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Feds investigating whether Grand Forks police violated civil rights of man forced out in cold

GRAND FORKS, N.D. - The U.S. Department of Justice is looking into whether the Grand Forks Police violated the civil rights of a man who officers forced to stand in the cold with no jacket, hat or gloves during a traffic stop.

"We're alleging that it's discrimination. It's racial: He was singled out because he was black," said attorney Tom Omdahl, referring to his client Jason Hickman.

Omdahl said he filed a complaint with the Justice Department shortly after the February 2008 incident that left Hickman with frostbitten ears.

Chief John Packett said his department has completed a report responding to the Justice Department's preliminary questions about the incident and how it was later handled. Those responses will be forwarded along in the next few days, he said Monday.

"We are cooperating, and I'm confident that the questions that the (Justice) Department has forwarded to us have been answered in a timely and a complete and successful manner," Packett said.

Omdahl characterized the Justice Department's action as an "investigation," but Packett said it's been classified as a "review." An attempt to obtain comment from the Justice Department's Office of Civil Rights was not successful Monday evening, when the Herald learned of the filing.

According to the Justice Department's Web site:

Complaints of this nature are investigated to determine whether a law enforcement agency is complying with the law. Sometimes, the department will resolve the allegations without a full-scale investigation, other times such an inquiry will take place.

"What they look for is ... what did you do about it?" Packett said. "What they look for is inaction."

The site goes on to say that if the Justice Department finds that a violation occurred, it will try to settle the matter out of court. If that doesn't work, the department may cut an agency's funding. The Grand Forks Police receive funding from the Justice Department, Packett said.

Last year, an outside agency investigated the incident, and the Police Department subsequently recommended that two officers involved, Eric Strauss and David O'Toole, be fired. But Mayor Mike Brown decided to demote O'Toole from the rank of master police officer to police officer and require him to serve a 60-day suspension and a year on departmental probation. Brown said he thought Straus was more culpable because during the traffic stop he was charged with looking after Hickman, and because of that, the mayor went along with the recommendation to terminate him.

In addition to the civil rights complaint, Omdahl is also seeking a settlement from the city for his client. The Grand Forks attorney said he will file a civil suit in federal court if a settlement between is not reached by the end of this month.

Last month, a jury found O'Toole, 33, guilty of reckless endangerment, a Class A misdemeanor, for his part in the traffic stop. During his trial, computer messages between him and Strauss, 27, came to light.

As 25-year-old Hickman stood outside in a 42-below-zero wind chill and the pair sat in heated squad cars, O'Toole wrote to Straus: "That's right, make him freeze." The reply: "Yep, that boy has earned it over the years here."

Omdahl said the use of the term "boy" and the fact that Hickman is black and was the only person made to stand outside have led him to view the incident as racial.

O'Toole was sentenced to 40 hours of community service and two years of unsupervised probation. Straus, who was also charged with reckless endangerment, pleaded guilty to a lesser count of disorderly conduct. He was sentenced to 20 hours of community service and a year of unsupervised probation.

O'Toole currently does administrative work for the department and does not carry a gun. A judge's decision of whether he can carry a gun while on probation is pending. That decision will have a significant bearing on O'Toole's future at the department.