High court scrutinizes 1999 riot

The Idaho Supreme Court assembled in a Coeur d’Alene courtroom Wednesday morning to consider whether police officers are protected from being sued for civil damages even if their actions cause injury during the course of an arrest.

The justices – on the road hearing appeals in North Idaho this week – were asked to consider whether the actions of two local police officers are shielded by qualified immunity in light of recent U.S. Supreme Court rulings on the issue. This is the first time the Idaho Supreme Court is revisiting qualified immunity for law enforcement under what is known as the Saucier test. The U.S. Supreme Court ruled on Saucier in 2001.

Wednesday morning the justices were asked to visit the corner of Fourth and Sherman in downtown Coeur d’Alene in the aftermath of a 1999 riot and take a look at an unfolding drama from two points of view.

Here’s one point of view: A hot night at the Car d’Lane auto show had just turned into Saturday morning when Michael Rosenberger approached a line of police officers at the corner. The 53-year-old Sandpoint man was angry, but stopped several feet away from police, asking to be allowed to reach his car in the next block; demanding to know why he was hit with a faceful of pepper spray, and why was his wife arrested, when they walked out of the Iron Horse Restaurant on Sherman moments earlier with another couple.

Thirty seconds later, Rosenberger was on the ground with a neck injury after Kootenai County Sheriff’s Deputy Kevin Mumford and Idaho State Police Trooper Gerald Stemm each grabbed an arm for a takedown move known as an arm bar. Rosenberger’s head struck the pavement during the takedown.

Here’s the second point of view: Mumford and Stemm were among 115 area police officers called to quell a riot in the aftermath of the Car d’Lane show and had spent an hour standing in a skirmish line pelted with insults and pizza slices and beer bottles from a rowdy crowd of about 2,000 people.

By the time Rosenberger approached, the police skirmish line had swept several blocks east along Sherman, firing foam bullets and pepper spray, but the officers securing the corner of Fourth and Sherman were still tense and people were still milling about. After instructing Rosenberger several times to go away, Mumford and Stemm made their move to arrest the middle-aged man before the still-agitated crowd at the corner got out of control again.

Rosenberger was among 14 people arrested in the aftermath of the infamous Car d’Lane Riot of June 19, 1999. He was convicted of obstructing an officer, but later sued for damages for his injury.

The trial was delayed when attorneys for Mumford and Stemm raised the issue of qualified immunity. First District Court Judge Charles Hosack issued a Feb. 11, 2002, memorandum that he would rule in Rosenberger’s favor on the issue of qualified immunity, but agreed to halt the suit until the state Supreme Court considered the new legal landscape in the wake of the federal Saucier ruling.

Saucier “is a two-step process and it’s sort of hyper-technical,” Darrin Murphey, a Coeur d’Alene attorney representing Mumford, said Wednesday. Even as he struggled to condense a long chain of case law into layman’s terms, Murphey, was excited. “This was my first appellate court argument.”

In the first step, Murphey said, a court is required to determine whether an officer’s conduct violated a constitutional right. For Rosenberger, that would be the right to be free of unreasonable search and seizure.

The second step considers whether the officer, under the particular circumstances, should have reasonably known whether that right was clearly established.

The second step “was the focus of this hearing,” Murphey said.

Howard argued that Rosenberger, enjoying a night out with friends, was unaware of the riot. He was stunned to walk out of the Iron Horse, get pepper-sprayed and watch his wife get arrested. He clearly was angry when he approached officers at the corner moments later, after washing the pepper spray from his eyes, but did not taunt or assault them, Howard said.

It is unreasonable that the two officers would suddenly jerk him to the ground in a fashion that caused injury, Howard argued.

Murphey contended that the picture is bigger than Rosenberger. “You need to focus on all of the circumstances and constraints facing the officers – safety for the officers, safety for the citizen, safety for property.”

A home video taken at the scene – while largely supporting Rosenberger’s account of the situation – also shows a crowd of people gathering to yell profanities at police and offer support of Rosenberger.

Several of the justices – Linda Copple Trout, Wayne Kidwell and Daniel Eismann – peppered Howard with questions about the arrest and the videotape.

“I thought the Supreme Court’s questions were right on point,” Murphey said. “They seem to have grasped the issues directly relevant” to the case.

“It’s an interesting analysis. You can see points on both sides: You want to give people who are injured some recourse, but from the other side there are policy reasons behind qualified immunity.”

The Idaho Supreme Court isn’t expected to issue a decision for several months.