Man sues Cheyenne police over DUI testing
CHEYENNE — A Cheyenne man is suing three Cheyenne police officers in federal court for allegedly violating his civil rights, after a municipal court judge ruled that one of the officers lied to a judge about the man’s refusal to take a blood alcohol level test.
Michael A. Sena of Cheyenne brought the suit against Officer Alberto Perea, Officer Damon Hall and Sgt. James Peterson, who are all currently employed by the Cheyenne Police Department. The suit also includes the city of Cheyenne as a defendant.
On Oct. 30, 2019, the CPD officers arrested Sena on suspicion of driving under the influ- ence of alcohol after testing his blood alcohol level with a Breathalyzer. In an amended complaint filed in February, Sena alleges he then consented to a urine test, but refused a blood test.
After that, Sena claims he was used “as a training object so that an inexperienced officer could learn how to obtain a telephone search warrant.” The same officer, Perea, gave a judge false information under oath, and, while being observed by Hall and Peterson, said Sena had refused both a urine and blood test.
On March 30, 2020, Cheyenne Municipal Court Judge Tony Ross ordered the resulting blood draw be suppressed as evidence in Sena’s DUI case, according to court documents. In the order, Ross said the blood draw was invalid because Officer Perea failed to give Sena the option to perform either a urine or blood test, as required by state statute, and was not truthful in his conversation with the judge to get the search warrant for the forced blood draw.
The DUI charge was dismissed for insufficient evidence, and Sena paid a $750 fine for careless driving, according to a municipal court clerk.
Under Wyoming statute, “if the officer directs that the (blood alcohol content) test be of the person’s blood or urine, the person may choose whether the test shall be of blood or urine.” According to the complaint, Wyoming law and CPD procedure say a warrant to obtain a blood draw is only allowed when a person has also refused to give a urine sample.
The officers then used the invalid search warrant to take Sena to the hospital against his will, and physically assaulted him in an effort to take a blood sample without his consent, according to the complaint, which alleges that the officers’ actions violated Sena’s Fourth Amendment rights protecting against unreasonable search and seizure.
Without a valid search warrant, the involuntary blood draw is considered unreasonable search and seizure based on clearly established law, the complaint says.
Sena’s 14th Amendment right to due process was also violated, the complaint says, because although Sena does not have a criminal history, “the officers treated him differently from other citizens in similar situations, solely because members of Sena’s family previously had committed crimes in which Michael Sena had no involvement.”
The amended complaint also alleges that inadequate training by the Cheyenne Police Department, and therefore the city of Cheyenne, led to the invalid search warrant and resulting violations of Sena’s civil rights. Sena and his attorneys added the city to the lawsuit following the officers’ answers to the initial complaint, saying the officers “directly or indirectly have asserted that their deprivation of Sena’s civil rights was a result of the unconstitutional policies and procedures of, and the inadequate training provided by, the city of Cheyenne as implemented by the Cheyenne Police Department.”
Sena is seeking $500,000 in damages, or a greater amount determined at trial.
In an answer to the amended complaint filed in March, the officers denied the allegations and any violation of state or federal law, saying Perea “lawfully and properly requested a search warrant” from the judge. They admitted Sena refused a blood test, but denied that he consented to a breath or urine test. Further, they argued, qualified immunity protects them from Sena’s claims.
Attorneys representing the city denied the allegations against it in an answer filed in April, also claiming qualified immunity.
A bench trial is currently scheduled for 9 a.m. April 11 before Chief U.S. District Court Judge Scott W. Skavdahl in Casper.
“My client is looking forward to his day in court,” said Ryan Wright, a Cheyenne attorney representing Sena in the case. “We urge anyone else who the Cheyenne Police Department forced to do involuntary medical procedures to come forward.”
CPD spokesman Alex Farkas said the department could not comment on pending litigation. Requests for comment from Senior Assistant Attorney General Timothy Miller, who is rep- resenting the officers, and Craig Silva and Amy Iberlin, attorneys representing the city of Cheyenne, were not returned in time for this story.
Sena, through his attorneys, Wright and C.M. Aron, filed a motion Aug. 16 to disqualify Miller as counsel for the officers. They argued it was a conflict of interest for Miller to represent all three of the officers because “they have different culpability, defenses and potential liability.” Because of this, the motion argues, Miller would have to pit the defendants against one another, leading to possible inadequate representation.
The motion also claims that Sgt. Peterson may have a current license to practice law in Wyoming, meaning he would presumably have an understanding of the law.
According to this motion, Perea testified at the suppression hearing in Cheyenne Municipal Court that Sena had, in fact, asked for a breath or urine test “dozens of times,” but that he didn’t inform the judge of that when he was requesting the search warrant to forcibly draw Sena’s blood.
Perea, Peterson and Hall, through Miller, filed a memorandum in opposition to the motion to disqualify on Aug. 26, saying Sena does not have standing to disqualify Miller because of a sup- posed “breach of a duty to defendants with respect to conflicts of interest,” and that there is no conflict of interest among the officers.
It also argues that, based on audio and video of the events, “Perea did not lie to Judge Moran, the search warrant was valid, the blood draw was proper, and it is Sena who brought up his family’s apparent criminal history.”
“The recordings also show the roles played by the officers. This is not a ‘he said, she said’ case,” the memorandum says.
On Sept. 22, Sena’s attorneys requested a hearing on the motion to disqualify Miller. As of Friday, PACER, the federal online court records database, did not show an answer to this re- quest.
On the evening of Oct. 30, 2019, officers were dispatched to the 3900 block of East Pershing Boulevard for a report of a vehicle stuck in a snowbank. Witnesses said the driver, Sena, had left the scene on foot. He was later stopped by law enforcement at the intersection of Cheyenne Street and McCann Avenue.
Perea asked Sena to perform field sobriety tests, and Sena complied with some of them, the complaint says. Perea then tested Sena with a Breathalyzer. The machine detected alcohol, and Sena was arrested and put in the back of Perea’s patrol vehicle.
After being read his rights, Sena agreed to provide either a breath or urine sample to further test his blood alcohol level, telling Perea he did not consent to a blood test, according to the complaint. He said he was “not good with needles and had anxiety about providing a blood draw,” and “agreed numerous times” to another breath test or a urine sample.
Despite this, the complaint says the officers treated Sena’s statements as a refusal, with Sgt. Peterson telling Sena they would get a warrant to forcibly take a blood sample.
Peterson and Officer Perea then used to the opportunity to train Perea to obtain a search warrant by telephone, according the complaint. Perea called then-Municipal Judge Mark Moran and said, under oath, that Sena had repeatedly refused to voluntarily take any blood alcohol level test, the complaint says. Moran then allowed the search warrant to be issued.
After obtaining the search warrant, Perea, Hall and Peterson “forcibly held and constrained” Sena while his blood was drawn, with Hall threatening to put his knee on Sena’s neck to stop him from resisting the blood draw, according to the complaint.
“The harm threatened by Officer Hall was outrageous conduct under the circumstances, intending the same use of force that was widely known to have caused the death of a detained person in another state and led to civil unrest throughout the nation,” the complaint says, referring to the police killing of George Floyd in Minneapolis and what followed after a video of the incident became public.
The complaint also alleges that the officers “treated (Sena) with harshness and disrespect because of their disapproval of the past criminal conduct by other members of his family,” which Sena was not involved with. The officers allegedly spoke with Sena about these past criminal acts during their interactions with him on Oct. 30 and 31, 2019.