Nine days after Otto Zehm died after a scuffle with Spokane police, detectives told a judge they needed to seize the mentally ill man’s medical records because he was under investigation for allegedly assaulting officers.
The judge, District Court Commissioner Brad Chinn, approved four search warrants March 29, according to court records, giving police access to Zehm’s mental, medical and employment records even though it would be impossible to charge him with a crime.
Police said Monday it was simply the quickest way to gather information they deemed necessary as part of their investigation into the March 18 confrontation.
But some legal experts say the move is so unusual it raises more questions than it might answer.
“I’ve got to tell you, I’ve never heard of it,” Jeffry Finer, a criminal defense attorney who also teaches at Gonzaga University, said of the search warrants. “I don’t know how they would have the authority to advance an investigation into a dead person.”
Chinn did not return messages Monday seeking comment.
What caused the 36-year-old janitor’s death remains a mystery.
Acting Spokane Police Chief Jim Nicks insists it wasn’t his officers, even though Zehm was struck with a nightstick and jolted twice with electric Taser probes during the scuffle in a Zip Trip convenience store at 1712 N. Division St. Zehm, who had no criminal record, lapsed into a coma and died two days later.
Although at least part of the fight was captured by a store security camera, authorities are refusing to let the public see the tape. Spokane County Prosecutor Steve Tucker said it will remain under wraps at least until the conclusion of an ongoing investigation.
Last month, Gordon Bopp, president of NAMI-Washington, an advocacy group for people with mental illness, said the investigators should release the videotape of Zehm’s encounter with the police officers.
On Monday, Bopp also questioned how the medical records would shed any light on the scuffle.
“I certainly don’t understand why they would conduct an investigation to include the acquisition of his medical records when he is already deceased,” Bopp said. “This is really taking on the dimension of almost an ex post facto vendetta.”
Spokane Police Lt. Scott Stephens defended the request for the warrants, saying the law only requires detectives to show that a crime probably occurred and that a specific individual committed the offense.
“I think everyone has questions about why Mr. Zehm is deceased,” Stephens said. “We are just trying to answer those questions. Obviously, the search warrants were signed by a judge who didn’t find that request unusual or (he) probably wouldn’t have signed them.”
Finer, who does not represent Zehm’s family, reviewed the affidavit for the search warrant at the request of The Spokesman-Review. Finer said it would be appropriate for police to seek the records to investigate Zehm’s death, but not under the pretense of investigating a crime by Zehm.
“It again adds another layer of doubt to the family that this is an independent investigation,” Finer said. “It really leaves a very bad taste in one’s mouth.”
John Rodgers, the director of the Spokane County Public Defenders Office, said he believes the search warrants were obtained to seek information for an internal investigation.
“That’s clearly what this is about, making sure the officer was acting correctly,” Rodgers said. “If we are going to be scrutinizing their actions, it’s what the officers knew at the time that matters … not what they uncover later about his treatment and medications.”
Rodgers said he couldn’t remember a case where search warrants were used in this way.
“I can say it’s a novel approach to base it on potential criminal charges when a dead guy can’t be charged,” Rodgers said.
The encounter between Zehm and police started when Officer Karl Thompson responded to the convenience store after receiving a call of an attempted or actual robbery.
According to an affidavit in support of the search warrant, Thompson “approached the suspect in the store and this contact resulted in a physical altercation.” Police officials previously said Zehm “lunged” and “attacked” Thompson. But neither action was described in the search warrant filed Wednesday by Detective Terry Ferguson.
Five more officers joined the scuffle and twice shocked Zehm with Taser probes and used a police baton, finally binding him in arm and leg restraints, according to the affidavit. Nicks, the acting police chief, later said all steps taken during the scuffle were “lawful” procedures to maintain control.
About 10 minutes after detaining Zehm, who was unarmed and did not have a criminal record, the janitor began to have trouble breathing. He was taken to a local hospital, where he died two days later.
Stephens said Monday that the autopsy found no evidence to suggest that police force caused Zehm’s death.
According to court records, Zehm’s behavior had changed noticeably in the weeks prior to the confrontation. Among other things, he stopped coming to work March 7 and had stopped taking his unspecified medication.
Terri Sloyer, a staff attorney at the Center for Justice, is representing Zehm’s mother, Ann Zehm. They spoke Thursday with the detectives but never were asked about Zehm’s medical records.
“It would seem they want to paint a particular picture of Mr. Zehm to justify the actions of the officers,” Sloyer said. “I’m not saying they are, but I have those questions.”
Stephens said Ann Zehm could not have authorized the release of the records from Deaconess Medical Center, Spokane Mental Health Center and Community Health Association of Spokane clinic because Otto Zehm was an adult living alone.
“It’s just easier and cleaner to go to the hospital and say here’s the search warrant,” Stephens said. “The medical examiner could subpoena those records. But it’s usually incumbent on the lead investigator to gather as much information as they can for the medical examiner.”
Finer, the defense attorney, said the search warrants could lead to more headaches for the Police Department.
“If they obtained confidential records using this affidavit, and the affidavit is found to be improper, then the family would have the option of bringing a lawsuit … for violation of privacy,” Finer said. “It begs many, many questions.”