Wyoming Supreme Court correct to allow citizens to sue police for botched investigations

If you’re harmed by a negligent law enforcement investigation, shouldn’t you have the right to sue the officers allegedly responsible to hold them accountable for their actions? 

I think so. And the Wyoming Supreme Court agreed in a 3-2 decision in March, when our state became the first in the nation to recognize that legal right. But the Legislature’s Joint Judiciary Committee disagreed, voting 8-6 earlier this month to sponsor a bill to take the right away from citizens.

This conflict sets up one of the most interesting decisions lawmakers will make during the upcoming session. It will be fascinating to watch where the far-right Freedom Caucus, now in charge of the House, lands on this controversial issue. 

If members truly believe in freedom and their stated skepticism toward government, shouldn’t that include the right of an aggrieved resident to take a case of police negligence to court? Or will the caucus stay tethered to “qualified immunity” — the conservative law-and-order principle that protects peace officers from civil litigation?

The complex case that sparked the Supreme Court’s decision began in November 2019, when the Wyoming Division of Criminal Investigation raided an Albin farm owned by Debra Palm-Egle and her son, Joshua Egle. Agents seized 722 pounds of suspected marijuana plants. Testing revealed it was actually hemp.

The mother and son lobbied legislators to legalize industrial hemp in Wyoming, which had been classified as a drug even though it lacks the psychoactive component of marijuana . After the bill became law, legally growing the plant was put on hold until the state developed regulations and issued licenses.

Egle, though, jumped the gun. He told WyoFile he grew a test hemp crop before the licensing process was finalized to research the right time for farmers to harvest the plants to keep concentrations legal. 

Under the new law, hemp can have no more than 0.3% of tetrahydrocannabinol, or THC, the chemical in marijuana that gets users high. Today, common dispensary marijuana strains in states where it is legal have THC levels at 20% or higher.

DCI said a “reliable source” claimed the farmers appeared to be growing marijuana. No one was home when agents visited, but they saw plants they suspected were marijuana drying in a barn.

Returning with a warrant, agents arrived in tactical gear and trained rifles on two farm employees, Brock and Shannon Dykes, and their 11- and-12-year-old sons. Brock Dykes showed lead investigator Jon Briggs test results that indicated the plants contained less than 0.3% THC, but the crop was still taken.

A majority of confiscated plants the DCI tested were minimally above the legal limit. Laramie County Assistant Attorney David Singleton charged the duo and their two employees each with three felonies and a misdemeanor for growing marijuana and drug trafficking. If convicted, the suspects would face decades in jail, compared to a $750 fine for Egle’s actual offense, growing hemp without a license.

But all charges were dropped by a Laramie County Circuit Court judge at a preliminary hearing, based on lack of probable cause. The low THC levels clearly showed intent to grow hemp, not marijuana. Briggs admitted he never interviewed the Egles in the five months between the raid and when felony charges were filed.

In 2022, Palm-Egle sued Briggs and the DCI for damages caused by the botched probe. She racked up $54,000 in attorney’s fees before charges were dropped. The elderly woman has multiple sclerosis and a compromised immune system, but was required to be tested weekly for drugs at a facility during the pandemic and not leave Wyoming. Palm-Egle couldn’t return to her Colorado home to use prescribed marijuana for pain relief. She was treated like a criminal without being convicted.

A federal court withheld ruling on the case because — don’t laugh — it couldn’t find in Wyoming “a legal duty of law enforcement officers to conduct cases in a non-negligent manner.” After meticulously examining case law here, three justices on the Wyoming Supreme Court determined the state has long held law enforcement officers “have a common law duty to act as reasonable peace officers of ordinary prudence under like circumstances.”

Two justices dissented, maintaining this duty “would invite litigation, impair vigorous prosecution, and have a chilling effect on law enforcement.”

Eight months after the court’s split decision, the Joint Judiciary Committee’s knee-jerk reaction was to sponsor a bill to prevent future lawsuits like Palm-Egle’s — which will be heard in federal court in March — from being filed.

Not surprisingly, many of the bill’s proponents have strong law enforcement backgrounds. Rep. Ember Oakley (R-Riverton) is a Fremont County prosecutor, and Rep. Art Washut (R-Casper) is a retired police officer.

Oakley, who lost her reelection bid in the GOP primary, said state policy and law already place checks on officers when conducting investigations. “To say that they are not held to a legal standard unless they can be sued for negligent investigation is not correct,” she said.

Washut made the disingenuous argument that if the bill is killed, it means police have a duty to the perpetrators of a crime not to be negligent, but they “have no similar duty to the victims of a crime.”

Washut ignored that Palm-Egle never perpetrated a crime but was, in fact, a victim of police negligence. A fresh look at Briggs’ actions during the investigation confirms that view.

A federal district court noted Briggs admitted he “could have investigated further and developed more evidence that [the crop] was being grown as hemp and not as marijuana.”

In May 2021, the state Supreme Court censured the Laramie County prosecutor for allowing Briggs to provide false testimony under oath: once about a critical exchange with Brock Dykes on hemp testing results, and when the agent later denied he had read an email from Palm-Egle’s defense attorney asking him to clarify earlier false testimony.

The Supreme Court, citing the lies, rejected a Wyoming deputy attorney general’s request to keep Briggs’ name out of the prosecutor’s censure to protect his reputation. 

Law enforcement circled its wagons. DCI’s internal review cleared Briggs of any wrongdoing. The Wyoming Peace Officer Standards and Training Commission opened its own investigation and concluded there was insufficient evidence to support the claim that Briggs perjured himself or attempted to mislead the court. He remains a DCI agent.

Notably, the Supreme Court also affirmed law enforcement officers acting within the scope of their duties when conducting a criminal investigation are entitled to assert qualified immunity.

Rep. Ken Chestek (D-Laramie), a retired law professor, voted against the bill because it takes government immunity “a step too far.” Under the court ruling, he said, police officers can still offer a defense that protects them if they were acting reasonably and in good faith.

Bill supporters emphasize no other states allow peace officers to be sued for negligent investigations. California, for example, expressly extends immunity to law enforcement during investigations.

But the Wyoming Governmental Claims Act, without exclusion, deems governmental entities “liable for damages resulting from tortious conduct of peace officers acting within the scope of their duties.” Rep. Oakley said the ruling puts law enforcement in “extremely dangerous territory,” but lawmakers made that decision, not the court.

Is there a reason to “fix” it? I say no. The DCI and an investigator upended Palm-Egle’s life, caused financial harm, gave false testimony and didn’t even conduct an interview before the prosecution filed felony drug charges.

Does that sound like a competent investigation or a negligent one? Future botched cases may have more severe impacts on Wyomingites, who are presumed innocent until proven guilty beyond a reasonable doubt. 

The state has nothing to gain, but much to lose, if it bans citizens from seeking reasonable relief for negligent probes by peace officers.