February 5, 2012 in City

Panel will review police policies, procedures

Civic leaders press need for accountability
By The Spokesman-Review
 
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Background and the latest updates

To understand why the Spokane Police Department’s use-of-force training is under a microscope, consider this disconnect: Although the state’s top police trainer concluded that the fatal 2006 confrontation with unarmed janitor Otto Zehm was indefensible, the department’s own instructors and the city’s legal advisers have insisted that Spokane police officers were justified and handled the encounter appropriately.

Here is how Spokane police Officer Terry Preuninger, a department training instructor, defended Officer Karl F. Thompson Jr.’s decision to beat and shock the retreating Zehm: “If the officer believes that they were in danger, then that use of force would be authorized,” Preuninger told a federal jury in October, adding that there doesn’t have to be a “factual basis” for the officer’s fear of harm.

A defensive tactics instructor for the Washington Criminal Justice Training Commission saw Thompson’s actions differently, as did the federal jury that convicted Thompson of using excessive force and lying to cover it up.

“Given the lack of reasoning for the use of force, everything that follows doesn’t serve a legitimate law enforcement purpose,” Robert Bragg, who directs use-of-force training for all police recruits at Washington’s police academy, said at Thompson’s trial.

Now, the city is trying to pick up the pieces and move forward.

A special panel – including a former U.S. attorney, a retired state Supreme Court chief justice and others – is set to investigate the Spokane Police Department’s use-of-force training and practices next month in a review that will extend beyond the Zehm case.

With such sharp disagreement over when police use of force is warranted, community leaders say that it’s a necessary examination.

“There’s a high risk of an officer, who is following the training as I heard it described on the stand, violating the constitutional rights of subjects, detainees and others, while believing that they’re doing only what they’re trained to do,” said Jeffry Finer, a civil-rights attorney who represents Zehm’s family. “If I take them at their word, it appeared to me that the training concepts are so easily distorted that it would not provide good guidance to an officer in the field.”

Interim Spokane police Chief Scott Stephens said he believes the city’s officers are trained properly, though he supports internal and external reviews of the department’s use of force.

“We believe that what we’re doing is current and has good practice and good application, but if there are things that we do that need to change, we’d like to know that so that we can make those changes.”

Use of force is a broad term referring to how law enforcement officers compel compliance from unwilling individuals. It can include everything from physical contact and baton strikes to Taser jolts and gunfire, with strict rules established for when escalating levels of force are warranted.

Former police Chief Anne Kirkpatrick, who retired at the end of last year, said the department’s policies, which were revamped during her tenure, likely will withstand scrutiny from the Department of Justice and others.

“I doubt they’ll say the policies and procedures are wrong,” Kirkpatrick said in an interview late last year. “They’ll probably come back and say your interpretation of it is what the issue is, not that you don’t have good policies and procedures. You can have a speeding law, but if your interpretation is that you get to really go 10 miles over, then your problem is your interpretation, not the policy and the law. And that’s what needs to be assessed.”

Reform measures on Monday’s agenda

Zehm was beaten, shocked with a Taser and hog-tied by Thompson and other officers with little warning. He lost consciousness inside a North Side Zip Trip store and died two days later. Officers were called to the scene by two women who saw Zehm acting erratically at an ATM and mistakenly believed he had stolen money. Video from the Zip Trip shows Zehm retreating as he is being struck by Thompson, who claimed Zehm was the aggressor.

Since his election in November, Spokane Mayor David Condon and other city leaders have moved to address how force is used in the police department. Condon’s transition team that examined public safety started its final report by recommending that the police department “de-militarize.”

The Spokane City Council on Monday likely will endorse a list of police reform measures, including the purchase of body cameras that would film officers’ interactions with the public.

The new city commission that will investigate use-of-force training is set to start this month. Former Mayor Mary Verner asked the U.S. Department of Justice to conduct its own investigation into the department’s practices and procedures. Federal officials have yet to announce whether they will move ahead with that review.

“The best legacy I think that we can leave to our citizens is to learn from our experiences over the past couple of years and make changes that benefit the entirety of our community,” Condon said.

Call for change widespread

Despite these steps, city officials, with the exception of Assistant Chief Jim Nicks, have been mum on key questions surrounding the case. Leaders have said they accept the jury’s verdict, have called for healing and, in some cases, for reform. But administrators within the department and at City Hall have declined to say whether Thompson’s behavior was wrong, saying they can’t comment because a lawsuit from Zehm’s family hasn’t been settled.

“If you ask me that same question once the civil matter is all completed I’d be more than happy to answer that question for you,” Stephens said in an interview last week.

Deb Abrahamson, founder of the SHAWL Society, a Spokane Tribe-based group that has pushed for police reform, said she’s pessimistic about new efforts, given other attempts at reform that didn’t create the kind of accountability or transparency needed for true change.

“From our experience, the cloak of protection seems to always prevail,” she said.

Civil rights leaders have long criticized how force is used not only by Spokane Police Department officers, but also by Spokane County sheriff’s deputies and within the Spokane County Jail. Zehm’s encounter with police, along with a large spike in shootings by local law enforcement officers in the past few years, have made the call for police reform within the community far more mainstream.

‘Reasonable’ is key

One of the key discrepancies between how Spokane trains its police officers and other training protocols was shown in testimony from Preuninger, the department’s training officer. He said an officer can use force whenever he or she perceives a subject is about to become violent, even if the officer’s perception isn’t supported by facts.

“A police officer can make a mistake. A police officer can absolutely believe their life was in danger or that they were in danger of being assaulted when in fact with hindsight we could go back and determine that that was not true,” Preuninger said on the stand during the Thompson trial. “But if the officer believes that they were in danger, then that use of force would be authorized.”

Asked if an officer needs to have a “reasonably factual basis supporting the subjective belief” that force is necessary, Preuninger answered, “No.”

Finer, the civil-rights attorney, said Preuninger’s answer would mean that officers could “engage in the use of force in almost any circumstance” because no one could second-guess an officer.

However, Preuninger’s answer mirrors the city’s legal position that what matters in use-of-force cases is only what the accused officer perceives, regardless of whether it’s supported by facts.

“When reviewing the actions of a police officer under the law, the law requires the scrutiny to be taken from the perspective of the involved officer. Neither judges, nor juries, nor litigants, nor anyone else can substitute their own judgment for that of the involved officer under the law,” wrote Assistant City Attorney Rocky Treppiedi in a 2006 letter to the Center for Justice about the Zehm case.

But other legal experts note that the U.S. Supreme Court has said that the constitutionality of using force must be judged by what “a reasonable officer” would perceive under the same circumstances, not on what “the officer” perceived.

Stephens, the interim chief, said he agrees that officers need to use force that is “reasonable under the circumstances.”

“When an officer is making that use-of-force decision, there is a wide variety of force that is available based on their discretion, but they still need to be able to articulate and justify the force that they chose to use,” Stephens said.

Greg Connor, a University of Illinois professor emeritus who developed protocol that used to be included in the Spokane Police Department’s procedures on the use of force, said in an interview that not only does an officer need to perceive that a subject is about to become violent in order to use force against him or her, the officer’s perception must be deemed “reasonable.”

He said, for instance, it would be difficult to perceive that a subject is about to assault an officer when the subject is moving away from the officer.

‘Bigger than’ Zehm case

The city’s new Use of Force Commission is expected to begin meeting this month and to complete its review this summer. Department of Justice officials have accused the city of orchestrating a coverup to protect Thompson. Among the questions city officials have refused to answer is why they told the Zehm family in 2009 that Thompson acted within protocol even though by that time Nicks, who was the interim chief of the department when Zehm was confronted, had reached a different conclusion.

Since Verner first proposed the idea, the commission’s scope has broadened to consider use-of-force issues that may be unrelated to the Zehm case. 

Earl Martin, the former dean of Gonzaga University Law School who is leading the commission, said the specifics of the Zehm case will be examined, but other examples and issues also will be addressed, including how to improve civilian police oversight.

“The issue is bigger than one individual case,” he said.

Condon said that although use of force may take priority, he still expects the committee to consider key aspects of the Zehm case, including the handling of the case by the city attorney’s office.

The city will hire an outside attorney to provide independent legal advice to the Use of Force Commission, Condon said. The body won’t have subpoena power, but Condon said he expects all employees, including city attorneys, to cooperate. 

Connor, the police training consultant, said the key principle for any department is to remember that officers are “working with and for the public.”

“Law enforcement is not an easy career, but it’s going to be less easy when we get further and further away from the people we’re required to protect.”

Meghann M. Cuniff contributed to this report.

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