February 21, 2008 in City

Few answers in Otto Zehm’s death

By The Spokesman-Review
 
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Background and the latest updates

Otto Zehm died two years ago Thursday, after a series of events that started at a cash machine outside a bank in north Spokane.

The death of the 36-year-old mentally disabled janitor triggered demands from the public for a full-time police ombudsman, launched a federal criminal investigation, and prompted a $2.9 million damage claim against the city.

While those issues remain unresolved, a clearer picture is emerging about the events leading to Zehm’s death. There appears to be general agreement that the tragedy involved misperceptions, miscommunication and mistakes.

“I think it’s a sad event,” said City Attorney Jim Craven, hired for that job 45 days after Zehm’s death and now returning to private practice.

The event began when a distraught young woman called police on a Saturday evening to describe how Zehm approached her and another woman in their car as they used the drive-up ATM at a Washington Trust bank about 6 p.m. on March 18, 2006.

“He’s messing with it …” the woman told a police dispatcher, implying she and her friend were potential robbery victims.

The women – who retrieved their bank card and were in their car as they called police – apparently had no idea the man with long red hair, flailing his arms and screaming at the cash machine, was disabled. Zehm attorneys said he was confused because his mental-illness medication had been lowered.

A police dispatcher told responding officers the man “appeared to be high” and had taken money from the women – both of which were untrue.

Minutes later, the man who officers thought was a robbery suspect was struck with a police baton at least six times and shocked three times with Tasers in a nearby convenience store.

Afterward, a plastic oxygen mask was pulled over Zehm’s nose and mouth as a makeshift anti-spitting device as he lay hogtied on the floor after a 20-minute fight with police. Fire Department commanders later admitted use of the mask was a mistake.

Zehm never regained consciousness. He died two days later, on March 20, 2006.

In processing his estate, attorneys with the Center for Justice said they came across a surprising discovery: Zehm had an account at the bank where the two women thought he was a potential criminal.

“He had thousands of dollars in that very bank,” Center for Justice attorney Jeffry Finer said last week. “He saved almost every penny he made.”

Zehm’s friend and boss, Leona Eubank, said this week that Zehm had an ATM card “and regularly used that bank. I know because I took him there several times to cash his paycheck.

“Otto had as much right to be at that bank as those women did,” said Eubank, a supervisor with Skils’kin, a private nonprofit organization that employs people with disabilities to do janitorial work in government buildings.

Zehm worked six hours a day as part of a crew of 75 custodians who cleaned 99 buildings at Fairchild Air Force Base. He spent the last two hours of each shift cleaning a Centers for Disease Control Prevention office on East Montgomery, not far from the Washington Trust bank branch.

When Zehm approached the cash machine, he had an endorsed $500 paycheck from his employer in his pocket, according to Center for Justice attorney Terri Sloyer.

“He was confused,” Sloyer said. “We speculate that he may have gone to the bank machine, anxious and confused over the bank being closed, unable to deposit his paycheck.”

Federal investigation continues

Responding police didn’t intercept Zehm until after he entered a Zip Trip store about two blocks from the bank. He apparently wanted to buy a 2-liter bottle of soda and a candy bar.

“I believed that … a crime may have been committed,” the first responding officer, Karl F. Thompson Jr., later told investigators, according to their reports.

What happened to Zehm in the convenience store is part of the FBI criminal investigation opened shortly after his death. The U.S. Department of Justice is attempting to determine if Spokane police violated Zehm’s civil rights and used excessive force.

Routinely, once such an investigation is concluded by the local FBI and U.S. attorney’s office, it is forwarded to the Civil Rights Division of the Justice Department in Washington, D.C., for secondary review. That review can result in additional investigative work, and that’s what appears to be occurring in the Zehm case.

There is a five-year statute of limitations to bring federal criminal civil rights charges.

Best guesses from those familiar with the investigation are that the Justice Department is either bringing an indictment or declining jurisdiction, with an announcement expected before the end of this year, possibly as early as this summer.

“We’re making sure this is done thoroughly and cleanly. That’s why it’s taking so long,” said one Justice Department source familiar with the investigation. “There’s a lot more work to be done in cases like this than the public knows about.”

Thomas O. Rice, the first assistant U.S. attorney for the Eastern District of Washington, and Egon Dezihan, the FBI supervisor in Spokane, would only say this week that the Zehm case remains under “active investigation.” It centers on whether Spokane police violated Zehm’s civil rights, Rice confirmed.

Already, according to other sources, FBI agents have reviewed a thick volume of Police and Fire Department reports including Zehm’s medical records, which were seized after his death by Spokane police with a search warrant. FBI agents also located and interviewed two or three witnesses who were in the convenience store but not previously located and interviewed by Spokane police detectives after Zehm’s death.

The key to determining whether police used excessive force is the surveillance video that recorded the incident in the Zip Trip at 1712 N. Division St. The video was paired with police dispatch audio and the timeline of events.

The federal investigation was stalled while agents waited for photo experts at the FBI lab – busy with other work – to enhance the video and produce still-frame photographs. With that work complete, experts were then able to produce a detailed breakdown of the actions of Thompson, the first officer on the scene, including the position of his baton as he entered the store. Within 30 seconds of Thompson’s arrival, the video shows him striking Zehm with a baton and Tasering him.

Zehm was knocked to the floor and struck at least six times by Thompson’s baton. A second officer, Steve Braun Jr., used the touch probes on his Taser to zap Zehm two additional times with 50,000 volts of electricity.

The enhanced video shows Zehm holding a 2-liter bottle of soda – not as an offensive weapon “lunging at an officer,” as police administrators initially contended but in an apparent defensive posture in front of his head to block the officer’s baton, according to sources.

The video also shows the “hobbled” Zehm spent most of the time on his stomach – a contributing cause of his death, according to the medical examiner – and not on his side as senior police administrators initially described.

As part of the FBI investigation, the videos are being reviewed by experts in police procedure and use of force, sources said. The investigation also could include a review of the records of the officers involved and how many times they each have used force on the job.

Braun had used his Taser in three earlier incidents, according to department “use of force” records. One of those, in July 2004, involved a mentally ill man who was carrying methamphetamine.

Before the Zehm encounter, Thompson had used his Taser seven times since Jan. 1, 2003, the records show, including once on a handcuffed, mentally ill woman.

Federal investigators also have records detailing Thompson’s training and history in the use of a baton.

The records show the 30-inch “iron wood” police baton Thompson used on Zehm was longer and stronger than the typical 25-inch “wenge wood” batons issued to most officers.

“Thompson requested the stronger material and the longer baton based on the fact he did not want (his) baton to break during a confrontation and become useless,” according to a police report written by baton instructor Larry Bowman.

Because of his short stature, Thompson “wanted a longer baton to maintain distance from an assailant, if necessary,” Bowman’s report said.

Thompson has worked 28 years in law enforcement, nine of those with the Spokane Police Department after jobs with the Kootenai County Sheriff’s Office, the Idaho State Police and the Los Angeles Police Department. He had received special “crisis intervention training” to deal with mentally ill people and was on the department’s riot team, Spokane police records show.

Settlement possible, but not probable

Requiring that more Spokane police officers undergo mental-disability and drug-abuse training is one of four stated goals of the Center for Justice’s pending claim against the city on Zehm’s behalf, said executive director Breean Beggs.

Since Zehm’s death, 20 Spokane police officers have undergone such training, and Beggs said “the city should be commended for that. We just need more.”

The $2.9 million claim was filed last July by Finer, who said in a letter to the city that the amount is justified because the Police Department violated its own policies by restraining Zehm for 13 minutes on his stomach and putting the plastic mask over his nose and mouth.

The city hasn’t formally rejected the claim, which isn’t necessary for the Center for Justice to file a civil rights damages suit in U.S. District Court. Attorneys for both sides have met privately and recently conducted joint interviews to glean more information about Zehm’s medical background and work history.

“We think the case will either get negotiated to settlement within 60 days or a suit will be filed against the city,” Beggs said.

The center represents Zehm’s elderly mother, who lives in subsidized housing. She, like the Center for Justice, is more interested in change than a large monetary settlement, Beggs said. He wouldn’t say how much the estate would accept to avoid litigation.

Craven, the city’s attorney who is leaving office at the end of March, suggested a settlement with the center and Zehm’s estate is possible but not probable. The city is self-insured for the first $1 million; then insurance coverage kicks in.

“I don’t really want to speculate whether we could get to closure in the next 60 days,” Craven said last week. “If progress is being made in cooperative discussions with the Center for Justice, it’s up to the plaintiffs to decide whether to bring a suit.” Craven declined to say if his office would provide legal representation for police officers if federal civil rights charges are filed. “We’ve thought about that, but I don’t have a comment to make at this point.

“We have a great deal of empathy for everyone who was on that scene,” Craven said. “Any city employee who was there is likely to be strongly supported by this office.”

Mayor Mary Verner said this week the city has made changes, including “excited delirium” training for police and fire personnel. They describe “excited delirium” as a medical emergency involving extreme mental and physical excitement, often fueled by drugs or alcohol.

“There’s a greatly heightened awareness about mental health concerns,” the mayor said in a brief voice message while out of town for her brother’s funeral. “We do also anxiously await the results of the FBI investigation,” Verner said. She didn’t comment on whether she believes the city will settle the Zehm claim before a suit is filed.

To avoid that, the Center for Justice wants a commitment from the city for a “comprehensive review” of the Police Department’s “use of force” policy, Beggs said.

“The current policy was put in place 20 years ago when Spokane copied a ‘use of force’ policy drafted for Tacoma,” he said. “Spokane’s policy was modified and currently is woefully out of date in terms of officer safety and de-escalation of violence.”

The department’s use-of-force policy is being reviewed as part of a best-practices study examining all policies and procedures, said Spokane police spokeswoman Jennifer DeRuwe.

Beggs said that from his view, “The culture of the Spokane Police Department has been to use force and Tasers to get uncooperative individuals to comply.”

Instead of confrontation and “defensive tactics,” more modern use-of-force guidelines emphasize de-escalation, containment and “compliance techniques,” Beggs said.

Between Jan. 1, 2006, and last Dec. 31, there have been 12 deaths in Spokane County involving police, sheriff, jail and other commissioned officers, Beggs said. Most of the victims suffered from mental illness or drug issues or both.

“In our view, if the police agencies had applied the latest training and protocol for dealing with people who suffer from mental illness or drug issues, some of those deaths likely would not have occurred,” Beggs said.

As part of its claim, the center also is asking the city for an independent review of the Zehm incident.

Former Mayor Dennis Hession and Police Chief Anne Kirkpatrick agreed to hire a consultant for that review, but that plan is on hold because of the FBI investigation.

Spokane County Prosecutor Steve Tucker also has declined to review the case for possible violations of state law because of the federal investigation.

“The No. 1 thing we wanted to see come about as the result of the death of Otto Zehm is having a vigorous, full-time, independent police ombudsman,” Beggs said.

The center supports the hiring of a full-time ombudsman with an office at City Hall as opposed to someone working part time on contract, as Mayor Verner recently suggested. If cost is an issue, Beggs said the city should consider asking the Spokane County Sheriff’s Office to share the cost, with the ombudsman also covering sheriff’s deputies.

“If a police ombudsman prevented just one death a year, it would create far more savings to the public than the costs of an ombudsman operation,” Beggs said. The average wrongful death case faced by the city or county ranges from $300,000 to $2 million, he said.

Many of Zehm’s former co-workers still wear simple blue buttons bearing the name Otto. “It affected our people in probably a way that it may not have affected the rest of the community,” said Eubank, Zehm’s former supervisor. “They all knew Otto and knew he was the most gentle person ever,” she said. “For him to be beaten to death like that, they now realize it could happen to anybody – just over a misunderstanding, a wrong perception.”


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