Attorney General Overstepped Authority in Hospital Incident, Critics Say

HELENA — A growing chorus of critics say Austin Knudsen has been overstepping his legal authority as Montana’s Attorney General, a criticism that was renewed this week when news broke that Knudsen’s office dispatched a Montana Highway Patrol officer to St. Peter’s Health hospital in Helena.

Local law enforcement and former DOJ officials say the state highway patrol has no law enforcement jurisdiction beyond traffic-related matters unless local authorities request their assistance. In the matter that gained widespread attention this week, no such request was made. 

The Oct. 12 incident, which was first reported by Lee newspapers’ State News Bureau, is evidence, some sheriffs and county prosecutors say, of a pattern of whittling law enforcement authority away from local law enforcement agencies. 

In an interview Thursday, Knudsen, a Republican, vehemently dismissed that suggestion as “absolute, utter nonsense.”

While one former sheriff chalked up the Oct. 12 incident to the “inexperience” of a new attorney general seeking to provide “excellent service,” other longtime law enforcement officials are taking a dimmer view.  

“The Republican Party has always said, ‘this is local control and sheriffs should be running the show,’ and now they’re pushing state police,” former Gallatin County Sheriff Jim Cashell said Thursday in response to questions about the incident at St. Peter’s Health. “The highway patrol had no jurisdiction in that. The attorney general is overstepping his bounds.”

Meanwhile, on Thursday, the top-ranking Democrats in the state House and Senate called on House Speaker Wylie Galt and Senate President Mark Blasdel, both Republicans, to appoint a special counsel to investigate the “disturbing series of actions on the part of Attorney General Austin Knudsen and his use of state law enforcement resources at the Montana Department of Justice.”

According to the State News Bureau’s reporting, Knudsen sent a highway patrol officer to St. Peter’s to investigate claims made by family members of a woman hospitalized with COVID-19 that the patient was mistreated by hospital staff. The family was reportedly upset that hospital staff refused to treat the patient with ivermectin. Other allegations, according to Knudsen, included claims that the family was denied access to the patient, and that the patient was denied access to legal documents. 

Neither the U.S. Food and Drug Administration nor the U.S. Centers for Disease Control have approved ivermectin as a treatment for COVID-19.

Hospital officials released a statement saying several hospital staffers treating the patient were “harassed and threatened by three public officials.”

“These officials have no medical training or experience, yet they were insisting our providers give treatments for COVID-19 that are not authorized, clinically approved, or within the guidelines established by the FDA and the CDC,” the statement read. “In addition, they threatened to use their position of power to force our doctors and nurses to provide this care.” 

The identity of the three officials has not been released. 

Knudsen confirmed that he personally contacted hospital officials and sent a highway patrol officer to St. Peter’s to investigate the allegations of patient mistreatment. 

“It all happened very fast,” Knudsen told Montana Free Press in an interview Thursday. 

Knudsen said he was out of town when he was notified of the allegations that a patient was being mistreated or having her rights violated by St. Peter’s Health staff. Knudsen said those allegations reached him late at night through Chief Deputy Attorney General Kris Hansen. Knudsen said he had no personal contact with the family of the patient, but that Hansen had received a call from a family member. 

“We had an allegation that there was criminal activity going on, that someone was being held against their will and that they were being denied access to — it’s still a little unclear if it was access to a lawyer or it was access to legal documents,” Knudsen said. “That’s when it reached me and I, you know, I’m not going to sit around and worry about who, politically, do I need to check the box on?” 

Knudsen said a highway patrol officer in the area was dispatched to go to the hospital to get more information.

“There was never any talk about running down there and arresting anybody, but we knew we needed to get some more information and we had some family who were interested in talking about what they believe was some criminal activity,” Knudsen said. “So we knew we needed a report. So we had a decorated trooper close … that was the calculus.” 

According to Knudsen’s spokesman, Kyler Nerison, the responding patrol officer did not enter the hospital or speak with any hospital staff, but spoke with the patient’s family outside. 

According to state law, highway patrol jurisdiction is limited to traffic-related incidents on or adjacent to highways unless the officer witnesses a crime, or unless local law enforcement officials who have appropriate jurisdiction request assistance from the state. 

The Division of Criminal Investigation is the state Department of Justice’s investigation arm, and is also limited in its jurisdiction by state law, which says DCI agents “shall provide investigative assistance to city, county, state, and federal law enforcement agencies at their request.” 

According to Lewis and Clark County law enforcement officials, no such request was made. 

The Oct. 12 incident comes in the wake of two other high-profile instances this year in which the attorney general intervened without invitation in local law enforcement activities. 

In August, Knudsen ordered Lewis and Clark County Attorney Leo Gallagher, a Democrat, to drop two gun-related charges against a man accused of assaulting a restaurant worker after the employee told the customer he was required to wear a face mask. 

Gallagher refused to drop the charges and told the Department of Justice to take over the prosecution if it wanted to dictate the terms.  

Nerison described Gallagher’s handling of the case as a “political prosecution.” 

Earlier, just weeks after taking office in January, Knudsen ordered Gallatin County Attorney Marty Lambert, a Republican, to dismiss a case against Bozeman’s Rocking R Bar for violating a 10 p.m. closing time ordered by the county health board to stem the spread of COVID-19.

Asked Thursday if he’s concerned about the attorney general encroaching into local law enforcement matters, Gallagher said, “Yes, I am.” 

“I get local law enforcement officers in my office frequently who have interactions with St. Peter’s hospital, and those interactions are always cordial and professional,” Gallagher said. “I’m concerned that this investigation technique could adversely affect law enforcement’s relationship with the hospital.”

Knudsen said that if people are surprised to see the attorney general getting involved in local prosecutorial actions, that’s probably because they are used to “do-nothing attorney generals.” 

“I think people probably aren’t used to seeing the attorney general in the state of Montana actually taking some action and doing anything,” Knudsen said. “And you know, if that’s the reputation that I have, I’m OK with that. I’m absolutely more active. I’m absolutely more hands-on and certainly probably more aggressive than anybody has seen.” 

Knudsen dismissed suggestions that his office is usurping local control over law enforcement matters. He said that when the law grants the attorney general authorities, he intends to exercise them. However, he said he doesn’t want to take any law enforcement powers from local sheriffs. 

“I strongly believe in their local power and the fact that they are accountable to the local voters, but there are instances in state law where the attorney general is given certain authorities over county attorneys, over hospitals, like this,” Knudsen said. “And yeah, I think it’s probably something that no one has actually seen the attorney general actually use before. But, you know, I’m not interested in expanding on anything. This is an authority that exists.”

Gallagher’s fellow elected county law enforcement official, Lewis and Clark County Sheriff Leo Dutton, also a Democrat, expressed his own concerns about jurisdictional overreach by the attorney general, and he said he is planning to meet with Knudsen soon. 

“I’ve had my differences with Austin, but we’ve met, we’ve talked them out, and he’s always been approachable,” Dutton said. 

Dutton said he was shocked that Knudsen dispatched a highway patrol officer without a request for assistance from local law enforcement. 

“He ran on a campaign of constitutional understanding and always having the back of local sheriffs. That’s what I want to talk to him about,” Dutton said. 

Since the Montana Highway Patrol’s inception, there’s always been tension between the only uniformed state law enforcement agency and local law enforcement officials. 

“This is an important discussion to have,” said former Gallatin County Sheriff Bill Slaughter, who retired in 2001 after 28 years in law enforcement. 

Slaughter, who served as director of the Montana Department of Corrections under former governors Judy Martz, a Republican, and Brian Schweitzer, a Democrat, has long been a staunch critic of the Montana Highway Patrol. 

He said he refers to the agency’s patrol officers as “AAA with a gun.” 

“As sheriff, I’m elected. My jurisdiction is clear,” Slaughter said in an interview Wednesday. “As sheriff, I’m elected by the people who are making the calls and complaints, and we’re responding to them. With the highway patrol, who the hell are you? You are hired by the state of Montana to do traffic enforcement.”

Slaughter, along with other current and former law enforcement officials, have long warned about jurisdictional creep of the highway patrol into what they fear would be a “state police force.” 

Regarding the incident in Helena last week, Slaughter said he’s willing to give Knudsen the benefit of the doubt. He said he believes inexperience and a desire to help a constituent in a difficult situation likely led Knudsen to make the wrong call. 

“You’ve got a new AG, and he’s a good guy who wants to give excellent service to his constituents,” Slaughter said. “In this case, what’s the crime? There is no crime, it’s a civil issue. In civil matters, you want to take a deep breath and consult with the county attorney. That’s the guy who makes those decisions.”

The Montana Highway Patrol was formed in 1935 in response to a growing number of traffic fatalities occurring on the state’s relatively new highway system. 

The first officers selected for the newly created agency were authorized to enforce 11 traffic laws. However, according to the agency’s website, their main focus was to educate and assist the public in understanding and obeying traffic laws. 

Randall Yaeger — who served on the highway patrol from 1984 until retiring as the agency’s chief in 2004 — breaks the job of highway patrol officers into what he calls the “three Es.” 

“Our job is basically enforcement, education, and engineering,” Yaeger said. 

In 1943 the Montana Legislature codified the rules governing the highway patrol and set jurisdictional boundaries that govern the agency to this day. 

Yaeger said from the beginning there was concern that the patrol would eventually become a state police force. 

Those concerns widened after the Highway Patrol Board was eliminated as part of the Executive Reorganization Act of 1971 and the agency was placed under the auspices of the attorney general. 

Sheriff Dutton said the incident at St. Peter’s Health has reignited those concerns among some sheriffs who suspect the new attorney general is testing the boundaries of state policing. 

“For 35 years sheriffs have been concerned about a state agency becoming a state police force, which nullifies the authority of the sheriff,” Dutton said. 

Former Gallatin County Sheriff Cashell said the concern among sheriffs regarding a state police force is that a central political figure in Helena — namely, the attorney general — would have the power to appoint district captains who aren’t accountable to voters in the areas where they would have broad jurisdiction.  

“Whoever is going to be that individual that’s in charge of that particular area is going to be someone chosen from the top, the state police headquarters,” Cashell said. “It’s not decided upon by the citizens. They have no say.”

Dutton said locally elected sheriffs throughout the state, regardless of their political affiliations, are united in the notion that they are the “last bastion of local protection that reports directly to our citizen bosses.” 

Dutton said he hopes to have a productive conversation with Knudsen to reinforce that position. 

“I don’t believe he intentionally set out to break the law or to have a state police, but things happened that indicate that,” Dutton said. “That’s why we want to visit.”

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.