District judge dismisses some claims

Testimony in Burgert trial continues today in Missoula

U.S. District Judge Donald Molloy on Tuesday threw out some of the claims in David Burgert's civil-rights lawsuits against law enforcement, saying no reasonable jury would find in his favor.

A six-member jury will sort through the remaining claims, deciding whether Burgert has been targeted and persecuted by law enforcement or whether he has brought on consequences by his own behavior.

Burgert, of Evergreen, currently is serving a federal prison sentence in connection with weapons he possessed while leading the Kalispell-area militia/paramilitary group known as Project 7. Court records show that after he was arrested and sentenced, he was diagnosed with a paranoia disorder.

His involvement with Project 7 will not be revealed to the jury.

Burgert, dressed in blue jeans, represents himself against a half-dozen suited attorneys. Molloy's frustration was evident Tuesday as Burgert struggled with rules of evidence and courtroom procedure, confused at times at what "overruled" and "sustained" meant in terms of an objection.

After the jury left for the day, Burgert withdrew some of his claims. Among them was the allegation that the Missoula County jail, where he was held three times, destroyed his mail. He also withdrew his claim that a detention officer there ordered him to be strip searched.

Molloy dismissed the allegation that the jail denied Burgert medical care and food while he was incarcerated. Burgert withdrew his claim that jail employees discussed confidential information about him.

Molloy is considering requests from defense lawyers to dismiss a claim that Flathead County sheriff's deputy Tom Snyder filed a false report about Burgert and that Burgert proved no actual damages after being pepper-sprayed by Kalispell police.

At the end of the day Tuesday, Burgert said he was out of witnesses unless a friend who recently had undergone surgery was fit to travel to Missoula. He said he was unaware he had to subpoena witnesses such as doctors and jail employees.

On Tuesday, he called his wife, Yvonne; his former attorney, Matt Sisler, who has been suspended from practicing law and witnessed one of the events referenced in Burgert's suit; a process server who was with Sisler; a former inmate in the Missoula County jail; and defendants, Kalispell policeman Kevin McCarvel, police Chief Frank Garner, and sheriff's deputy Tom Snyder.

Burgert testified about his confrontations with police. He said the 11 medications he takes now help him communicate and alleviates his "desire to worry about being shot and killed by law-enforcement every day."

On Monday, he testified that he still suffers shakes, tremors, and nightmares after being pepper-sprayed by Kalispell policeman Kevin McCarvel.

On Nov. 27, 2001, Burgert showed up when two people he knew were trying to serve civil papers on someone. Police responded to a complaint that the two men, Sisler and David Williams, were stalking the person they were trying to serve. Police stopped the men and were investigating the complaint when Burgert arrived.

McCarvel testified that Burgert refused to leave the area when officers told him to and did not comply with McCarvel's orders.

Burgert testified that McCarvel walked up and pepper-sprayed him "in the blink of an eye." Video shot by Sisler captures the event, and the jury will review that.

Burgert was taken to the Kalispell Police Department, where officers placed a spit hood on him, because they thought he spat on them. The hood is intended for officer protection against Hepatitis C and other diseases communicated by bodily fluids, Garner testified.

Burgert said he was only clearing his throat and nose after being pepper-sprayed. He said officers did not decontaminate him in a timely manner, letting him suffer from the chemicals. Police said it was only 12-14 minutes from the time Burgert was sprayed until he was allowed to shower. During that time, they took him from Main Street where he was arrested, secured their weapons, checked Burgert for weapons, put on protective gloves and waited for him to compose himself. The spit hood was on Burgert for about 2 1/2 minutes, Garner testified, and Burgert did not dispute that.

In another instance, Snyder and two Montana Highway Patrol officers in January 2001 arrived at Burgert's house on Trumble Creek Drive after a friend of Burgert's led them there during a low-speed pursuit.

A brief physical episode ensued, during which, Snyder says, Burgert struck him in the face. Burgert denies that and filed the false-report claim against Snyder.

He also says he was injured by jail officers in Missoula. He says his wrist was broken and he sustained other injuries while in the jail. No jail officers have testified.

Although the jury can't hear about Burgert's activities with Project 7, he opened the door to a slice of it Tuesday when he asked Garner whether Garner ever had arrested him or seen him with a weapon. Yes, Garner replied, "in an armed standoff with our SWAT members, you were holding a fully automatic machine gun."

Burgert also asked whether Garner were aware of any violent acts committed by Burgert. Garner started to offer testimony before Burgert cut him off.

Today, defense attorneys will present their cases on the remaining claims.

The trial was scheduled to end today, and Molloy said he hopes the case can go to the jury before Thursday.

Reporter Chery Sabol may be reached at 758-4441 or by e-mail at csabol@dailyinterlake.com.