Jury can't reach verdict in Reed Bender case over charge related to school board meeting mask refusal

Oct. 20—After a three-day trial that included five hours of jury deliberations, a Davison County jury could not agree on a verdict Wednesday 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, the trial was deemed a "hung jury," deadlocking the case and bringing it to a close. After being asked by Judge Donna Bucher Wednesday night, prosecutors said they will seek a re-trial in January 2022.

The decision, announced shortly after 5 p.m., brings to a close three long days related to the Class 1 misdemeanor that Bender, 38, of Mitchell faces. As both sides made their final closing arguments, the jury began deliberating Reed 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 during Wednesday's proceedings at the Davison County Courthouse.

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 State's Attorney Jim 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.

"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, Davison County State's Attorney Jim 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."

As a counter argument to show a crime was being committed and that Bender was obstructing law officers, Miskimins referenced Mitchell Police Officer Niko Arnold's testimony in which he said he believed Bender was committing a trespassing crime for refusing to leave when asked due to not complying with the mask mandate.

"You heard on the audio recording that the School Board couldn't get started because of Reed Bender's actions and antics. You then heard the president of the board tell Mr. Bender, 'To put on a mask or leave.' But what did Bender say, 'No,' and then he refuses to tell leave when Dr. Graves says, 'I'll have to call the police," Miskimins said, noting Bender's raised voice and refusal to leave was disorderly. "His behavior at that point of the meeting was horrible."

Miskimins rejected Tornow's claim that the school board's mask mandate didn't carry legal grounds for the officers to remove Bender due to his decisions not to comply with the mandate, referencing Mitchell School District Superintendent Joe Graves' testimony.

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.

During Tuesday's proceedings, both Mitchell Police officers who removed Bender from the school board meeting testified. When Mitchell Police Officers Arnold and Tyler Urban approached Bender in the library where the meeting was being held, they both agreed that Bender did not appear to be "disorderly."

However, after Bender did not comply with the officers' request to leave the property, Arnold said Bender began to "raise his voice" and become agitated. Bodycam video footage then showed Bender saying "You're going to have to drag me out" in response to the officers' request asking him to leave the school, which is when Arnold said Bender "forcefully pulled." He said his groin area was also hit.

"I removed my Taser and pointed it at him, and he then told me to tase him," Arnold said at Tuesday's proceedings, noting it appeared that Bender was trying to make a scene and get others in the crowd involved. "I tried to place him in handcuffs, but he refused to cooperate."

As the incident moved outside of the MHS building, Urban said Bender called Graves a derogatory name and appeared to be moving toward him. While outside, Tornow said the officers never offered Bender with the option to go back into the meeting with a mask, which claimed was evidence that Bender was being violated of his right to peacefully attend a school board meeting.

Another argument Tornow made centered around video footage and photos of the meeting that showed other attendees not wearing masks in accordance to the school's policy, questioning why they weren't approached in the same manner as Bender was, Tornow said

Miskimins argued there is clear evidence that shows Bender was resisting officers that warranted the charge brought against him, including a photo that shows Bender's hands grabbing an officer's uniform.

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.