See copyright notice at the bottom of this statement.
[A factual error has been brought to my attention. Stan Matthews is now
the IT director at the county. He originally was brought in to do the county
PR, but moved to the IT position awhile back. I hear he is good at IT. I did not
know that he had made this move. That explains why Sheriff Nou called on him to
help with the recorders. However, it does not answer all of the questions I
raise regarding a possible video recording of the incident. I apologize for
I represent Mark McCutcheon regarding the Christmas Eve Hay Ride incident.
Mr. McCutcheon and I are offering this final statement to the community.
In this statement, we carefully describe what happened at this Christmas
Eve traffic stop, discuss the police reports written by the deputies
involved, and offer our thoughts on Deputy Menjivar's actions and on
Sheriff Rob Nou's handling of the investigation and aftermath.
Why Offer This Statement?
We are offering this statement for several reasons:
Primarily, we are very disturbed by what happened at the traffic stop.
And, we are equally disturbed by what has happened since that stop.
Second, we are in a unique position to know what happened at that stop.
We gathered witness statements, interviewed witnesses, made public records
requests, and reviewed the results of those requests. Only the Sheriff's
Office has more information than we do.
Third, with the exception of the two police reports, the Sheriff's Office
has said little about what happened. We now know that the police reports
Fourth, our Sheriff has taken no remedial action that we are aware of.
We believe he should and should do so now.
Fifth, the public should know what happened so that it can form its own
opinion on what the Sheriff should or should not do. With no accurate
information from the Sheriff's Office, we offer this statement to educate
Finally, Mr. McCutcheon has decided to not pursue legal action with regard
to this incident. We would not be making this statement if litigation
was still an option.
This will be Mr. McCutcheon's and Brandli Law's final statement on this
matter. We do not feel it appropriate to take a leadership position
in this community with regard to this event. It shall be up to the
community to decide what to do with this information.
Here we will describe the Christmas Eve hay ride traffic stop in as much
detail as we can. First, a few notes:
We are very careful to describe the events of Christmas Eve
with accuracy. It is important to note that eye witnesses to these
sorts of events do a poor job of recollecting the events accurately,
as any lawyer or officer who deals with criminal justice will tell you.
Witnesses often, in good faith, recount different details that sometimes
can seem irreconcilable. Only by studying all accounts and applying
some common sense will a version of events surface that we can have some
So, we have engaged in careful study of all of the statements available,
including those of the deputies involved. We have left out details that
we are not sure occurred because of a lack of independent verification.
As careful as we have been, error is possible. However, we believe that
the facts in which we can have confidence, accounting for possible error,
support our conclusions.
We would like to provide to the public all of the source information
that we have. Unfortunately, this is not possible in this case.
While much of what we relate here is derived from public information,
there are two sources of information that are not public.
First, Mr. McCutcheon and I have collected numerous written statements
from witnesses, some of whom I have interviewed. Most of these
witnesses gave us the statements for purposes of litigation. However,
now that we are not pursuing litigation, most of these witnesses balk
at making their statements public. They do not wish to be the focus
of such intense public scrutiny. In an attempt to be as transparent
as possible, we invited Sheriff Nou to read these statements in my
office. Sheriff Nou accepted our offer and reviewed these statements,
complete with witness names and signatures, last week. He took notes.
However, at the request of the witnesses, he was not allowed to take
the statements with them. He may contact those witnesses as he sees fit.
We also make the same offer to members of the press. They may review
the statements here in my office on the condition that they not reveal
the identities of the witnesses.
A second source of information that we have received comes from a few
sources who are not direct witnesses to the events of Christmas Eve.
They spoke to me in confidence, and I will not reveal their identities.
While I consider these sources to be highly reliable, I have not included
in this narrative much of the information they gave me.
With those notes in mind, here is what happened:
As everyone by now knows, Mr. McCutcheon drove a truck pulling a low,
flat-bed trailer containing hay bales on which holiday carolers sat,
including eight to ten children. The trailer and truck were decorated
with numerous Christmas lights. The trailer's taillights were not hooked
up. This was the fourth consecutive year this group has participated in
this event. They drove very slowly through town, singing the whole way,
eventually reaching First Street.
While the group was traveling north on First Street, Deputy Menjivar
pulled the group over with his overhead emergency lights. Mr. McCutcheon,
the driver, walked back to Deputy Menjivar, who got out of his patrol car.
Mr. McCutcheon asked something like, "What's up?" or "What's going on?"
Deputy Menjivar said something like, "You have no lights." Mr. McCutcheon
replied something like, "What are you talking about? There are a thousand
lights on this trailer!" Deputy Menjivar indicated that this did not
matter because the taillights were out. Mr. McCutcheon said something
like, "Are you really going to do this on Christmas?" Deputy Menjivar
replied that he was and asked for Mr. McCutcheon's license, registration,
and insurance. There may have been other short conversation between them.
At this point, Mr. McCutcheon, frustrated with Deputy Menjivar, told him,
"You had better get backup because I cannot deal with you," or words to
that effect. It seems clear that Mr. McCutcheon used the word "backup."
Mr. McCutcheon walked back to his truck. Deputy Menjivar called for
backup. The conversation related in these last two paragraphs was
reported by several witnesses. This entire exchange took less than a
minute, as indicated by the timestamps of Deputy Menjivar's radio calls.
Deputy Brad Korth, using lights and siren, arrived less than a minute
after the call for backup, less than two minutes after Deputy Menjivar
stopped the group, again based on the timestamps of radio calls. By then,
Mr. McCutcheon was walking back toward Deputy Menjivar with his driver's
license. Very quickly, Deputy Korth got between Mr. McCutcheon and
Deputy Menjivar. Deputy Menjivar, clearly angry, yelled several times,
"He threatened to kick my a--!" Many witnesses immediately exclaimed
that Mr. McCutcheon made no such threat.
At one point during this time, Deputy Menjivar, with his hand on his gun,
lunged at Mr. McCutcheon and yelled, "What are you going to do about it?"
We are not sure what Deputy Menjivar was responding to. Deputy Korth
physically pushed or restrained Deputy Menjivar. That Deputy Menjivar
made the statements he made was verified by several, unrelated witnesses.
Nearly all witnesses reported an angry Deputy Menjivar physically trying
to get to Mr. McCutcheon. Most of those witnesses, and especially those
in a good position to see what was happening, report that Deputy Korth
had to physically restrain Deputy Menjivar. While the exact manner in
which Deputy Korth restrained Deputy Menjivar is unclear, it is clear that
Deputy Menjivar was angry and out-of-control and had to be restrained.
At some point, probably just after this confrontation, a bystander on
the sidewalk yelled something like "Power to the people." In response,
Deputy Menjivar took several steps towards that person with his hand on
his gun, instructing that person to leave the scene.
Deputy Menjivar went to his vehicle. Deputy Menjivar called dispatch
to get information on Mr. McCutcheon, the truck, and the trailer.
Deputy Menjivar made this call from his vehicle only two minutes after
Deputy Korth arrived at the scene, about four minutes into the stop.
During this call, Deputy Menjivar stated, "You might inform Zebra One
[referring to Sheriff Nou] that this is going to turn into a complete
FUBAR [a military acronym for 'F*cked Up Beyond All Recognition']."
Deputy Menjivar's voice was strained on the radio. Carolers can be
heard singing in the background.
A few minutes later, Deputy Menjivar stated on the radio from his patrol
car, "Now the whole crowd is turning against me. Let Zebra One know
that he is going to get a lot of complaints." The dispatcher responded
that Sheriff Nou was listening to the radio traffic at the time.
A few minutes later, Deputy Menjivar exited his patrol car and began
snapping flash pictures of the trailer and its occupants. Several of the
younger children were crying during this time. Several witnesses report
that Deputy Menjivar was sarcastically invited to take a picture of one
of the crying children, and that Deputy Menjivar took a flash picture
in the face of one of the children in response. The county provided no
such picture in its response to our public record's request.
Deputy Menjivar then cleared the scene. As he told dispatch that he
was clear, he said, "Let Zebra One know that he is going to get about
thirty complaints lying about what happened."
Deputy Korth escorted the carolers around town and home.
The deputies allege that Deputy Menjivar was the subject of racial slurs.
We know of one instance where someone referenced Deputy Menjivar as not
being from this country. We do not know who said this, and Mr. McCutcheon
strongly denies saying this as alleged in the deputies' reports.
This is the only specific reference to Deputy Menjivar's ethnicity that
we know of. While the crowd was certainly upset with Deputy Menjivar,
racial comments were not a focus of its comments to Deputy Menjivar.
We made a public records request for all records regarding this incident
on December 30. The request specifically sought all police reports and
all audio and video recorded by deputies. We were aware that Deputy
Menjivar routinely records traffic stops using a video camera mounted
on his chest. Mr. McCutcheon recalls Deputy Menjivar fiddling with
something on his chest and that this device had a blinking red light.
He also recalls Deputy Korth cautioning Mr. McCutcheon to watch what he
says because "Felix records everything." We expected to get a copy of
this video among other information.
On Tuesday December 31, Mr. McCutcheon met with the Sheriff Nou at the
Sheriff's invitation. They discussed a number of topics. At that time,
Mr. McCutcheon told the Sheriff that he believed Deputy Menjivar had
recorded the incident and that he had seen Deputy Menjivar fiddling
with the device on his chest. The Sheriff's notes of that interview,
obtained in a public record request, confirm this.
On Thursday January 2, Sheriff Nou paid a visit to me at my office.
I asked him if the incident had been recorded. He told me that he did
not know yet. Note that this was now nine days after the incident.
On January 7, we received documents from the county including
the reports by the two deputies involved. Included in this response were
Deputy Menjivar's and Deputy Korth's reports, the audio of radio calls,
and a number of emails. There were no photographs and no video or
audio recorded by a deputy. Accompanying this information was a letter
indicating that the county believed it had fulfilled my public records
On January 9, Deputy Nou wrote a short report indicating that, on Tuesday
January 7, he enlisted the help of Stan Matthews, the county's PR man,
to examine the two body video recorders used by the Sheriff's Department,
including Deputy Menjivar. According to the report, these recorders
had no information. The report does not explain why Deputy Nou needed
Mr. Matthews' help, does not indicate whether or not Deputy Menjivar
had actually recorded the scene or had intended to record the scene, or
even if the Sheriff had a conversation with Deputy Menjivar about it.
It also does not explain why it took two weeks after the incident to
look for any video, an interesting question in light of public records
requests made over a week earlier.
On January 13, we received Deputy Nou's January 9 report and two
photographs taken by Deputy Menjivar of the scene. Sheriff
Nou reviewed the written statements in our possession on Friday January
Safety and Legal Issues
The Sheriff and Deputy Menjivar emphasize safety and legal issues in
their statements. By doing so, we believe they are missing the point.
However, these issues were contributing factors to the events of Christmas
Eve and have been topics of community discussion since. So, at the risk
of creating a distraction from the important points, we will address
Deputy Menjivar states in his report that he pulled over the carolers
because the missing taillights on the trailer with its passengers
created an unsafe condition. He states in his report, "[The carolers]
will never know how lucky they are that McCutcheon's reckless disregard
for the safety of his passengers did not turn tragic." We do not share
Taillights exist to serve two functions. First, they provide visibility
of the vehicle at night. In this case, the trailer was lit up with
hundreds of Christmas lights with a total light output far exceeding any
that taillights would have provided. Second, taillights also serve as
brake lights, allowing drivers behind the vehicle to know when the brakes
are applied. The truck and trailer in this instance was traveling at
5 to 15 MPH, according to all witnesses, and, again, was clearly lit.
Any following driver would not need to depend on brake lights to know
when the trailer was slowing from, say, 15 MPH to a stop, and would only
need to tap on his brakes to stop as well. The missing taillights simply
did not present a safety issue in this case.
Both Deputy Menjivar and Sheriff Nou refer in their statements to an
incident on Shaw Island where a tractor and trailer overturned. This
incident involved a tractor and trailer going down a hill. The trailer
overpowered the tractor causing it to gain speed and eventually jackknife.
Certainly the Shaw Island accident had nothing to do with defective
taillights, which Deputy Menjivar calls out as the problem in this case.
Second, we cannot see how a trailer on city roads would run the risk
of overturning in this manner. People participate in hayrides all over
the world. Certainly accidents happen. But we have never heard, and do
not understand the assertion, that hayrides are inherently dangerous.
To declare them so because of a single accident would suggest that we
not drive on freeways or fly in airplanes because of the occasional
Perhaps of greatest concern is the possibility of a multi-vehicle
accident injuring unprotected passengers. It seems to us that the risk
of a traffic accident involving a well-lit trailer going at such slow
speeds on the streets of our town on Christmas Eve is almost entirely
theoretical. A driver would have to be reckless or intoxicated to be
involved with such an accident. We run the risk of injury from such
drivers when we walk on the sidewalk or cross the streets of our town.
The legal issues are, frankly, more difficult. Clearly the lack of
taillights was a traffic violation. We acknowledge that the lack of
a citation means nothing more than the deputies involved deciding to
not further inflame the crowd by writing a citation. In the past three
years, deputies have known of the annual hay ride and have allowed it
to occur. Perhaps we have reached a time in our history where we can
no longer engage in innocent and safe conduct that happens to violate
the traffic code. If so, this is a sad development.
We acknowledge that reasonable people may differ on these safety and
legal issues. We would rather not engage in a debate about them because
doing so distracts from the more important issues. We address these
more important issues now.
The Deputies' Reports
Through a public records request, my office received the reports of the
two deputies. Shortly thereafter, the Sheriff's Office posted these
reports on the internet. Deputy Menjivar's report was timestamped
approximately one hour after he cleared the scene on December 24.
Deputy Korth's report was timestamped just after midnight on December 30.
As a preliminary matter, I believe the dates and times of the timestamps
at the bottom of the reports accurately state when the reports were
submitted. I have no trouble believing that Deputy Menjivar wrote
his report in less than an hour. Clearly it was not cleaned up as can
be seen from the numerous spelling and grammatical errors. Also, the
format of the report does not make me suspicious, contrary to concerns
raised by the Island Guardian. Most of the deputies type their reports
into a database system that allows the reports to be printed out later.
I believe the reports are those of the deputies and that they were
submitted at the dates and times indicated.
The purpose of police reports is to record the important facts of the
incident. Officers write their reports when the incidents are fresh in
their minds. Officers rely on the reports to refresh their memories if
later called upon to discuss or testify about the incidents. Others,
including attorneys on both sides of a criminal or civil court case,
rely on the reports to know what happened. Good reports include all
of the important facts including those that would allow a tribunal to
determine whether a suspect's rights were violated. Good reports are
objective and dispassionate to engender trust in the officer's account
of the incident. And, reports must be truthful and must not contain
partial truths that mislead the reader to a false conclusion.
Deputy Menjivar's report does not meet this standard. In his report,
Deputy Menjivar was defensive and defiant about his actions. Rather than
including only the facts, Deputy Menjivar's report contains defensive
commentary. It is clear that he has an agenda and is far from an
Deputy Menjivar's report focuses on the missing taillights, what he
perceived as an angry and aggressive Mr. McCutcheon, and the way Deputy
Menjivar was treated by the crowd. He states that he pulled the trailer
over because he was concerned that the lack of brake lights would cause
a traffic accident and injuries, particularly to the young children in
the back of the trailer.
Deputy Menjivar emphasizes what he perceived as Mr. McCutcheon's anger.
"It is clear that McCutcheon wanted to instigate a fight and was so
angry that he was shaking." The report mentions, in two different
areas, Mr. McCutcheon's past criminal history of assault. First,
those who know Mark McCutcheon would find any assertion that he was
"shaking" in anger to be not credible. Also, not a single non-police
witness references Mr. McCutcheon's anger. Witnesses whom I interviewed
denied that Mr. McCutcheon exhibited anything more than frustration.
Mr. McCutcheon acknowledges that he was upset and frustrated, and that
he was disrespectful to Deputy Menjivar. He asked for another officer
because Deputy Menjivar's attitude was getting under his skin. But he
strongly denies that he became angry at all, much less so angry that he
would be shaking.
There are two important facts missing from Deputy Menjivar's report.
First, there is no mention of Mr. McCutcheon threatening the deputy.
This omission is glaring given the deputy's repeated assertion at the
scene that Mr. McCutcheon had threatened to "kick my a--." Obviously
such a threat to a Sheriff's deputy would be a serious manner and would
be reported. The only reasonable interpretation is that Mr. McCutcheon
never made such a threat and that Deputy Menjivar mistakenly believed at
the time that Mr. McCutcheon's reference to getting "backup" was a threat
of harm. However, it is not clear how Deputy Menjivar morphed the word
"backup" to a threat to "kick my a--."
The other omission was any mention of Deputy Menjivar's anger. If his
report is to be believed, he was calm and collected while Mr. McCutcheon
hurled insults at him and the crowd turned against him and his ethnicity.
Deputy Menjivar's own report raises questions regarding his state of mind.
He states that he never intended to write a citation. Yet he also
states that he took photographs of the trailer at the end of the stop.
Why would a calm deputy take pictures of the rear of the trailer at the
end of the stop if he was not supporting the issuance of a citation?
Why would he do this knowing that flash pictures would further inflame
the crowd? We submit that he did so due to his defensiveness and anger.
Deputy Korth's report causes us great concern because of its inaccuracy
based on the witnesses at the scene and on my sources who talked with
Deputy Korth about the incident.
Deputy Korth starts by talking about the radio call he received from
Deputy Menjivar. He speaks about the "stress" in Deputy Menjivar's
voice and the sound of a crowd on the radio as additional reasons for
concern. I have listened to a recording of that radio call many times.
Deputy Menjivar's call is certainly clipped, but does not sound stressful.
Also, I can hear no significant sounds in the background of the call.
(Deputy Korth also claims that Deputy Menjivar used the word "cover
officer" in his radioed request. Deputy Menjivar used the word "backup."
We are not sure whether this distinction is important, however.)
Deputy Korth attributes a great deal of swearing to Mr. McCutcheon.
Mr. McCutcheon strongly denies that he ever swore that evening. He was
fully aware that there were children present, and he held his tongue.
Interestingly, Deputy Menjivar's report does not mention swearing.
The most interesting part of Deputy Korth's report is the following:
I felt I may be able to deal with the crowd more effectively than Deputy
Menjivar. I was unsure Deputy Menjivar was able to hear me above the
noise of the crowd, so I put my flashlight, which was in my left hand,
into the center of his chest and began pushing slightly, pushing him
towards his patrol car.
Clearly this passage leaves out much. When Deputy Korth refers to a
flashlight, we are not talking about a penlight here. It is an aggressive
act to put a flashlight in the center of someone's chest and to push.
Why not simply use his hands? Why not put his arm around him and say,
"Hey buddy. Why don't you go over to your car while I work this out?"
No, he pushed Deputy Menjivar with his flashlight. This passage confirms
that Deputy Korth was highly concerned with Deputy Menjivar's state of
mind and behavior.
Deputy Korth's report references crowd noise as justification to use
his flashlight. Why not repeat what he said louder? Why not speak
into Deputy Menjivar's ear? Why does crowd noise justify use of a
flashlight rather than just hands? This justification makes no sense.
Its inclusion in the report is an attempt to minimize what happened and
as such is disturbing.
Also missing from Deputy Korth's report is any mention of Deputy
Menjivar's state of mind. If one read Deputy Korth's report without
any other information about the incident, the report, particularly
the passage quoted above involving the flashlight, would be confusing.
The report does a poor job reporting the events of that night and is
The timestamp on Deputy Korth's report is December 30. Since the report
time was just after midnight, it was a written or edited a little over
five days after the incident. We have no information as to why Deputy
Korth's report was written or edited so long after the incident. It seems
unlikely that he misunderstood the importance of the incident at the
time of the incident. This report date, combined what appears to be an
attempt to minimize Deputy Menjivar's part in the incident, is suspicious.
Deputy Korth's report does do a good job portraying himself as the savior
of the evening. Frankly, he deserves it. It is unfortunate that Deputy
Korth's upstanding behavior at the scene did not continue when he wrote
Deputy Menjivar's Behavior
We feel comfortable in our expectation that our officers maintain
self-control while doing their jobs. Angry officers make mistakes that
can cause numerous problems. Several of those problems occurred at
First, Deputy Menjivar's anger inflamed the crowd already not happy
with his decision to stop them. In contrast, Deputy Korth was able
to calm the crowd despite the stop. Perhaps we can be comforted that,
in our small town of Friday Harbor, Deputy Menjivar's anger would not
incite a crowd to violence. However, even short of violence, an angry
crowd works against an officer's duties.
Second, Deputy Menjivar's anger caused him to recollect events that
did not occur. At the scene, he claimed that Mr. McCutcheon had
threatened to "kick my a--!" Had an angry Deputy Menjivar been alone
with Mr. McCutcheon, Mr. McCutcheon could be facing a criminal charge
based on Deputy Menjivar's anger-clouded recollection. This possibility
may be the most troublesome concern that we list here.
Third, Deputy Menjivar could not contain himself physically. There should
rarely be a need for an officer in Friday Harbor to place his hand on
his gun in a threatening manner, and certainly not at this traffic stop.
For Deputy Menjivar to have to be restrained by another deputy speaks
loudly to his lack of physical self-control. Whether or not Deputy
Menjivar would actually draw his service weapon in anger, the very fact
he is armed requires absolute control of his anger. Put frankly, Deputy
Menjivar should not wear a badge if he can be angered in this way.
We wish to pause to acknowledge that Deputy Menjivar's anger was not
entirely unprovoked. First, Mr. McCutcheon became frustrated with
Deputy Menjivar's attitude early in the stop. And, we can understand
how Mr. McCutcheon's use of the word "backup" could sound threatening
to an officer even though that was not Mr. McCutcheon's intent. Deputy
Menjivar's call for backup is understandable under the circumstances.
However, Deputy Menjivar shares the blame for the escalation in the
first minute of the traffic stop. His stated reason for pulling over
a group of merry carolers traveling very slowly through town---missing
taillights---would be upsetting to most. If he thinks that a person is
not going to react negatively simply because taillights are required by
law, then he misunderstands human nature. He should have known that,
if he felt it so important to conduct the traffic stop, he would need to
tread carefully. Also, he had opportunities to deescalate the situation
in that first minute. Not only did he fail to do so, but it appears he
did not even try.
Second, ethnic comments are upsetting. We cannot blame Deputy Menjivar
for having a negative reaction to them. It is unfortunate that our
society still uses ethnicity as a verbal weapon. However, the very
fact that our society has not grown past this means that Deputy Menjivar
must be able to deal with the problem effectively. We do not see ethnic
comments as an excuse for an armed law enforcement officer to lose his
cool to the extent that Deputy Menjivar did on Christmas Eve. This is
a tough message. But it is reality.
As reprehensible as Deputy Menjivar's behavior was on Christmas Eve,
we should all be able to recognize that even officers make mistakes.
While there are some lasting effects on the children involved---a subject
touched on in our first press release---the only other real damage was
some frayed nerves and resentment. However, there are two reasons why
this incident causes concern greater than this.
The first reason arises out of prior incidents involving Deputy Menjivar.
In 2006, Deputy Menjivar was involved with a situation on Lopez Island
resulting in his relocation to San Juan Island. In the last year,
Deputy Menjivar has been the subject of numerous complaints regarding
his traffic enforcement. While some of these complaints centered on
his decision to stop and write tickets for relatively small infractions,
there were also many complaints about Deputy Menjivar's behavior during
these stops. In my occupation, I received many of these complaints
directly. Many citizens also spoke up at an open forum earlier last year.
While most, if not nearly all, of these incidents did not involve the
strength of anger exhibited on Christmas Eve, they do show a pattern of
a deputy unable to remain calm.
Second, Deputy Menjivar appears completely unrepentant. His report on
the Christmas Eve incident does not acknowledge his anger or behavior
at all and states, "I just wanted to prevent any possible tragedy.
Instead they turned into an [sic] personal attack on my [sic] and almost
created a riot." It apparently was all the crowd's fault. Then,
a defiant Deputy Menjivar writes to the news media. While his piece
mentions attacks on his family---a concern we should all share---Deputy
Menjivar goes on to declare, "My enforcement actions will not stop."
He boldly states, "There is a small but loud group of people in this
county that believe they should not be subjected to the laws of the State
of Washington because they live here or were born here." There appears
to be no recognition from Deputy Menjivar that he is creating his own
problems in this community.
All that has happened, underscored by the incident Christmas Eve, has
caused us great concern about Deputy Menjivar. At the very least, this
deputy has lost sight of the community he serves and the importance of
having a good relationship with that community. (Why else would he state
on the radio that the Sheriff was going to get "about thirty complaints
lying about what happened?") At worse, Deputy Menjivar does not meet
the standards we expect of law enforcement in this county. We might
feel better if the Sheriff was addressing these possibilities seriously.
Alas, we do not believe he is.
Sheriff Nou's Aftermath Handling
According to the dispatcher replying to Deputy Menjivar on Christmas Eve,
Sheriff Nou was listening to the radio traffic. He must have known at
that early stage that the community would be in an uproar about this.
Sure enough, the traffic stop has been a primary topic of conversation
both in the press and on the street since.
We elected our Sheriff. By doing so, we handed to him our trust.
We trust that, when we call 911, we will get protection. We trust
that, when we are the subject of an investigation, we will get fair
and even-handed treatment. We trust that, when an incident such
as the Christmas Eve Hay Ride occurs, our Sheriff will represent our
community's best interests in the subsequent investigation, and that he
will be open and honest with this community. We trust that he will put
our community first before his own reputation and that of his deputies.
I personally know nearly every deputy in the office, and I believe that
nearly every one would agree with this paragraph. However, we believe
that the Sheriff has, so far, let us down.
First, there appears to be an attempt to spin the truth of what happened.
We do not make this allegation lightly. It is far too easy to concoct
theories of wrongdoing with little or no evidence. In this case,
there is evidence. As already explained, Deputy Korth's report is
misleading at best. The date of the report is suspicious. Did Deputy
Korth decide on his own to spin the facts to avoid highlighting Deputy
Menjivar's behavior? Or did he receive pressure?
It does not matter. When writing a report, a deputy's first duty should
be to the whole truth. Our Sheriff should make that clear and enforce
that rule. It is clear he did not do so in this case.
There is also the question of whether Deputy Menjivar recorded the
Christmas Eve incident. Deputy Menjivar's wife posted on Facebook that
her husband records these sorts of things because of the opposition he
has experienced in the community. She did not say that he recorded this
particular incident. The posting was taken down shortly after being
posted although screen shots exist.
Sheriff Nou was clearly aware of the incident and its importance when
it occurred. On December 31, Mr. McCutcheon told him that Deputy
Menjivar was fiddling with a recording device on his chest. Yet, the
Sheriff told me on January 2, more than a week after the incident,
that he did not know if there was a recording. He told Jack Cory
of the Island Guardian at some point after this that he was unaware
that Deputy Menjivar recorded these sorts of things at all, a strange
assertion given that Deputy Menjivar had been doing so for at least six
months, and had recorded the big July 4 MIP bust at Roche Harbor. Then,
we get the strange report that, on January 7, Deputy Nou had enlisted
Stan Matthews' help in looking for a recording.
We have no direct evidence that a recording ever existed other than
Mr. McCutcheon's recollection of Deputy Menjivar fiddling with a device
on his chest with a blinking red light and Deputy Korth's statement to
Mr. McCutcheon to watch what he says because "Felix records everything."
One source told me that he believed the camera that Deputy Menjivar
had been using was broken earlier in December and that Deputy Menjivar
does not like using the other one because it is too bulky. (Sheriff
Nou's January 9 report does not mention a problem with either camera.)
Nevertheless, these facts stink. Surely Deputy Menjivar was available for
a simple question: Did he record the incident? Surely Deputy Menjivar
knows how to download video off of the device. Surely Stan Matthews
was not needed for this task. And, surely Sheriff Nou would find out
prior to two weeks after the incident whether there was a recording.
This recording, if it ever existed, would have settled all conflicting
accounts of what happened. Even if the video was poor, the audio would
have told much of the tale. The way in which the Sheriff handled the
investigation into its existence is highly suspicious. Why not simply
state, "I asked Deputy Menjivar and he told me that he did not record
anything that night?"
Our second concern about Sheriff Nou's handling of this event arises
out of his press releases. Nowhere in those releases does the Sheriff
ever address or even acknowledge Deputy Menjivar's behavior during the
incident. Instead, he pins the blame entirely on Mr. McCutcheon and the
other carolers. His focus is reminiscent of his comments at the public
forum earlier last year during which he refused to address the public's
concerns about Deputy Menjivar. His latest press release, dated January
14, three weeks after the incident, vaguely mentions "administrative
action" and "training," a baby-step in the right direction.
To be fair, the Sheriff has not had the benefit of the statements in our
possession until very recently. We wish that he could have read these
statements earlier, and we have explained why we could not release
them to him. However, the Sheriff has access to his own deputies,
not just their slanted reports. He has Norris Palmer's account and
that of Mr. McCutcheon, both of which have been published. And, he
has the comments Deputy Menjivar made on the air and to the public.
These should be enough.
We hope what we are seeing is only a very slow and careful investigation,
and that we will soon hear from the Sheriff. We hope that he will be open
and honest with us about the problems that this event and its aftermath
highlight. And, we hope that the Sheriff will take substantial, concrete
steps to address these problems. So far, we only continue to hope.
We do not believe that there was any substantial danger to the carolers
that night, with or without taillights. We understand and acknowledge
that the Sheriff and Deputy Menjivar do not agree with us. Whether or
not there was a danger is not the point despite attempts by the Sheriff
and Deputy Menjivar to focus discussion on this alleged danger.
We live and work in a small community. We have expectations of our law
enforcement personnel, who live and work in this same community, to handle
themselves appropriately. Deputy Menjivar did not do so Christmas Eve.
Sheriff Nou has not done so since then. And worse, we see no evidence
that they get it.
/s/ Stephen A. Brandli
Copyright 2014. Use of the foregoing statement is restricted to the
- Linking to it from other webpages or printing the URL of this page. Please
note that Brandli Law does not guarantee that this page will be available
beyond July 1, 2014.
- Quoting portions of this statement in an original writing where the quote
is attributed in some fashion to this statement and a link to this page is
included in the writing.
- Printing, or copying to a webpage, the entire statement including the
All other rights reserved.