MINOT, N.D. — In early June, Todd Osmundson, then a deputy chief with the Fargo Police Department, made the astoundingly poor choice to infiltrate, in plain clothes, a rowdy protest inspired by the death of George Floyd in Minneapolis.
As part of is ill-conceived cover, Osmundson chose to carry around what he initially claimed was an empty beer can (he later admitted he was drinking beer) and shout expletives at his fellow officers.
I was the first to report on Osmundson's conduct in a June 3 column, and by June 4, Osmundson had resigned.
The Fargo Police Department investigated Osmundson's conduct. The resulting report found that Osmundson's actions had "created significant risk to the public, himself and other officers."
Yet, despite the findings in this report, when questioned Monday, June 29, Fargo Police Chief David Todd, who is also a long-time friend of Osmundson's, stated that his department would not be forwarding this matter on to prosecutors. Or anyone else, for that matter.
He told reporter April Baumgarten that 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."
"Thus, unless there is further information developed, this will continue to stay in the category of an employment issue that has been addressed, and there will be no further review for possible charges against Todd Osmundson from the events on May 30, 2020," Todd continued.
Having made that decision, Todd is done talking about the matter. "Fargo Police spokeswoman Jessica Schindeldecker said Todd would not make any further statements on the matter," Baumgarten reports.
The decision about criminal charges isn't Todd's to make, and not just because of his personal relationship with Osmundson. Todd is a police officer. He is not a lawyer. It is his job to investigate potential crimes, and detain potential criminals, and forward the facts on to a state's attorney who decides on charges.
This isn't just a philosophical argument. This is the law in the city of Fargo and the state of North Dakota.
Osmundson has admitted to carrying an alcoholic beverage around while ostensibly on duty, as well as participating in what Fargo police officials have routinely described as an unlawful protest.
Section 5-0202 of Fargo's Municipal Ordinance states, "It shall be the duty of the police force of the city and of each and every policeman and policewomen to notice and inquire diligently into and report to the board of city commissioners, chief of police, and city attorney all violations of the city ordinances, violations of the criminal laws of the state, and breaches of the peace and to make complaint against the person or persons guilty thereof."
Section 44-04-06 of the North Dakota Century Code: "The state's attorney, assistant state's attorney, sheriff, deputy sheriff, or peace officer of any county, township, city in this state, having any evidence, knowledge, or notice of any violation of any liquor, gambling, cigarette, snuff, pool hall, bawdyhouse, prostitution, white slave, or habit-forming drug laws of North Dakota shall investigate and seek evidence of the violation and the names of witnesses by whom the violation may be proved. Any peace officer shall report the information to the state's attorney of the county in which the violation occurs and shall assist the state's attorney in the prosecution of the violators of said laws."
It may be there isn't enough evidence of criminal wrongdoing to get a conviction against Osmundson. And, frankly, this may well be an instance where some prosecutorial discretion is warranted. Osmundson has copped to his actions. He's resigned from the police force. Does prosecution serve the public interest? I'm willing to listen to arguments that it does not.
But that decision isn't up to the police chief.
Also, beyond the criminal justice system, there are professional requirements for police officers to report conduct like Osmundson's to their standards board. Section 109-02-01-05 of North Dakota's administrative code states that it is "the responsibility of each agency to investigate and submit a written report" of any "criminal offense the board may determine has a direct bearing on the applicant's ability to serve as a peace officer" to the state Peace Officer's Standards and Training Board.
This isn't the first time the Fargo Police Department has gone beyond the duties of law enforcement and into the realm of prosecutors. Last year Tyler Alexander Patel accused Fargo police officers of using excessive force against him after he was shot in the eye by a pepper ball. The Fargo police investigated themselves, found no wrongdoing, and told the public the matter would end there.
This from Baumgarten's report at the time: "Because the internal investigation cleared the officers of wrongdoing, police do not plan to forward the case to the Cass County State's Attorney's Office for prosecutors to review for possible criminal charges against the officers, police spokeswoman Jessica Schindeldecker said."
Maybe that's the right outcome for the situation, but do we want cops investigating themselves when there is a question about their conduct?
Beyond that, do we want cops to act as prosecutors, too?
We're talking a lot about law enforcement reform these days and for good reason. Perhaps one improvement we could look at is a requirement that any inquiry into the conduct of law enforcement be conducted by an entity outside of the department in question.
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at email@example.com.