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Grand Forks lawsuit: Cops joked after forcing man to stand in 42-below weather

David O'Toole

GRAND FORKS - Jason Hickman told jurors Tuesday that he was forced to stand in subzero weather during a February traffic stop wearing torn jeans, a long-sleeve T-shirt, work boots and not much else.

The 25-year-old said he turned his back to the wind and curled his shoulders inward trying to stay warm.

Hickman took the stand on the first day in the trial of David O'Toole, a Grand Forks officer charged with reckless endangerment in connection with the incident that left Hickman's ears frostbitten.

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

"He didn't create this situation," Geiermann said. "Eric Straus did."

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

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

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

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

Hickman told the jury he and his co-worker, Ricky Karel, were headed to Hardee's just after midnight Feb. 10 during a break from LM Glasfiber. Speeding to get food and get back to work, Karel got pulled over by Officer Brian Cofer.

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

Cofer said he asked Straus to place Hickman in Straus' squad car, so he could search the pickup. After completing the search, Cofer said he saw Hickman standing outside.

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

He did not know Hickman had been made to stand outside while he searched the pickup, he said.

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

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

Karel told the jury he never saw Hickman put inside a squad car. He said his co-worker was "shaking, chattering pretty bad" after standing in the cold.

Hickman said when his shift ended, he went to the hospital where a doctor treated his red, blistered ears. That doctor is expected to testify today along with O'Toole and Straus.

Arnie Rummel, an agent with the state Bureau of Criminal Investigation who was called in to investigate the incident after Hickman filed a complaint with the department, told jurors about computer messages that Straus and O'Toole exchanged while Hickman stood outside:

O'Toole: "That's right, make him freeze."

Straus: "Yep ... that boy has earned it over the years here."

Then later:

O'Toole: "That's an unlawful arrest."

Straus: "Yeah ... in search, Hickman got cold for nothing."

O'Toole: "Lawsuit."

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

O'Toole: "LOL (laugh out loud) ... that's true."

Rummel said O'Toole expressed regret over sending the messages and described the "freeze" comment as a joke.

The trial is set to resume at 8:45 a.m. today.