July 15, 2006 in City

Chief still backs force

By and The Spokesman-Review
 
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Even though police have backed away from their earlier version of how the fatal struggle with a mentally ill janitor began, acting Chief Jim Nicks said Friday he still believes officers did nothing wrong.

“They had the information necessary before going into the store to stop and detain Otto Zehm,” Nicks said during an interview at the Public Safety Building. “And the officers did the right thing given the situation.

“As time goes on, and we talk to more and more people, it supports Karl’s account of the incident,” Nicks added. “The only thing that matters is what was in Karl Thompson’s mind at the moment.”

The surveillance video that captured much of the March 18 confrontation between Zehm and Spokane Police, including Senior Officer Karl Thompson, was released Thursday, giving the public its first look at the chaotic confrontation inside a Zip Trip convenience store on north Division Street. The video showed that, unlike Nicks’ earlier statements, Zehm never “lunged” at the first officer who approached him.

But the officer still had reason to view Zehm as a threat to himself and others, Nicks said.

The 911 call that prompted police to pursue Zehm came from a woman who said Zehm approached her vehicle at a bank cash machine, and that he “said something about $500 and was yelling very loudly.”

The complainant and her passenger were concerned that Zehm took money from their account. It was later determined that no money was taken, however.

Meanwhile, some city leaders appeared divided over what to do next.

Spokane Mayor Dennis Hession said Friday he is willing to wait on Spokane County Prosecuting Attorney Steve Tucker to rule on whether any criminal charges should be filed before taking any additional action, such as seeking an outside investigation.

Hession said he has no information yet that would justify calling for an independent external investigation and that the participation of the Spokane County Sheriff’s Office, as well as the independent review by the prosecuting attorney, should be sufficient to ensure an objective review.

“They each have their own credibility at stake,” the mayor said. He cautioned members of the public not to jump to conclusions that officers used excessive force.

“It’s unfair to Otto Zehm. It’s unfair to the police officers involved to reach conclusions based on observations from people who don’t have the experience and expertise to draw those conclusions,” Hession said during an interview at his office.

Zehm, 36, died two days after the scuffle with police at the convenience store. According to the Spokane County medical examiner, the cause of death was that Zehm died from a lack of oxygen to the brain due to heart failure while being restrained on his stomach.

City Councilman Al French said he would support an outside investigation, adding “I think that’s very appropriate here.” He said an outside investigation would help the department overcome concerns raised by the chief’s statements and give the public assurance that the investigation has been thorough and independent.

Hession criticized the Zehm family’s lawyer, Breann Beggs of the Center for Justice, who said that Zehm’s death was connected to police officers putting an air mask over his face. Police said they used the mask to stop Zehm from spitting. “What makes him qualified to make that observation?” Hession asked.

He also said members of the public might be shocked at the use of force, but physical confrontation is a regular part of a police officer’s job. “I am not a police officer, and I don’t have their training.”

Police were called to the area near Division and Augusta on March 18 on the report of the alleged theft. The women were frightened and drove off before getting any money, and followed the man later determined to be Zehm. They described Zehm as trying to run and hide from them. The women saw Zehm and an officer go into the Zip Trip where the scuffle took place.

“We have to do what’s necessary to detain the suspect (Zehm),” Nicks said. “It looked like he was going out the other door. Karl needed to make sure he stopped the perceived threat.”

According to Thompson’s report, he went into the Zip Trip and closed in on Zehm as quickly as possible. As he got close, Zehm turned around with the bottle of pop held chest high, in both hands, Thompson told detectives.

Based on Zehm’s posture and stance Thompson believed Zehm was preparing to throw the bottle at him, push him or charge him, which would have put the officer at a disadvantage, Nicks said.

Thompson told Zehm to drop the bottle, to which Zehm replied “why,” Nicks said, reading from Thompson’s incident report. Thompson repeated his command, and Zehm replied “no.”

The video footage shows that conversation would have had to occur within just 2 to 3 seconds.

Nicks said he believes what was interpreted from the video by some people as Zehm throwing his hands up in the air to surrender during that initial confrontation, has been described differently by two witnesses.

A Zip Trip clerk and another woman told police they saw Thompson walk up to Zehm, and Zehm turn around and start swinging his arms “like crazy,” a witness statement read.

But in new documents released Friday, many of the witness accounts differ greatly.

Several reported that Zehm did, indeed, have a plastic bottle of soda in his hand, while others were unsure. Many told police that they heard the first officer order Zehm to drop something, but others said they only heard yelling and groaning.

According to Thompson’s statement, when Zehm didn’t comply with his commands to drop the pop bottle, the officer hit him in the upper thigh with his baton. While Zehm was on the ground, between the aisles, he punched Thompson in the chest, according to the officer’s statement. Thompson then deployed his Taser, but it didn’t work on Zehm, and he kept throwing punches and managed to get to his feet.

Thompson caught Zehm and the two continued to struggle, then officer Steve Braun Jr. arrived and used his Taser.

Five more officers arrived, and they all worked to put Zehm in restraints.

According to police reports, a person familiar with Zehm said that prior to the incident he had been acting strangely and may not have been taking his medication. The report, which identifies the person as “Ms. Zehm,” said the woman stated that “if Otto was confronted by an authority figure like a policeman … (she) doesn’t know what he would do.” The woman further stated that “if the officer were too close to him, he might fight.”

Paramedics were called to check on Zehm because officers said he was hit with Taser probes. After they checked Zehm out, officers asked for something to prevent Zehm from spitting on them and were given an unhooked oxygen mask with a nickel-sized breathing hole. Within minutes, officers realized Zehm wasn’t breathing.

“I watched as Zehm’s breathing began to fade and become more and more faint in his lower abdomen, to the point I bent down and pulled Zehm’s shirt up,” Officer Erin Raleigh wrote in a report after the incident. Raleigh and another officer rolled Zehm to his side to check his breathing, and Raleigh saw Zehm’s face had turned purple and he had stopped breathing. She immediately called for the fire personnel standing outside the store to provide medical attention, according to the report.

“It’s always the officer’s intention to control a situation in a manner in which no one gets hurt, but sometimes people do get hurt and, although remote, sometimes people die,” Nicks said. “We feel bad for the Zehm family and friends.”

Hession said he continues to have confidence in Nicks and said he does not believe that Nicks intentionally tried to mislead the public, particularly since the police had recommended early during the investigation that the convenience store security video tapes be made public. He said that Nicks would have known that he would be exposed by the evidence, the mayor said. Prosecuting Attorney Tucker withheld the videos, saying he wanted to wait to conduct his own investigation before releasing them publicly.

Councilman Bob Apple said there is no excuse for providing misinformation to the public, and it has created a credibility problem. “Due to the circumstances, it throws a lot of suspicion on our guys, and that raises a lot of concern,” Apple said.

Nicks said: “Karl had a lawful right to use the amount of force necessary to gain control of the suspect with the belief that officer Thompson was about to be pushed, hit or charged. With that in mind, Thompson was within policy and training to use a nightstick and Taser in the manner which he did.”

Officer Ron Voeller described Zehm’s “high piercing maniacal” laughter in his report of the incident. He said the restrained suspect was incoherent but paused once to say, “All I wanted was a Snickers.”

Staff writers Thomas Clouse and Benjamin Shors contributed to this report.

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