SUPERIOR – The reinstatement of a sheriff’s deputy who was found by state investigators to have used excessive force on a restrained prisoner last September isn’t sitting well with elected officials of Mineral County.
Deputy Jim Balenger was placed on paid leave in October pending a probe by the Division of Criminal Investigation into charges he struck and tased inmate DJ Christopher Bass while Bass’ ankles and hands were restrained and another deputy had him in a headlock.
The suspension lasted more than nine months, at a cost to the county of nearly $45,000. Sheriff Ernie Ornelas reprimanded Balenger in July and reinstated him, to the dismay of commissioners and the county’s chief prosecutor.
His return to active deputy work “will necessarily place any prosecution in which Deputy Balenger is a witness in serious jeopardy,” County Attorney Marcia Boris wrote in a memorandum to Ornelas.
Boris said Friday she’s had to reject incident reports that Balenger has filed for prosecution consideration, including two last week.
While they can’t tell Ornelas who to hire and fire, the county’s three commissioners are united in their desire to see him remove Balenger from the force.
“From everything that’s been presented to me, I believe the sheriff needs to step up and relieve Mr. Balenger from his duties, to protect the county,” Commissioner Duane Simons said. “I don’t see what use a deputy is to us if he can’t be used in a court of law to testify.”
Ornelas “has got to do something,” Commissioner Laurie Johnston agreed. “It’s ridiculous. I would hate to have something drastic happen – a rape or a child molestation that (Balenger) investigated and then to have to go to the person and say, ‘Hey, I’m sorry, but we can’t prosecute this,’ knowing that Deputy Balenger was the one that did the investigation.”
Ornelas was out of the office Friday and couldn’t be reached for comment. When contacted by phone at his home, Balenger told the Missoulian “there’s more to it,” but referred questions to his attorney, Richard Buley of Missoula. Buley was also out of his office Friday afternoon.
Balenger, who has been with the sheriff’s department in Mineral County since 2007, was reprimanded by Ornelas for violating department policies governing the use of Tasers and force.
“Your conduct … was unacceptable,” Ornelas wrote in a formal reprimand negotiated with Boris. “Any further policy violations by you will not be tolerated and will result in further disciplinary action, up to and including termination.”
The sheriff’s sanctions against Balenger included a five-day suspension without pay, and called on the deputy to take a remedial course on the use of force before he could return to work “in a non-patrol capacity, primarily administrative in nature.”
Several county officials confirmed that Balenger is working on patrol.
Balenger ran afoul of the law before. He was sanctioned in 2010 by Ornelas’ predecessor, Hugh Hopwood, after pleading guilty in Mineral County Justice Court to illegal possession of an elk.
He was fined $535, received a 12-month deferred sentence during which time he lost his hunting, fishing and trapping privileges for a year.
Not only was Balenger deemed to use excessive force against Bass, but his explanation that he did so to protect a fellow officer from injury “is not, in our opinion, supported by the evidence,” said Assistant Attorney General Brant Light, who reviewed the investigation report completed by Kevin McCarvel of the Montana Department of Justice’s criminal investigation division.
Bass and fellow Deputy Tony Lapinski were called to the jail on the evening of Sept. 20, 2012, to deal with Bass, who had a history of unruliness as a prisoner. This time, he’d thrown food around his cell, written obscenities on the wall and covered the lens of a security camera with paper.
Video of the holding cell after the paper was removed showed a compliant Bass until he was placed in a restraint chair in an adjoining room. According to jail policy, an inmate must be warned that he’ll be placed in a restraint chair unless he immediately complies with orders.
Based on that, Ornelas said in his reprimand letter, “Bass should never have been placed into the chair in the first place.”
In interviews with McCarvel, Balenger said Bass, while being strapped into the chair, tried to head butt Lapinski and was “very much a threat.”
“He was just out of control, very non-compliant, being argumentative,” Balenger testified. “When I seen him kind of arch his back and go … go back to hit Lapinski I knew the fight was gonna be on then.”
He added detention officer Keith Miles was struggling to remove one handcuff so Bass’ wrist could be fastened to the chair. Balenger said he wasn’t sure if that hand was free when he pushed Bass back into the chair with a “palm thrust.”
Bass, who is serving a sentence in Montana State Prison for unrelated felony convictions, claimed Balenger “grabbed the back of my neck and forced me all the way down as far as I could go,” with his head between his knees.
He said Balenger “punched” him with a closed fist in the stomach when “I guess I kinda forced myself to sit up because it hurt.”
The blow “obviously didn’t do anything to me and so (Balenger) grabbed his Taser and tased me in the stomach,” Bass told McCarvel.
In a letter to Boris on May 30, Light said it was clear in the report that Balenger and Lapinski “were dealing with a difficult inmate and that some force was appropriate” to get Bass strapped into the chair.
But Light said he was “disturbed by Deputy Balenger’s approach” and “concerned that his actions may betray an endemic problem.”
Nonetheless, the Attorney General’s Office determined not to charge Balenger with excessive use of force, a felony, based “on the one incident we were asked to review.”
“This office applies a very deliberate approach to charging felonies, and our obligation in considering whether or not to commence a criminal prosecution is informed by factors beyond the existence of probable cause,” Light wrote. “We must also believe that a conviction can be obtained, unanimously, by a 12-person jury.”
He left appropriate disciplinary action to the county.
Boris said the attorney general’s review means that Balenger’s actions in the Bass case will affect every case in which the deputy will be called on to give testimony.
“I’m obligated to disclose that now,” she said, citing state law, attorney ethics guidelines, as well as the 1963 U.S. Supreme Court decision Brady v. Maryland and its progeny. “If I have information that impacts the credibility of a witness that I may potentially put on the witness stand, I must disclose that to an opposing counsel.”
That puts her in an “impossible” position to prosecute, she said.
“I have a responsibility to the people of this county, whether they be criminal defendants, whether they be crime victims, whether they be Joe Citizen on the street … to protect the rights of the people in the county,” Boris said. “I don’t feel like I’m able to do my job appropriately if I go into a criminal case with one hand tied behind my back.”
Roman Zylawy, chairman of the Mineral County commission, said the commissioners are “rather powerless” to say who works in the office of another elected official.
“We can only control the budget and the money that goes to each department in the county, so the ability to make those decisions lies, in this case, with the sheriff himself,” he said.
He added that commissioners recently approved the funding of a sixth deputy to go with the sheriff and undersheriff position. With Balenger’s return, “this is the most Mineral County has had in many years,” Zylawy said.
Commissioners can’t tell the sheriff what to do with his manpower, “but we control his budget a little bit,” Simons said.
“We’re in a situation now where money is tight, and it’s going to get tighter as time goes on,” he said. “The county can’t be in a position where we’re left liable for things that should have been taken care of a long time ago, and they haven’t been.”
The commissioners are “more than willing” to work with Ornelas, Simons added.
“But we’ve got to have people willing to do their job and be trustworthy. That’s not the case here. Deputy Balenger needs to be working some place else if he’s working at all. I don’t believe there’s a spot for him in Mineral County. But that’s up to the sheriff.”