MITCHELL, S.D. -- After a three-day trial that included five hours of jury deliberations, a Davison County jury could not agree on a verdict this week in a case of a Mitchell man facing a charge of obstructing a law officer after refusing to wear a mask during a 2020 school board meeting.
Since the 12-person jury couldn't unanimously decide on a verdict Wednesday evening, Oct. 20, the trial was deemed a "hung jury," deadlocking the case. After being asked by Judge Donna Bucher Wednesday night, State’s Attorney Jim Miskimins said they are seeking a re-trial in January 2022, which would require a new jury selection.
The decision closes the three-day trial of Reed Bender, 38, of Mitchell, who faced a Class 1 misdemeanor charge. As both sides made their final closing arguments, the jury began deliberating Bender’s case that stemmed from a Sept. 14, 2020, Mitchell Board of Education meeting in which Bender refused to wear a mask that resulted in an altercation between him and police officers.
Bender’s attorney, R. Shawn Tornow, argued police officers removed Bender without lawful authority because he said the school's mask mandate wasn't a policy that gave authorities legal grounds to charge someone for violating it.
“Whether they call it a policy, plan or action, none of them have the ability to charge someone with a violation of law. The state failed to give the burden of proof that the mask directive or plan had the force of law,” Tornow said Wednesday at the Davison County Courthouse.
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Tornow pointed to Bender's "peaceful" demeanor at the time officers arrived at the school board meeting to counter the claim that police officers exercised their duty to "preserve the peace" in accordance with state law like the prosecutors alleged. Therefore, Tornow said the officers removal of Bender from the meeting that resulted in the altercation which led Miskimins to seek the obstruction of a law officer charge was created by the officers actions.
“What they cannot do is create the offense,” Tornow emphatically stated during his closing argument. “The officers did not try to deescalate the situation. They went in and gloved up right away, and within 90 seconds, they went after Reed Bender, who wasn’t being disruptive or disorderly as the exhibit (photo of Bender sitting in a chair spread apart from others) shows.”
Mitchell police did not arrest Bender the night he was removed from the meeting, and he was not charged for refusing to wear a mask but for "using or threatening to use violence, force or physical interference or obstacle, intentionally obstruct, impair or hinder the enforcement of the criminal laws or the preservation of the peace by law enforcement officers.”
Considering the officers did not arrest Bender on the evening the incident occurred, Tornow said it disputes state prosecutors' claim that a trespassing crime was also committed to warrant the removal of Bender.
“(Mitchell School District Superintendent Joe) Graves even said he didn’t want to press charges and just wanted him removed. Was anybody charged with trespassing here? No. Were any laws being broken when officers arrived? No, there weren’t,” Tornow said. “So, if they weren't there to enforce the law and rather to preserve the peace, how can a man peacefully sitting in a chair not disturbing the peace give grounds for what the officers did to remove him?”
Addressing the jury in his closing argument on Wednesday, Miskimins said “this case is not about masks.” Rather, Miskimins emphasized the case is about the “rule of law” and “doing what an officer tells you to do.”
Graves testified that he consulted with the school district’s attorney on the basis of whether he had the authority to request officers remove Bender from the meeting for not complying with the mask mandate, which he said the attorney informed him that it did have the force of the law.
“Dr. Graves informed you that the school board has taken a number of actions with different names such as board action, policies and protocols. He said ‘They all have equal weight,’” Miskimins said. “Why does he say that? Because they are all actions voted on by the five members on the board.”
While Graves called the Mitchell Police Division to have Bender removed after his offers to provide him with a mask were refused, he told the officers the school was "not interested in pressing charges.” However, Miskimins pursued the obstruction of a law officer charge shortly after the incident, which led to the trial.
“I did offer (Bender) a mask, and when he declined I informed him he would have to leave. One officer offered a mask and told him if he did not wear a mask he would have to leave. When he refused, they then began to take him by the arms and remove him,” Graves said.
The maximum punishment for the Class 1 misdemeanor Bender was charged with is one year in prison and a fine of up to $2,000, if found guilty.