Former Nye sheriff’s candidate sues over March arrest

By Steve Green

Monday, Oct. 18, 2010 | 11:51 a.m.

There's more drama in Nye County politics, law enforcement and government, with former sheriff's candidate Ted Holmes now suing the county and four officials over his March arrest.

An attorney for Holmes, whose full name is Robert Ted Holmes, filed the civil rights complaint Friday in U.S. District Court in Las Vegas.

The suit alleges Holmes' arrest March 12 on charges of impersonating an officer and resisting arrest caused him to lose in the June primary election and violated his civil rights.

A Nye County Sheriff's Office press release on the arrest said an out-of-state law enforcement officer who was in Pahrump on official business was approached by Holmes at the Pahrump Nugget casino.

The officer reported that Holmes flashed some sort of "deputy" badge at him and advised him he was committing a crime by having his gun visible with a badge from another state, the sheriff's office said at the time.

Sheriff's detectives obtained a search warrant for Holmes’ badge and wallet and recovered those items, but only after he obstructed and resisted those efforts, the sheriff's office said at the time.

The officer in the casino incident was later identified as Jeffersonville, Ind., officer Joshua Schiller, who according to the lawsuit had claimed that Holmes had detained him and showed him a sheriff's badge that led Schiller to believe that Holmes was a law enforcement officer and had some authority to detain Schiller.

Holmes, in his lawsuit, sees things differently.

The retired deputy sheriff from Riverside County, Calif., and former Navy SEAL says that on the day of his arrest, he attended a political breakfast at the casino and that afterwards he and Pahrump Town Board Member Frank Mauricio were walking in the parking lot when they saw a man with a badge and a gun. Holmes said he was aware of reports of a person impersonating a law enforcement officer or federal agent in Pahrump so he and Mauricio approached the man to talk with him.

"The unknown man became very agitated and argued with the plaintiff about 'H.R. 218: The Law Enforcement Officers Safety Act of 2004.' The plaintiff identified himself by name and showed the unknown man his retirement badge and identification, which is a common practice with retired and active law enforcement. The unknown man did not reciprocate. The plaintiff then left the casino. The plaintiff at no time ever identified himself as active law enforcement," Holmes' lawsuit charges.

Holmes says in the suit that later in the day he received a call from Nye County Detective David Boruchowitz "stating that he wanted to meet with plaintiff concerning a possible endorsement by the law enforcement union of Nye County."

That turned out to be a ruse, the lawsuit charges, as Boruchowitz and two officers who showed up at Holmes' apartment at his helicopter hangar said they were not there on union business and instead had a warrant for Holmes' wallet.

"At no time did Boruchowitz produce a warrant although the plaintiff requested to see the warrant. The plaintiff then instructed Boruchowitz to leave his apartment if he did not have a warrant. Thereafter Boruchowitz and another officer grabbed the plaintiff and forcefully handcuffed the plaintiff while yelling for another officer to `taze the plaintiff,'" the lawsuit charges. "At the said time, the plaintiff was bent over and not resisting Boruchowitz's excessive force and outrageous conduct. The plaintiff then stated to the other officer, `you don't want to taze me.' The other officer did not taze the plaintiff. The plaintiff was not resisting the illegal actions of Boruchowitz."

"Prior to the arrest of plaintiff, the county of Nye by and through its sheriff, Anthony DeMeo, developed and maintained policies or customs exhibiting deliberate indifference to the constitutional rights of citizens and residents running for political office against the elected sheriff of the county of Nye. The said de facto policy was intended to retaliate against individuals, including the plaintiff, who exercise their First Amendment right to publicly criticize the sheriff and his department and that ultimately the plaintiff was arrested without probable cause because he was considered a threat to DeMeo's re-election," the lawsuit alleges.

The lawsuit, which charges violations of Holmes' rights under the First (free speech), Fourth (illegal search and seizure) and 14th Amendments (due process, equal protection) to the U.S. Constitution, alleges Nye County supervisors have been aware of these policies in the sheriff's office and have sanctioned them.

Named as defendants in Friday's lawsuit were Nye County, DeMeo, Assistant Sheriff Richard Marshall, District Attorney investigator John Marotta and Boruchowitz.

Marshall on Monday said the "lawsuit is without merit." An audio recording of the arrest was made by Boruchowitz is available on YouTube and "stands for itself," Marshall said.

The audio shows that Boruchowitz told Holmes he had a warrant for his wallet. After an argument over whether the Indiana officer had the right to wear the badge and openly carry the gun in Nevada; Holmes initially told investigators to leave and they could not have his wallet, and there was talk of a Taser as Holmes was not cooperating and Boruchowitz was concerned that Holmes was reaching for a weapon.

The lawsuit follows news last week that Nye County District Attorney Bob Beckett will leave office two months early and undergo alcohol counseling in a plea agreement.

A plea agreement was reached with Beckett to resolve concerns about the county bad check program as well as Beckett's September arrest on drunken driving charges, the Pahrump Valley Times reported.

Potential charges against Beckett over irregularities with the county’s bad check program were negotiated down to a single misdemeanor for interfering with public official, the newspaper reported. The charge involves delays in submitting the program’s financial records to the treasurer’s office, the newspaper said.

Marshall said Beckett had declined to prosecute the charges against Holmes, but that it's the sheriff's office's position that the case is still pending and whoever replaces Beckett can review the charges for possible prosecution.

Earlier, a special prosecutor appointed by Beckett had filed charges against Boruchowitz related to the Holmes incident and other incidents, but those charges were dismissed earlier this month.

"Det. David Boruchowitz performed his job lawfully, that was acknowledged by the court," DeMeo said in an Oct. 8 press release.