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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Our View: Just common sense

The Spokesman-Review

U.S. District Judge Robert Whaley cited two authorities this week when he held that a Spokane police practice involving warrantless strip searches is unconstitutional.

One, as you’d expect, was the law. The other was common sense.

That should send a strong message to the city and bring a sharp curtailment in the practice. Police Chief Anne Kirkpatrick, who has shown an impressive willingness to redress shaky policies she inherited, has acknowledged that revisions are in order.

In this case, officers had been left to their own discretion to conduct strip searches in the field when stopping suspects.

As Whaley put it, in the civil rights case involving drug suspect John Burton, “Common sense and the law tell us that forcing a person to stand naked and bend over in front of strangers is humiliating and most invasive of human dignity. Where there is no emergency or institutional threat, such as a jail setting, it is clear that our Constitution requires a neutral judge to decide if there is justification for such an indignity.”

Between Whaley’s unequivocal ruling and Kirkpatrick’s progressive ideas, there’s cause to expect other suspects won’t be subjected needlessly to the ordeal Burton had to endure.

But there’s something else.

What struck Whaley as “common sense” somehow escaped the notice of city legal officials who reacted to Burton’s civil rights claims by countersuing him for “malicious prosecution.” That’s a strategem they use a lot when suspects assert that their rights have been violated.

Three months ago, S-R reporters Bill Morlin and Karen Dorn Steele documented a pattern of filing such countersuits for at least the past decade.

Let it be conceded that there are those who exploit and abuse the protections provided by the U.S. Constitution. Sometimes, in this litigious climate, detainees and suspects file bogus claims in an effort to shake down authorities and taxpayers.

Sometimes.

But sometimes, as the city of Spokane has learned at a cost of millions, police overreach their authority and they do violate citizens’ civil rights. The strip search practice that found its way before Judge Whaley was earlier declared unconstitutional by the 9th U.S. Circuit Court of Appeals.

In Burton’s case, even if police felt justified in the actions they took, common sense should have told the city’s lawyers that his reaction was not malicious prosecution. So should a history of futilely countersuing other plaintiffs who wound up collecting on their own claims over violated rights.

In March, City Attorney Jim Craven, relatively new on the job, told reporters Morlin and Steele he doesn’t plan to file such suits routinely — but he hadn’t actually reviewed the practice. With Whaley’s words fresh in his ears, Craven should make it clear now that the days of haphazard countersuits are over.

Malicious prosecution suits serve a purpose in the rare instances where circumstances justify them. But not as a routine. That’s just not common sense.