Fired deputy sheriff fights criminal charge for failing to serve warrants (2024)

A Lancaster County Sheriff's Office deputy fired for not arresting two people for failing to pay their court fines in their misdemeanor cases is challenging the law he's now accused of violating.

The case could lead to further implications for Ryan Schmuecker, who is facing two counts of neglecting to serve a misdemeanor criminal warrant.

But it also has the potential to change the way warrants for things like unpaid fines are handled.

At a court hearing Friday, his attorney, Sean Brennan, said the warrants he's accused of neglecting to serve didn't qualify because they were "time-pay warrants."

Unlike an arrest warrant, he said, the face of the time-pay warrants didn't command law enforcement to arrest the 40-year-old man and 45-year-old woman who owed a collective $325, one in connection to a misdemeanor theft case and the other in a loitering case.

Brennan said it came down, in part, to whether a time-pay warrant qualified as a legally issued warrant in a criminal case by state statute definition.

He pointed to a statute that says an arrest warrant "shall command the officer to take the accused and bring him or her before the magistrate or court issuing the warrant or some other magistrate having cognizance of the case to be dealt with according to law."

These time-pay warrants don't do that, he said.

Instead, they say the defendant has failed to pay the judgment and costs and "upon arrest," shall either pay, sit out the fines in jail at a rate of $150 per day, be brought before the court to be heard on the failure to pay or sign a personal recognizance bond promising to appear.

"These warrants were not issued for the commission of either a felony or a misdemeanor. They were issued because of unpaid fines," he argued.

"On a felony or a misdemeanor, correct?" County Court Judge C. Jo Peterseninterjected.

Brennan said while the warrants came out of misdemeanor cases, they weren't issued for the commission of a crime.

"They were issued because of unpaid fines," he said.

Peterson asked how those warrants were different than a warrant issued for someone's arrest for violating probation.

Brennan said that could be a legally valid warrant, but it doesn't comply with the statute for neglect to serve a warrant, because it was not issued for the commission of a crime.

The judge said many arrest warrants and bench warrants don't order the people to be held. They routinely allow PR bonds, she said.

Peterson asked if it was his position that if someone was arrested on a warrant that allowed a PR bond that it wasn't a legal warrant.

No, Brennan said, but it doesn't qualify as a legally issued warrant for terms of the criminal statute for neglect to serve a warrant.

"I'm saying that they're not legal warrants for purposes of a criminal prosecution," he said.

Deputy Lancaster County Attorney Don Staggs argued that it's the state's position that the statute authorizing the charge of neglect to serve a warrant referred to "any warrant legally issued by any magistrate."

Peterson asked him to address Brennan's position that these aren't legally issued because they don't on their face contain allegations of a misdemeanor or felony crime.

"Your honor, ultimately, it's the state's position that it's an underlying misdemeanor offense," Staggs said.

When the judge asked where on the time-pay warrants it directed a law enforcement officer to arrest these people, the prosecutor said while it doesn't specifically say that it does say their options "upon arrest."

"Do you think that's a problem?" she asked him, specifically when it comes to prosecuting an officer for neglecting to serve a warrant.

Staggs said he didn't believe it was a fatal flaw. The statute should be read in conjunction with others, he said.

"Law enforcement at least could come to the conclusion to make an arrest or follow the directions in the time-pay warrants," he said.

Peterson asked if law enforcement had a duty to look at a warrant to determine if it was legally issued under the statute.

"My bigger question then is who has to decide that and is law enforcement bound because they get a warrant from the state, whether it's completely in compliance or not. Can they ignore a court warrant and decide I'm not going to serve this one?" she asked.

"The state's position is no," Staggs said. "Cops do not make that determination of whether or not that warrant is legally valid."

They still have to serve it, he said.

Peterson gave both sides time to provide her briefs in the case before she issues a ruling in the case.

Schmuecker was cited in March by the Lincoln Police Department after he made contact with two people who had outstanding warrants for failing to pay fines. Schmuecker decided to release both people and told them to pay their fines.

Sheriff Terry Wagner recommended he be terminated over it.

Schmuecker appealed to the Lancaster County Sheriff's Office Merit Commission, which upheld the decision. He has filed a civil case challenging his firing.