Otto Zehm is responsible for the events that led up to his death while in police custody, the city of Spokane said Friday as it asked a federal court to dismiss a lawsuit filed by Zehm’s mother.
A 56-page response to the civil rights claim by Ann Zehm offers previously unreleased – and, according to her lawyer, irrelevant – information about a 1990 altercation between Otto Zehm and a county sheriff’s deputy. It also includes an allegation that Zehm was “on something” during the incident that was not in the transcript of the tape of the 911 call released by the city in 2006.
“Otto Zehm knew or should have known that he was being detained by a peace officer and had the duty to refrain from using force to resist such detention,” the city contends in its response, prepared by assistant city attorney Rocco Treppiedi and private attorney Carl Oreskovich, who is under contract with the city for assistance on the Zehm case and represents one of the officers named in the suit. “Any injury or damage suffered by Mr. Zehm was caused solely by reason of his conduct and willful resistance.”
Breean Beggs, of the Center for Justice, who is representing Ann Zehm, said the court filing is typical of the city’s response to the Zehm case: “They’re doing the classic ‘blame the victim’ tactic.”
Zehm, a 36-year-old Spokane resident, was approached by Officer Karl Thompson in a north Spokane Zip Trip on the night of March 18, 2006, after a woman called 911 about suspicious activity at a nearby automatic teller machine. Thompson ordered Zehm to stop and drop a 2-liter bottle of soda he was holding. When Zehm didn’t comply, Thompson used a baton and Taser to subdue him.
After other officers arrived, Zehm was handcuffed and hogtied. He suffered a heart attack and died before arriving at a hospital.
In court papers filed Friday, the city maintains that Zehm, who had schizophrenia, was responsible for his death and that police acted properly at the Zip Trip.
Zehm was able to function “moderately well” despite his illness as long as he took his prescribed medication, the documents say. In the weeks before the incident, the city says, he stopped taking that medication, “leading to a significant deterioration in his functioning capacity.”
The city also contends that Zehm had a history of resisting arrest, based on an incident in August 1990. In that case, the documents say, a county sheriff’s deputy encountered Zehm “wandering along an arterial in a confused manner wearing ripped clothing.”
The deputy decided to take Zehm to a hospital for evaluation, but Zehm assaulted the deputy, the court papers say, had to be wrestled to the ground and during the struggle “twice tried to get the deputy’s gun in his holster.” Zehm was never charged, but was referred for mental health evaluation and treatment.
Beggs said he doubts the court will find either contention relevant in the case, because Thompson didn’t know about the 1990 incident or Zehm’s mental illness and medical treatment when approaching him in the store. The city also says officers had reason to believe Zehm was on drugs, based on information from the person who called 911. The court filing includes dialogue from an audio transcript in which the dispatcher asked, “Did he seem high or intoxicated?” The caller replied: “I don’t think he was drunk … he’s high on something.”
That exchange is not audible on a tape released by police in July 2006, and Beggs said it doesn’t match the tape the center was given.
The document also defends the public statements of acting police Chief Jim Nicks after Zehm’s death. Nicks said at a press conference that Zehm had lunged at Thompson and that Zehm was kept on his side for most of the time he was in restraints. A review of videotapes showed no evidence that Zehm lunged at officers, and that he was on his stomach for a significant period of time.
“Both statements were believed to be true when made,” the city said, but were later “clarified and revised.”
Both sides are asking for a jury trial for the lawsuit. Depending on U.S. District Judge Lonny Suko’s schedule, a trial might not occur until late 2010 or 2011.