FARGO — Although legal authorities don't plan on investigating former Deputy Chief Todd Osmundson further, some believe that a case for police entrapment could be made for his involvement in the May 30 Fargo Marches for George Floyd protest and subsequent riot in downtown.
Cass County State's Attorney Birch Burdick and Fargo Police Chief David Todd are not considering a criminal investigation into Osmundson, a 31-year veteran of the police force, and U.S. Attorney Drew Wrigley is looking into federal charges against those arrested during the riot.
Meanwhile, local activists and the American Civil Liberties Union of North Dakota are raising questions about entrapment: Did Osmundson’s actions encourage protesters to riot?
Mark Friese, a former Bismarck police officer and now a Fargo attorney, said law enforcement enjoy wide autonomy when undercover. But Friese says an argument could be made in court that Osmundson's actions — which were not sanctioned by police — could have led to entrapment, or what is called in federal cases, "outrageous governmental conduct defense."
“It sure could be. It depends on the nature and the extent and the effect it had on the listener. If they’re just blending in and not affecting any particular person to act, then it’s probably not an issue. I would be very careful as a police officer if I were in those ranks. There’s what’s called an outrageous governmental conduct defense ... and is called entrapment as a matter of law,” Friese said.
Friese said the defense is a “fancy title” that goes back in North Dakota history to a time when police used evidence locker drugs to make undercover buys without court approval.
“Police were creating the crime,” Friese said. “These types of defenses can be raised, and if there is a police officer in the crowd engaging in conduct that other people are being prosecuted for doing the same thing, it’s a real issue.”
If those arrested in connection with the May 30 riot get slapped with federal charges, the ACLU of North Dakota intends to step in for a closer look. "Federalizing this would be an unwarranted and troubling escalation,” said Dane DeKrey, the group's advocacy director and a former federal public defender.
The ACLU believes Osmundson should be charged with crimes, including: drinking in public, curfew violation, refusal to disperse, and inciting riot.
DeKrey said there seems to be a double standard in the authorities' handling of the matter. “And if there’s not, then the police and prosecutor’s office owe the people of Fargo an explanation how Osmundson’s case is different from the protesters. We are concerned that there seems to be two systems of justice being applied — one for the powerful and connected and one for everyone else," he said.
In a statement last week, Todd said Osmundson's actions “do not warrant further criminal investigation, because of the fact others engaging in similar conduct in plain view on May 30 were also not investigated.” The chief added: "No citations were issued, no arrests were made and no referrals for charge-out were made for any such violations."
During an interview shortly after the riot, Osmundson showed The Forum text messages that he exchanged with Todd and others in incident command while he was dressed in plainclothes trying to fit in with protesters.
Osmundson received a one-week suspension as a result of his actions, and he resigned. An internal police investigation concluded that “no one from the department was aware” of Osmundson’s undercover work, adding that the former deputy chief was drinking a beer downtown during the protest and shouting obscenities at police.
Officers are not allowed to drink on duty, and Osmundson was not authorized to dress in plainclothes to infiltrate protest crowds, according to police. Osmundson’s actions put people in “jeopardy” and were contrary to “good order and morale,” according to the internal investigation.
Wess Philome, an organizer with OneFargo, a group pushing for police reform, believes the people facing riot charges should not be prosecuted because of Osmundson’s actions.
“We want to get to the bottom of May 30, so we can understand as a community where we all went wrong. Everyone who made a mistake that day needs to be held accountable including Fargo PD, and there’s nothing wrong with that,” Philome told a crowd of hundreds during the Juneteenth demonstration in Island Park.