Spokane Mayor Mary Verner today acknowledged that the city is re-evaluating its legal position in the Otto Zehm controversy after new court documents indicate officers violated use-of-force and other departmental policies in the fatal 2006 confrontation.
According to court records filed last week in the upcoming federal trial against Spokane Police Officer Karl Thompson, Assistant Police Chief Jim Nicks is prepared to testify that major crimes detectives failed to analyze the video of the confrontation compared to Thompson’s statement; they never followed up on a report from an ambulance crew that Thompson struck Zehm in the head with a baton; and his own review of the video shows that Thompson violated several policies and procedures by applying unjustified force against the retreating Zehm.
The testimony is a complete reversal of what Nicks told the public on March 18, 2006, after the mentally ill Zehm was beaten, Tasered and hogtied in a convenience store following an erroneous report from two young women that he had stolen money from a nearby ATM. It’s also contradicts the city’s long-standing position that its officers did nothing wrong in their handling of the case, and that it was Zehm who bore responsibility for the escalation of force by continuing to flail as officers beat him.
Today, Verner issued a news release responding to questions posed to her Monday evening by The Spokesman-Review.
“Assistant Chief Nicks’ affidavit is consistent with what U.S. Attorney Durkin indicated the Assistant Chief would testify to in a legal filing in April 2010. As we did then, we are evaluating this information in light of the case the City is involved in — the separate civil case,” wrote Verner, who’s seeking re-election.
Although first disclosed in April, the newly filed documents provide the first detailed explanation of Nicks’ concerns over how the Zehm confrontation was handled, and with the department’s handling of the investigation.
Nicks met on June 4, 2010, with defense attorneys Carl Oreskovich and Steve Lamberson and informed them about his concerns, which Nicks also said he has communicated to Chief Anne Kirkpatrick. That same day, the defense attorneys filed a motion — which was recently renewed — asking the judge to prevent Nicks from testifying as an expert witness in the trial scheduled to begin the second week of October.
At a news conference following the confrontation, in which Thompson beat Zehm with a police baton and applied Taser shocks, Nicks said that Zehm lunged at Thompson and a “very horrific fight” ensued.
“The officers were definitely within the (department) policy,” he said that night. “The officers used the lowest level of force possible.”
However, Nicks changed his story after law enforcement officials released the video from the confrontation, which clearly showed that Zehm did not lunge at the approaching Thompson.
Nicks went further during his sworn testimony to a federal grand jury, saying among other things that Thompson did not stop and engage Zehm with verbal commands as Thompson later described to police investigators.
“Based on the video, during Officer Thompson’s initial engagement of Otto Zehm, Mr. Zehm appears to be ‘active resistant’ and is not assaultive toward the officer. Therefore Officer Thompson was not authorized to utilize an impact weapon on and strike Zehm,” Nicks said, according to the court records.
Thompson’s immediate use of a baton on the retreating Zehm “was a level of force higher than that authorized by the Spokane Police Department’s policies and procedures governing the use of force on public citizens.”
And the use of a Taser, when it appeared that Zehm had stopped resisting, was “not authorized” and violated department policies.
Despite having knowledge of this information for more than a year, the city has not changed its public pronouncements in a dual civil case in which city attorneys blamed Otto Zehm for the encounter.
The city continues to retain Oreskovich to represent Thompson in the civil case; he also has been appointed by federal court to defend Thompson on the felony criminal charges that the officer used unreasonable force and lied to investigators following the confrontation.
Verner told The Spokesman-Review in February 2009 that based on the information available to her she didn’t believe the “behavior of the officer rose to criminal behavior.”
Asked Monday if her view had changed, Verner said she had not yet had an opportunity to read Nicks’ declarations.
“I’m certainly going to review it carefully to see how it affects the city’s position in the civil and criminal case,” she said.
Then this morning, Verner issued the statement saying the city must allow the legal process to run its course.
“Ultimately, we, too, are seeking an outcome that is just and fair, based on all the evidence and circumstances. The City of Spokane and I are committed to open and transparent government, and this is part of the process. Our employees must tell the truth as they see it.”