Last week WDAY reported on three Clay County sheriff candidates having disciplinary action in their pasts. It’s the nature of running for an elected office— expect things from the past to surface. Such is also the case for Burleigh County sheriff candidate Major Kelly Leben.

According to multiple reports written for the Nelson County Sheriff’s Department on Monday, April 14, 2014, Leben was involved in an incident with his 14-year-old nephew at a birthday party in McVille just two days prior. This resulted in the nephew receiving medical attention at Mercy Hospital in Devils Lake.

According to documentation provided to The Minuteman, there were four handwritten accounts filed with the complaint in Nelson County that describe the events— one from the nephew himself (Brant Thomson), his mother (Shayla Thomson), his father (Jamie Thomson), and his grandfather (Dale Quam— who is a retired Sheriff for Nelson County). All four corroborate each other, but because Shayla’s is the most descriptive and well-written, I will use hers to illustrate the events of that day.

At 5pm, about 30-40 people had gathered at the Senior Hall in McVille to celebrate Shayla’s grandfather’s 100th birthday. While visiting at the side of a table:

“Kelly Leben came up behind Brant and grabbed the tops of his shoulders (the muscle part) and squeezed really hard. Brant told Kelly, ‘Ow, that hurts!’ Brant quickly grabbed Kelly’s hand to remove it from his shoulder. Kelly proceeded to get Brant in a head lock. Stacey Leben, Kelly’s wife, told Kelly to quit before someone gets hurt. Kelly refused. I told Brant to quit and Brant replied, ‘I’m not doing anything!’ “Stacey again walked up to Kelly and said, ‘You’re wearing glasses and you have a bad shoulder.’ Kelly kept Brant in a head lock with one arm and removed his glasses with the other and handed them to Stacey. Continuing with the head lock, Kelly brought Brant down to his knees and Brant was frantically trying to get free. Kelly kept telling Brant, ‘Say uncle. Say uncle.’ Stacey grabbed her camera and got down on her knees to take pictures of Brant. Brant’s face was red and was obvious he was upset. While Stacey was taking pictures she said, ‘Aww, poor Brant.’ Stacey then gave him a pouty lip. “Brant pushed himself up against Kelly’s body and they both fell backwards. Kelly then put Brant in a choke hold. One arm around Brant’s neck, the other on the back of his head pushing forward. Brant was struggling to free himself. Brant’s face was purple and his hands started to go limp. The choke hold prevented Brant from breathing at all. Brant was starting to pass out. Brant started kicking his legs. “Jamie Thomson yelled, ‘Kelly, he can’t breathe!’ Jamie then pushed Kelly out of the way. Brant layed on the floor gasping for air. I told Kelly, ‘It’s pretty hard to talk or say uncle when you can’t breathe.’ Kelly said, ‘Shayla, don’t start with me.’ Jamie and Ashlynn (victim’s sister) was trying to help Brant get his breath back. Kelly kept trying to assure me that they were ‘just playing’. “Brant started complaining about pain in his neck/throat and that his leg was numb. He stated to me that he couldn’t feel his leg at all. He also stated to me that he had pain in his back too. Stacey walked over to Brant and tried to force Brant to stand up. I heard her tell Brant, ‘You need to stand up so everyone knows your OK.’ Brant stated, ‘I can’t.’ Kelly kept apologizing to Jamie and Brant. Kelly kept saying, ‘I’m sorry, Brant. Do you forgive me?’ Brant could not answer Kelly because he was still trying to catch his breath. “After about 10-15 minutes of laying on the floor and trying to breath, Jamie and Ashlynn helped Brant to his feet. Once he stood up he hugged Ashlynn and told her his neck and back really hurt and he couldn’t feel his leg. Ashlynn got him a dish towel with ice in it and placed it on the back of his neck. Brant then sat down in a chair.”

According to Shayla, in the events that followed, a friend of Brant offered to go outside with him to get some “fresh air”. The offer was accepted and the friend helped him to his feet and assisted him outside. It was finally decided by Jamie and Shayla to take Brant to the emergency room at Mercy Hospital in Devils Lake. In Shayla’s report, she says:

“Kelly told Jamie and I that if we felt that we needed to take Brant to the Dr. or chiropractor that he would pay for his medial bills. Kelly also said that all we needed to do was send him the bill. “Once we got Brant in my truck and ready to leave, Kelly walked out of the Senior Hall and up to the drivers side window. I rolled my window down and Kelly stated again that he would pay for the medial bills and that we needed to let him know what we find out from the doctor.”

Upon arriving at the hospital by 6:45pm – and still complaining of pain in his neck and back with numbness in his leg – the ER staff had a wheelchair ready for Brant. A shot of Toradol was administered for pain. While x-rays were taken, Brant also complained of “tingling” in his hand. The doctor told Shayla that he had a “cervical thoracic strain”, said he would be sore for a few days, and instructed that he not engage in “physical activity, no track, no running or jumping”.

In the days that followed, Shayla’s account says Brant not only continued to complain of the pain, but he had to be picked up from school because “his back hurt so bad that he couldn’t even sit”. Leben also messaged Brant and expressed being sorry and offered to buy him supper, but Brant told his mother he didn’t “want to see or talk to Kelly”.

With the complaint filed, the Case Report from Nelson County Sheriff’s Department shows that Kelly Leben was facing the charge of Aggravated Assault. But on April 19, 2014 Deputy Jason Koras records that, “Shayla emailed… indicating that they decided not to press charges.”

Why did Brant’s parents decide against pursuing charges against Leben? In a recent letter to the North Dakota Post Board, the now 18-year-old Brant says:

“… my mother originally filed charges in Nelson County, but after discussion of my medical bills being paid by my assailant, my parents handled this as a family matter and accepted payment for my first round of medical bills as my assailant is also my uncle.”

In case you’re not familiar with the Post Board, it’s described here. In a nutshell, not only does the board have authority over standards, training, and certification of North Dakota’s peace officers, but they can also “take adverse license action for violations of state and federal laws and the rules of the board”.

Undoubtedly, there will be many that will chalk this case up to horseplay that got a bit out of hand. But let’s not forget that the kid did end up in the ER— after Leben was told to stop more than once. In addition to that, I’m told he still suffers from the effects of it today— including being denied entry into the Marines due to the injury. Even beyond that, there’s a large range of things to consider in this case:

Why didn’t Nelson County act immediately? While the Case Report shows Aggravated Assault, North Dakota law would clearly consider this to have also been a potential case of Domestic Violence— in which the law also says that law enforcement “shall presume that arresting the person is the appropriate response”. Yet, between April 14th and April 19th, they took no action— despite the fact Brant had sustained injuries as a result of Leben’s actions. Stacey Leben is a school social worker, which carries a responsibility of mandatory reporting. Did she file a report with the Bismarck Public School system? Mercy Hospital in Devils Lake also carries a responsibility of mandatory reporting. Did they file one? Was Burleigh County Sheriff Pat Heinert aware of the complaint filed against Leben? And if so, was there an internal investigation done? Even after Shayla Tomson decided not to pursue the charges, was there an obligation on the part of Nelson County to conduct an investigation anyhow since Brant was a minor? Should this somehow disqualify Kelly Leben from consideration in the minds of voters to be Burleigh County Sheriff?

That last question is a significant one. If the events transpired as they are written, in the four reports submitted to Nelson County Sheriff’s Department, then it’s obvious that Kelly Leben refused to stop the use of physical force on another person after it was made clear – more than once – that he should stop. That brings with it very serious implications for a man that is seeking to be the head of Burleigh County Sheriff’s Department.

Unfortunately, issues relating to law enforcement and choke holds aren’t completely unheard of. Just last month, it was reported that the New York police officer responsible for the death of Eric Garner in 2014 will face internal disciplinary action. A Louisiana man died last October after refusing to cooperate with officers— one of which put him in a choke hold. But in the case of Brant Tomson, he wasn’t the subject of an arrest and his “assailant” was a law enforcement officer who also happens to be his uncle.

In his letter to the North Dakota Post Board, Brant Thomson said this:

“I feel no justice was served in this domestic assault and state law was not properly followed. This case should have went to a state’s attorney, post board and an internal investigation should have been conducted. No one stood to protect me as a child… “As I am now an adult, I am voicing my concerns as an adult resident of the State of North Dakota. I am asking for a complete and thorough investigation be opened on Major Kelly Leben, as every licensed law enforcement officer needs to be held to a higher standard which is in your very own code of ethics…” “No one in law enforcement should ever get away with a domestic assault. This complaint should be handled no differently than other officers accused of violating criminal laws and suspended until a complete investigation is concluded… “I am prepared to answer your questions in an internal investigation and feel Kelly Leben is a liability to all law enforcement if nothing is done about his reckless temperament.”

The next meeting of the Post Board is set to take place on Wednesday, August 15th, in Minot. We’ll know then whether they choose to address Brant Thomson’s request. If things remain as they are, the voters in Burleigh County will ultimately decide in November’s general election whether the alleged actions of Kelly Leben are problematic for them or not.

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