Final Statement on Christmas Eve Hay Ride Traffic Stop









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 the error.]

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 are inaccurate.

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 the community.

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.

What Happened

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 faith in.

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 request completely.

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 17.

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 these issues.

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 this opinion.

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 serious accident.

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 unbiased reporter.

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 therefore unreliable.

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 his report.

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 this stop.

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

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