The pop bottle has appeared.
A video released Thursday shows Otto Zehm had a 2-liter plastic bottle in his hands as he lay on his back in the initial stages of the fatal March 18 confrontation with Spokane police.
The video, which came from the fourth of four cameras inside the Zip Trip at 1712 N. Division, was not included in a packet of information released by department officials July 13.
At that time, police officials acknowledged that the surveillance tapes were inconclusive in determining whether the mentally ill janitor had the bottle in his hands, which Officer Karl Thompson used as the primary justification for his pre-emptive use of a police baton.
On Thursday, in response to a second round of public records requests, city officials released the fourth video and announced that the disputed pop bottle was visible in the footage.
“Clearly, I’m disappointed this video is coming out (Thursday) and didn’t come out with the others,” Spokane Police spokesman Cpl. Tom Lee said.
He said that lead detective Terry Ferguson reviewed the fourth tape days after the March 18 incident. However, she specifically was looking for how Thompson used his baton and Taser and didn’t notice the bottle. So, she never turned the tape over to the prosecutor for review, Lee said.
Breean Beggs, of the Center for Justice, which is representing Zehm’s mother, said he had not seen the new video showing Zehm with the bottle in his hands.
But he said the revelation of the bottle does not change his opinion that Thompson used excessive force during his initial contact with Zehm and that the officers erred by placing a “non-rebreather” oxygen mask over Zehm’s mouth and nose while he was hogtied on his stomach.
The new video “does not seem to affect either one of those issues, which have always been the issues that are most important to us,” Beggs said.
On Thursday afternoon, the city called a news conference to release the video. Lee said the video shows Zehm “clearly holding a pop bottle and clearly swinging at Officer Thompson.”
A review of the video shows Zehm falling to the floor as Thompson engages him near the end of an aisle inside the convenience store. While lying on the ground, Zehm is seen holding the base of the soda bottle with his left hand and the neck of the bottle with his right hand, which is how Thompson described it in his report.
But Zehm appears to be holding the bottle in front of his face. He moves it side to side three times before the bottle falls out of view and he stops moving. It’s then that Thompson applies the first Taser jolt and the two men are seen wrestling out of view.
Asked later where in the video it shows Zehm “swinging” at Thompson, Lee backed off his earlier description. Lee said “swinging” was probably too strong word. He said the video shows Zehm holding the bottle above his head, moving it back and forth.
While the video appears to put to rest the bottle issue, it does not show other aggressive actions by Zehm as described by Thompson in his report.
Thompson told Ferguson specific details about the moments before he used his Taser, which is shown in the new video.
“I am able to get him, to knock him down. He goes down on his back and I go down on top of him. He clearly at this point is swinging both fists at me,” Thompson said in a taped report March 22. “I remember pulling back away to get some distance to get away from his punches and I was on my feet and I also realized that I had just moments if I was going to be able to Tase him.
“There was a period of maybe seconds when he was lying on the ground. I moved out of his fist range … he was stationary,” Thompson said. “That was the opportunity I used to shoot the Taser.”
At no time during the video released Thursday does it appear to show Zehm punching at Thompson.
After being jolted with the Taser, Zehm again began struggling and both men moved back down the aisle out of view. Other camera angles recorded the six other officers who came to aid Thompson in restraining Zehm.
They eventually hogtied Zehm by placing nylon straps on his legs and cinching them up to his handcuffs. The video shows that the officers mostly kept Zehm on his stomach, a position that police officials say officers are trained to avoid because it restricts breathing.
Spokane County Prosecutor Steve Tucker said last week that he has hired a video forensic expert to review the surveillance videos and that review is expected to delay up to a month his decision about whether the officers committed any crimes during the confrontation.
Medical Examiner Sally Aiken has ruled that Zehm died from lack of oxygen to the brain due to heart failure while being restrained on his stomach. But there was no mention of the mask in Aiken’s findings that Acting Chief Jim Nicks released to the public May 30.
Beggs has since asked Aiken to review her cause of death while taking into account the use of the mask. “We are still waiting from the coroner her opinion whether the mask was a contributing factor to his death,” Beggs said.