win one:

A South Dakota Circuit Court judge recently dismissed charges relating to carrying concealed weapons against Scott Lazalde, 38, of Bellingham, Washington, and James Rector, 44, Ferndale, Washington, law enforcement officers with the U.S. Customs and Border Protection Service, and Dennis McCoy, 58, of Seattle, Wash., a Seattle police sergeant and Ron Smith, 43, a Seattle police detective. During a confrontation at the Loud American Roadhouse bar in Sturgis, South Dakota, Detective Smith shot Hells Angel member Joseph McGuire as McGuire made aggressive moves toward Smith.

McGuire still faces assault charges.

The judge ruled that a state may restrict police officers from carrying weapons on state property, but is barred from restricting officers from carrying weapons on private property within the state. The judge’s decision dismisses charges filed by Meade County State's Attorney Jesse Sondreal. Sondreal claimed that state law should trump HR 218, known as the Law Enforcement Officers’ Safety Act (LEOSA).

Judge Warren Johnson ruled that, “While states retain the right to prohibit the possession of firearms on government property and to permit private persons and entities to prohibit the possession of firearms on their property, they cannot restrict qualified law enforcement officers in any other manner.”

Judge Johnson’s decision is a victory for sworn officers whose concealed-carry rights are protected under LEOSA. The court really did nothing more than uphold the time-honored principle that local authorities must obey federal laws.

The LEOSA allows any law enforcement officer with powers of arrest, who is authorized to carry a weapon on duty (whether or not the officer actually carries a weapon), and meets certain standards, or retired officer who formerly met these criteria, to lawfully carry a concealed handgun in any state. There are certain narrow limitations. Qualified law enforcement officers employed by or retired from a local, state or federal law enforcement agency. A “qualified active law enforcement officer” is defined as an employee of a government agency who:

• is authorized by law to engage in or supervise the prevention, detection, investigation, prosecution or the incarceration of any person for any violation of law;
• has statutory powers of arrest;
• is authorized by the agency to carry a firearm; is not the subject of any disciplinary action by the agency;
• meets the standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;
• is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance;
• and is not prohibited by federal law from possessing a firearm.

Qualified active law enforcement officers must carry the photographic identification issued by the agency for which they are employed. A "qualified retired law enforcement officer" is defined as an individual who:

• has retired in good standing from service with a government agency as a law enforcement officer for an aggregate of fifteen (15) years or more for reasons other than mental instability, OR retired from such an agency due to a service-connected disability after completing any applicable probationary period of such service;
• was authorized by law to engage in or supervise the prevention, detection, investigation, prosecution or the incarceration of any person for any violation of law;
• had statutory powers of arrest;
• has a nonforfeitable right to benefits under the retirement plan of the agency for which he was employed;
• meets, at his own expense, the same standards for qualification with a firearm as an active officer within the state in which he or she resides;
• is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance;
• and is not prohibited by federal law from possessing a firearm.

Qualified retired law enforcement officers must carry the photographic identification issued by the agency for which they were employed and documentation which shows that they have met the qualification standards in their state of residence for the firearm they are carrying.

A number of questions are left unanswered by the LEOSA and are left to state officials to interpret and implement. For example, the LEOSA speaks of meeting a state firearms qualification standard. Some states have no state standards and those states leave firearms qualification standards to local agency discretion. There are no mandated procedures for qualification and identification documents for retired officers. Several states have taken affirmative action to fill the gaps left by the LEOSA and to facilitate its implementation. Other states have done little or nothing. Commonly asked questions include:

“I am a fully-sworn law enforcement officer with statutory law enforcement authority, but I work for a private university, or other non-governmental employer. Will I be able to carry under the provisions of the LEOSA?”

No. You must be an employee of a local, state or federal governmental agency to carry a firearm under the provisions of this legislation.

“My agency has a policy that does not allow me to carry my firearm while I am off-duty. Does this mean that this legislation will not affect me?”

If you are a qualified active law enforcement officer, you will legally be able to carry a firearm under the provisions of the LEOSA. There may be agencies which enforce or adopt policies, rules, regulations, or employment conditions which discourage or punish officers who choose to carry while off-duty, but such actions do not mean that the officer cannot carry under the provisions of the bill.

“I am a retired officer, how do I qualify to carry under the provisions of this bill?”

Retired officers must qualify at their own expense and, once they do, will be able to carry the firearm with which they have been qualified with under the provisions of the LEOSA. Each state may adopt different procedures. The state may issue retired officers who have qualified with their firearm a document certifying that the officer has met the state's requirements. Retired officers must carry this documentation in addition to their photographic identification.

“Does the LEOSA allow me to carry a firearm on an airplane?”

No. This legislation exempts qualified active and retired law enforcement officers from state and local laws regarding the carrying of concealed firearms, not federal laws. Carrying firearms on aircraft is regulated by other federal statutes and airline policy. There are other laws regulating carrying firearms on military bases, national parks, court houses, and post offices.

“I am a constable. Do I benefit from this law?”

Not unless employed by a state, city, or county law enforcement agency, and granted powers to investigate crimes and make arrests. A contractual relationship with a city or county is probably not sufficient to grant the protection of this law, but further study is needed on this issue.

“Could the state do nothing to implement the LEOSA, and not be in violation of federal law?”

Yes. An officer has no right to state-issued identification, state-administered qualification, or for the state to establish a qualification standard. Many agency legal advisors conclude that if the state does not have a firearms qualification standard, then no standard must be met. In other words, retired and active officers could carry weapons without meeting any standard. As for identification for retired officers, the federal law does not require that the identification be current, or show that the officer is actually retired. If a state does nothing, the likely legal result is that officers can still carry concealed weapons.

“Who will issue the required identification for retired officers?”

Some agencies already do so. The law does not contemplate that the state will issue identification; the state's role is to issue a ‘certificate’ of qualification if the agency from which the officer retired does not do so.

“Who will administer the qualification of retired officers?”

Unknown. Should it be the agency from which the retired officer resides? What about retired officers who move to Utah (a big issue in Florida!)? Should it be the state’s POST?

“Who will maintain qualification records for retired officers?”

Unknown. Aside from individual agencies, a state POST could easily create a system transforming officers’ training records into retired officers' records once an officer retires from an agency. This does not address the situation of officers who retire from one state and move to another state.

A clean-up bill is pending in both the U.S. Senate and House of Representatives. Senate Bill 376 and House Resolution 2726 would amend the LEOSA to clarify the concealed carry rights of retired law enforcement officers. The bills also clarifies that Amtrak Police Department officers and the executive branch of the Federal Government who are classified as a GS-0083 meet the definition of “qualified law enforcement officer” in the LEOSA. The Senate bill proposes that the aggregate years of service needed to meet the definition of "qualified retired law enforcement officer" would be reduced from fifteen to ten years and cleans up confusing language related to that definition.