The North Dakota Peace Officers and Standards Board decided Thursday Burleigh County Sheriff Kelly Leben wasn’t in violation of the professional code of conduct following allegations of a 2014 assault.
The POST Board voted 6-1 in Leben’s favor. Grand Forks County Commissioner Tom Falck, representing the North Dakota Association of Counties on the board, was the lone dissenter.
In April 2014, the Nelson County Sheriff's Department investigated a report from Leben's sister-in-law involving wrestling at a family event in McVille that injured Leben's then 14-year-old nephew, Brant Thomson.
“I tend to believe Brant,” Falck said. “Somewhere along the line, I’m not sure where, the system failed Brant.”
Falck said the confrontation is one that should have never happened with a trained law enforcement officer.
“At the very minimum, it was bad judgement to allow this to get to where it got,” he said
Thomson testified before the board that he arrived at a family birthday party with a friend after a wrestling match. While he talked to Leben, Leben started picking on him, jabbing him below the collarbone. Thomson said he told Leben to “knock it off “ several times. When Leben didn’t stop, Thomson became irritated, shoved Leben backward and the pair started wrestling on the floor.
“All of a sudden it went from wrestling to pretty much MMA and he put me in a chokehold,” Thomson said, adding he couldn’t feel his legs and couldn’t breathe.
Afterward Thomson went to the hospital in Devils Lake for injury to his back, which he said still occasionally hurts him.
The 2014 Nelson County investigation concluded after several days with no criminal charges, according to the case report.
"The family asked that it remain a family matter and that charges not be pursued against Mr. Leben," Nelson County State's Attorney Jayme Tenneson told the Tribune. He also said he reviewed the case with the investigator, and "based on the family's request, we didn't believe that the case should move forward."
Thomson told the board, now that he’s 18 and now longer a minor, he decided to bring his allegations to the POST Board, sending an unsigned and then a signed letter to the board. He said he thought the incident “wasn’t right” and “it was shoved underneath the rug.”
Thomson’s father, Jamie Thomson, also offered testimony that varied in a couple ways, saying his son must have misremembered some of the day’s events. He said there had been no wrestling match that day and Leben had been continuously picking on his son throughout the day, more than what was usual in the pair’s teasing relationship. He also said his son had a hard time catching his breath and could "barely walk."
“Brant was like a son to me," Leben said in his testimony about the incident.
He said he tried to be active in his nephew's life, taking him hunting and fishing, but there were tensions within his wife's family that predated their marriage which came into play the day of the incident.
Leben testified Thomson had been sitting in back of the senior center, where the party was held. He said he approached Thomson from behind and was picking on him, grabbing him by the shoulders. He said Thomson stood up and the two of them ended up on the floor wrestling. He said Thomson was on top of him and he had put his arm around Thomson's neck, telling him to "say uncle" to call off the wrestling. When others started yelling that Thomson couldn't breathe, Leben said he let go.
Leben said Thomson has rolled under the table and wouldn't talk to him but offered to pay the bill if the family decided to take Thomson for medical attention.
“I think this was horseplay that probably got a little too rough and not an assault per se,” Law Enforcement Training Academy Lt. Dan Haugen said after making the motion to find Leben not in violation.
Haugen said the differing testimony and questions about whether Thomson was the author of the letter were what drove his vote.
“I'm just glad that now I can get back to focusing on being sheriff,” Leben said after the decision.
Thomson told the Tribune he's not yet sure how he feels about the decision made by the board or whether he'll try to pursue the issue in another manner.