February 4, 2009 in City

Judge, city spar over representation in strip search case

By The Spokesman-Review
 

A federal judge says the city of Spokane appears to be “judge shopping” by hiring a new attorney to defend police officers for strip searching a man in 2005.

U.S. District Court Judge Robert Whaley previously ruled the Spokane Police Department violated the civil rights of John Burton by requiring him to undress and submit to a body-cavity search for drugs in a house in the West Central neighborhood in 2005.

Once he undressed, Burton was required to bend over in front of several police officers, one of whom said, “There’s no crack in that crack,” his lawsuit alleges.

The 9th U.S. Circuit Court of Appeals ruled in 1991 that such warrantless field strip searches by police in the field are unconstitutional.

At the time of Whaley’s ruling in 2007, city attorneys did not disclose that officers had a warrant for the search. They now say officers had a search warrant, making the strip search legal.

Both sides will seek court rulings in their favor at a summary judgment hearing set for Feb. 23.

Last month, the city attorney’s office hired private attorney Carl Oreskovich to replace Assistant City Attorney Ellen O’Hara in defending the Police Department and at least nine of its officers, including former Chief Roger Bragdon.

“I have no knowledge that either the Police Department or any of (its) employees subjected Burton or other persons to a ‘pattern of conduct consisting of unconstitutional field strip searches’ as alleged in the complaint,” Bragdon said in a recently filed affidavit.

The judge’s three-page order, however, will block Oreskovich from representing the department in the ongoing legal fight.

Whaley said it’s usually “not a cause of concern for the court” if a party in a civil suit brings in a new attorney. But the Burton suit, now more than two years old, is different, the judge said.

Without specifying the reasons, the federal judge said he has recused himself from cases in which Oreskovich has appeared. The city attorney’s office “was aware of this practice” when it recently hired Oreskovich to work on the Burton case, the judge said.

“While it is proper for Mr. Oreskovich to appear in any case that he wishes, the city’s association of (him) at this juncture comes close to judge shopping by the city,” the federal judge’s order said.

City Attorney Howard Delaney said Tuesday he made the decision to hire Oreskovich because the city’s legal staff is short-staffed and working on producing documents pertaining to countersuits, demanded by the court in the Burton suit.

“We’re not trying to forum or judge shop,” the city attorney said.

Whaley said he has become “intimately familiar with the facts and applicable law” in the Burton case that has been pending in federal court since 2006.

“If the court were to recuse itself, there would be an additional delay in resolving this case and a waste of judicial resources,” Whaley said.

As part of the case, the federal judge also ordered the city attorney’s office to turn over to the plaintiff this week all the counterclaims it has filed against anyone like Burton who has brought a civil rights suit against the police department.

Burton’s suit has an additional “tort of outrage” claim against the city because it countersued him. His attorneys, James Sweetser and Kenneth Kato, are attempting to determine if the city engaged in a pattern of attempting to discourage civil rights lawsuits by countersuing anyone who sued the police for wrongful acts.

Bill Morlin can be reached at (509) 459-5444 or billm@spokesman.com.


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