May 16, 2012 in City

Otto Zehm family reaches settlement with Spokane

By The Spokesman-Review
 
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U.S. District Court Judge Michael Hogan, of Oregon, right, who served as mediator, talks about the $1.67 million out-of-court settlement in the Otto Zehm case on Tuesday.
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The family of Otto Zehm will get the apology they sought for more than six years as Spokane city officials agreed Tuesday to settle a civil lawsuit against nine police officers for $1.67 million.

U.S. District Court Judge Michael Hogan, of Oregon, who directed the mediation along with Sandpoint attorney Ford Elsaesser, said Tuesday he will ensure that both sides get what they were promised as specific terms are ironed out in weeks to come.

“I’m hopeful that we will see a new day … for the relationship between law enforcement and the public of Spokane,” Hogan said. “What was remarkable was the openness for constructive suggestions to resolve this matter and put it in the city’s rearview mirror.”

The deal calls for a formal apology, a recommendation to name a permanent structure in a city park in honor of Zehm, crisis intervention training for all Spokane police officers who have not received it and $50,000 for a consultant to advise the city about updates to its use-of-force policy.

“I know he would have been happy,” said Dale Zehm, Otto Zehm’s cousin. “We don’t want this to happen to anybody else ever again. Hopefully, from these policies, that won’t happen again.”

City Attorney Nancy Isserlis said she could not take back the 2009 court filing that blamed Zehm for the unprovoked beating, which occurred after two young women erroneously accused him of stealing money from a nearby ATM machine.

But the settlement ends the lawsuit, which eliminates the need to take the case before a Spokane jury.

“It’s the right thing to do,” Isserlis said. “I’m just happy that it’s over.”

The settlement is subject to approval by the Spokane City Council, but officials Tuesday said they expect swift ratification.

After his election last fall, Spokane Mayor David Condon said restoring trust in the police was his highest priority. He sat in on both days of mediation, which he called a first step toward his goal.

“Today, we not only have finality for our citizens but also for Mrs. Zehm,” Condon said, referring to Otto’s mother, Ann Zehm. “Truly we cannot change the past, but we can acknowledge our mistakes and move forward for a better future for our community.”

Before Hogan signed off on the deal, he visited early Tuesday with Ann Zehm.

“There will be an apology for any allegations that Otto Zehm had committed a criminal violation and for the manner the confrontation was handled and for its tragic result,” Hogan said. “The hope is this will provide her a sense of peace.”

The lawsuit was filed in 2009 by attorneys Jeffry Finer and Breean Beggs on Ann Zehm’s behalf and for the estate of her son, a mentally ill janitor who died two days after his encounter with police inside a north Spokane convenience store on March 18, 2006.

A decorated, veteran officer, Karl F. Thompson Jr., was the first to respond to the erroneous theft call. An in-store video showed that Thompson immediately engaged the retreating Zehm and began striking him with a police baton. Zehm held a 2-liter soda bottle in front of his face during the encounter in which he also was shocked with a Taser.

Several other officers joined the struggle and hog-tied Zehm and placed him on his stomach for several minutes before he stopped breathing. The last thing officers heard Zehm say: “All I wanted was a Snickers.”

On the night of the confrontation, Acting police Chief Jim Nicks said Zehm “lunged” and “attacked” Thompson, which was the beginning of what one U.S. Department of Justice official later said was an “extensive cover-up.”

After Spokane County Prosecutor Steve Tucker took no action, the Federal Bureau of Investigation took over and eventually charged Thompson with using excessive force and lying to investigators. A jury last November convicted Thompson, who awaits sentencing as defense attorney Carl Oreskovich fights to get him a new trial.

Two more police officers, Tim Moses and Sandra McIntyre, may also face obstruction charges as part of the ongoing investigation.

In the civil case, U.S. District Court Judge Lonny Suko halted proceedings in fall 2009 after federal prosecutors alleged that Assistant City Attorney Rocky Treppiedi – who was fired last month – was improperly using information gleaned from the case to help defend Thompson against criminal charges.

Beggs, the family attorney, said he feared Ann Zehm would not live to see the case resolved.

“Mrs. Zehm did not want to have to go through a trial,” he said.

The parties had picked out a pavilion, basically a covered picnic shelter, near the Spokane River to name in honor of Zehm. But Ann Zehm said she would prefer something in Mission Park, which is where her son liked to spend time, Beggs said.

“It might be a playfield or a picnic pavilion but something permanent in a city park,” Beggs said. “We are still working on it.”

Both Finer and Beggs said they were willing to forgo monetary demands to get commitments from the city to further train its officers to avoid similar situations in the future.

“The effort is to take a tragedy and make a gift out of this,” Finer said.

But Beggs also said he doesn’t believe the department would have begun to change its culture without the protracted legal fight.

Zehm “achieved in death so much more than he ever imagined,” Beggs said. “The city has completely changed its attitude both in regards to this case and to police reform.”

But that struggle did not come without pain. Dale Zehm was sitting in the federal courtroom when about 50 officers saluted Thompson as he was taken into custody last November.

“That was not enjoyable,” Zehm said. “Hopefully, we can get over that with what’s happened in the last two days. We are looking forward to the change, and some closure.”

Reporter Jonathan Brunt contributed to this report.

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