Police training expert defends use of force

YAKIMA – One of the Spokane Police Department’s top trainers told a jury Wednesday that any situation could justify an officer’s use of force, even taking a burglary report in the victim’s home.

The testimony of Officer Terry Preuninger sparked verbal battles between federal prosecutors and defense attorneys for Officer Karl F. Thompson Jr., who is expected to take the stand today to defend his actions during his encounter on March 18, 2006, with Otto Zehm.

Defense attorney Carl Oreskovich said he will also call retired Detective Terry Ferguson and a firefighter before ending his case today. Federal prosecutors may have one or two rebuttal witnesses, which means the jury most likely will begin deliberating early next week whether to convict Thompson of using unreasonable force against Zehm and lying to investigators afterward.

Preuninger, who teaches patrol tactics at the law enforcement training center in Spokane, said his review of the video and witness statements indicated Thompson acted responsibly and followed his training when he rushed up to Zehm and began striking him with a police baton.

Defense attorney Steve Lamberson asked Preuninger whether Thompson’s use of a baton “served a legitimate law enforcement purpose.”

“Yes,” Preuninger answered.

“If all (Zehm) wanted to do was surrender, he could have done so. (Thompson’s) assessment was accurate. He continued to use force. It did allow him to keep that man from hurting him or anyone else.”

Even though the video from the Zip Trip store where the fatal encounter occurred shows Zehm retreating the entire time, Preuninger’s assessment of Zehm didn’t change.“Picture wrestlers or boxers,” Preuninger said. “It’s definitely not an indication that they don’t want to hurt or assault you because they move back.”

Assistant U.S. Attorney Timothy Durkin pointedly asked Preuninger to explain his findings.

“I listened to your testimony,” Durkin told Preuninger. “I’m having a hard time deciding when force is or is not authorized under your description.”

Preuninger said he is not authorized to use force on a routine matter such as taking a burglary report in the victim’s home “unless you commit a crime and I have to use force to keep you from fleeing.”

Durkin responded: “It’s reassuring to know that I’m at my house and have a good chance not to have force used against me.”

Lamberson objected and U.S. District Court Judge Fred Van Sickle warned Durkin, who then questioned whether officers can use force when no factual basis for that force exists. 

“A police officer can make a mistake,” Preuninger said. “An officer could believe their life was in danger or they were in danger of being assaulted when in fact we could go back in hindsight and show that’s not true. But the force would be authorized.”

Lamberson asked Preuninger if he agreed with Thompson’s risk assessment of Zehm, who eventually was hog-tied by several other officers, stopped breathing and died two days later.

Preuninger called it a “dangerous situation.

“I have a suspect who at minimum probably committed a strong-arm robbery. He knows I’m coming and he’s walked into a store with a lot of innocent parties. He could take a hostage. He could use a weapon against other people.”

Van Sickle previously ruled that prosecutors can’t tell the jury that Zehm had not committed a crime. 

Durkin pointed out to Preuninger that even Thompson described in his statement that he thought he was responding to a theft or “pre-robbery attempt.”

“You need to have use of force or threat of force” for the crime to be a robbery, Durkin said. “When you look at the (dispatch log) is there any description of use of force?”

Preuninger agreed dispatchers said nothing about use of force. But the two girls who called 911 “must have felt threatened” based on the report that they were scared enough to leave, Preuninger said.

Durkin asked Preuninger if he was aware that studies by the National Institute of Justice show that 2 percent of all police calls lead to officers using some level of force. 

Preuninger said he knew the number was low, but also said that officers can’t look at the world like regular citizens.

“If you approach law enforcement situations the same way you would a neighborhood meeting … it will directly lead to you getting murdered on the job or getting hurt or assaulted,” he said. “A police officer becomes an expert in evaluation of behavior or picking out little things that are different.”

Another experienced Spokane police officer, Detective Larry Bowman, testified earlier Wednesday and described how one call to check on a woman quickly ended with a man pushing a gun into his chest.

“He totally overwhelmed me. My gun was still in the holster halfway out,” Bowman said. “He totally overwhelmed my thought process. It wasn’t my time.”

Bowman said officers are trained to advance on suspects to make sure the officer keeps the initiative.

“I want to overwhelm their thinking so they don’t have an opportunity to come up with their own plan,” Bowman said. “You force that person back. The idea is to move on them and redirect their energy onto the ground.”

Under cross-examination by Durkin, Bowman conceded that he had only a couple of angles of the video when he made his initial report that Thompson followed training in his use of baton strikes on Zehm.

“Merely giving an officer a funny look doesn’t authorize an officer to use an impact weapon. Telling an officer to go to hell without more is not sufficient. Correct?” Durkin said. “You need a factual basis that (Zehm) will be or is about to be assaultive before you can use an impact weapon.”

“I would agree with that,” Bowman said.

Also Wednesday, attorneys completed the testimony of forensic video expert Michael Schott. He testified that he did not see a baton strike on Zehm until after Thompson shot Zehm with the Taser.

Prosecution experts and a half-dozen witnesses said Thompson delivered multiple baton strikes to the head and torso of Zehm, who fell to the ground as he held a 2-liter soda bottle. Only then did Thompson fire the Taser as one witness described Zehm as just lying there.

Victor Boutros, a trial attorney with the U.S. Department of Justice, asked Schott why he did not consider witness statements, or even Thompson’s statement, when trying to determine the first baton strike.

“When you are doing a forensic video examination … it’s intentional that I do not try to use witness statements to determine what I can get from the video,” Schott said. “If you have a video where it was not clear and you try to clarify witness statements that conflict, then you have muddied both waters. It doesn’t help.”