A federal civil rights suit against the city of Spokane and nine of its police officers says Otto Zehm died three years ago when police officers used batons and Tasers in a display of excessive force on the unarmed, passive, mentally ill man who merely wanted to buy a soda.
The lawsuit, filed Friday by the Center for Justice five days before a legal deadline, comes after its attorneys spent months in private meetings with city attorneys – negotiations that failed to produce a damage settlement, promised changes in the way police deal with mentally ill people or a sought-after apology.
The suit, backed by a 30-page complaint, likely will take a year or more to get before a jury. It was assigned to U.S. District Court Judge Lonny Suko, who is expected to rule on a string of legal motions before any trial date is set.
The suit alleges the police department and its former acting chief, Jim Nicks, engaged in a conspiracy to portray Zehm as the aggressor after the 36-year-old janitor’s March 18, 2006, encounter with officer Karl Thompson and other officers in a North Spokane convenience store. Zehm’s death two days later was ruled a homicide by the medical examiner.
The suit also makes these allegations:
• Police lied when they claimed Zehm “lunged” at Officer Karl Thompson, the first responder, and made another false statement when they said Zehm was kept on his side most of the time after being restrained on the floor.
• Officers involved in the incident and the acting police chief did not tell the medical examiner that a plastic “non-rebreather” oxygen mask was placed on Zehm’s nose and mouth as his wrists and ankles were bound on the floor.
• A police detective used a “wholly invalid” affidavit to successfully get a judge to sign a search warrant, allowing police to seize Zehm’s medical and employment records, further violating his civil rights.
That “invasion of privacy” by the city was “causally motivated in order to pre-emptively prepare” the city in case a wrongful death claim was filed, the suit says.
• Upon completion of an autopsy report, the assistant police chief disclosed private information about Zehm to the public, even after Assistant City Attorney Rocky Treppiedi required Zehm’s attorneys to sign a non-disclosure order applying to all parties.
“This is a day we’ve been very much hoping to avoid,” said Breean Beggs, the center’s executive director, who drafted the suit with center attorney Jeffry Finer.
Besides Nicks and Thompson, other defendants named in the suit are: Steven Braun, Zack Dahle, Erin Raleigh, Dan Torok, Ron Voeller, Jason Uberaga and Detective Theresa Ferguson, who got the search warrant for Zehm’s medical records.
The suit alleges one or more of the named police officer defendants entered into an agreement to “falsely portray Otto Zehm” as the aggressor in the encounter. On multiple occasions, the acting police chief or his subordinates made public statements suggesting Zehm was the aggressor when surveillance tapes show he was “plainly retreating” from a baton wielded by Thompson, the first officer on the scene.
“Review of the surveillance video tape shows that Zehm never moved toward officer Thompson,” the suit says. “Zehm’s movement was plainly a retreat from the on-rushing baton-brandishing officer.”
Co-workers, supervisors and medical personnel who knew Zehm described him as a “sincere almost painfully shy individual [whose] manner was submissive and never physically aggressive,” the suit says. “When not taking his medications, Zehm retreated further into his shyness.”
The suit also says none of the officers involved in the incident or senior police commanders told the medical examiner that the plastic non-rebreather mask was used on Zehm. The medical examiner apparently learned that detail from press accounts.
Even though the plastic mask was collected as evidence by the police, it was not provided to the medical examiner for review, the suit says.
Police Chief Anne Kirkpatrick and Nicks, now the department’s No. 2 commander, declined comment and referred questions to City Attorney Howard Delaney. Kirkpatrick said earlier this month that Thompson had her “unequivocal support” for the way he handled the encounter with Zehm.
“We are disappointed that we were not able to reach a settlement in this matter prior to the filing of a lawsuit,” said Delaney, who had not read the complaint. “When we receive it, we will carefully and thoroughly review it and prepare our response.”
Mayor Mary Verner said the city “has almost continually engaged in a good-faith dialogue with the attorneys representing Mr. Zehm’s mother and his estate.”
“I certainly understand that with the statute of limitations nearly up, the attorneys for the Zehm family felt they had to file a lawsuit at this time,” said the mayor, who’s an attorney. “As a city, however, we intend to continue to work toward a mutually acceptable settlement in this matter.”
Beggs said Zehm’s death became a “community touchstone because of who Otto was.”
“At no point since this tragedy occurred has the Police Department or top city officials conceded that improper police conduct was in any way a factor in Otto’s death,” Beggs said. He has said a simple apology by the city and its police department would have been a starting point.
Instead, he said, police officials have knowingly tried to put the blame on Zehm.
“We have tried our best to resolve this case by getting the Police Department and city officials to acknowledge the mistakes that were made in this case, fairly compensate the family for Otto’s loss, and enact reasonable reforms for improved training and police oversight,” Beggs said. “Regrettably, the city isn’t there yet.”
For almost three years, Beggs said, the city and its police department have asked the media and the community “to disbelieve what the surveillance videos plainly show.
“Unfortunately, the family believes it has no other option but to prosecute this lawsuit in the hope that by prevailing we can prevent future such deaths,” he said.
As first officer on the scene, Thompson apparently thought he had cornered a robbery suspect who had been seen moments earlier acting unusual at a bank’s ATM machine. It was later learned Zehm had an account at the bank and used a debit card to get cash.
Inside the convenience store, Zehm lapsed into unconsciousness after being repeatedly struck with a police baton and shocked at least three times with police Taser guns. He was hogtied on the floor when police put a plastic oxygen mask on his face as an improper anti-spitting device. He never regained consciousness and died two days later in a Spokane hospital.
The filing of the suit came after the Center for Justice and city attorneys failed to reach an out-of-court settlement. Those negotiations began after Beggs and Finer, representing Zehm’s estate, filed a $2.9 million claim against the city.
When that claim was filed, Finer wrote an accompanying letter to the city that said 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 filing of the civil suit is separate from an ongoing investigation by the U.S. Department of Justice to determine if criminal civil rights charges should be filed against one or more officers involved in Zehm’s death.
U.S. Attorney Jim McDevitt said earlier this week he has “not demanded that criminal charges be filed or presented before I leave office,” likely in the next few months when his replacement is appointed by President Obama.
“Rather, I have made it clear that I want the investigation resolved, one way or the other, before I leave office,” McDevitt said. “I do not intend to saddle my successor with my work.”