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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

City paid cop who kicked suspect

By Bill Morlin and Karen Dorn Steele The Spokesman-Review

Last summer, a tight-lipped Spokane City Council voted to pay $43,214 to rehire a police sergeant who was fired after an internal investigation found he’d used excessive force by kicking a suspect high on drugs while the man was being restrained by several other officers.

The public was never told the name of the police sergeant or about the incident in Spokane’s West Central neighborhood late at night on Jan. 24, 2004.

But now, after a 15-month public records battle with City Hall, The Spokesman-Review has obtained internal police reports describing how Sgt. Jerry Hensley kicked the drug-intoxicated man in the chest. The suspect, whose identity has not been revealed, lapsed into unconsciousness and required medical treatment at a hospital.

The same internal affairs reports detail the shocked reactions of many of Hensley’s fellow officers who witnessed the kick – and reported to department chiefs what they believed was either inappropriate or criminal conduct.

Despite the near-total secrecy of the details of Hensley’s 2005 rehiring, discussed only in City Council executive session, Spokane taxpayers continue to pay $67,734 a year to employ Hensley as a detective – a demotion from his previous rank of sergeant.

As a condition of his rehiring, Hensley was prevented from talking about the incident for five years, Spokane Police Department spokesman Cpl. Tom Lee said last week.

“I wanted to reaffirm with you that part of my settlement agreement with the city bans me speaking about that incident, although I appreciate the fact that you called me to ask me about it,” Hensley said last week.

“It’s just not possible for me to make a comment.” said Hensley, currently assigned to the department’s special investigation unit.

Like the controversial cases of Otto Zehm and the firefighter sex scandal, the Hensley incident illustrates how Spokane police are accustomed to investigating their own in secrecy.

Spokane residents are not allowed direct access to information on misdeeds and discipline involving the public law enforcement servants they employ. Instead, the public receives only annual statistical reports from the police Internal Affairs division on whether complaints against unidentified officers were deemed “justified force” or “unjustified force.”

The Hensley case was not reviewed by the city’s mostly inactive citizen’s review board, nor was there an independent review of the internal affairs investigation – a practice that is routine in an increasing number of other cities including Boise, Portland and Seattle.

The Hensley episode also shows that even when discipline is imposed on police in Spokane, the system works to protect the privacy and employment interests of the individual officer whose union contract allows a choice between appearing before a public Civil Service hearing or closed-door arbitration.

Bob Apple was the only City Council member opposed to the $43,214 emergency budget amendment to hire Hensley back at the lower rank of detective.

That amount, representing a vacant patrol officer’s position, was misleading because when he was reinstated as a detective, Hensley’s pay was at least $24,000 more.

Deputy Mayor Jack Lynch told the City Council only that the emergency ordinance involved an appropriation of public funds to pay for an officer “reduced in rank in lieu of termination after arbitration,” according to audio tapes of the June 20, 2005, council meeting.

Hensley’s name and the details surrounding his discipline are not in the briefing files given to council members, nor were they placed in any public records on file at the offices of city clerk, human resources or civil service, nor were they discussed publicly at the council meeting where the vote was 6-1 to rehire him.

“Any comments from the public?” then-Council President Dennis Hession asked before the June 20 council vote.

There were none.

Reached Friday at his office, Mayor Hession said he had only a “vague recollection” of the Hensley case, but acknowledged that the public should have been informed.

“It is important that the public know about these sorts of things as we work very hard to bolster the credibility of the police department,” Hession said. “That’s certainly my goal.”

Hession said it’s important that the city’s police officers are “trusted and respected by our citizens,” and that will only occur when there is transparency on all department issues, including discipline. “It’s absolutely critical,” he said.

The secrecy surrounding the Hensley discipline still irritates Apple, a member of the council’s Public Safety Committee, which also never reviewed the case.

“If there already were grounds to terminate this guy, he should have been terminated,” Apple said last week. The public has a right to know the details of misconduct by police officers, but there is no push for transparency at City Hall, he added.

“They are more worried about lawsuits down here than doing the right thing,” Apple said.

It will be up to Hession and Spokane’s new police chief, Anne Kirkpatrick, to decide whether to continue with internal investigations controlled solely by the police department or push for reforms allowing greater independent oversight – systems that other Northwest cities already have in place.

The Spokesman-Review requested the Hensley records in June 2005. Documents describing the police department’s criminal and internal affairs investigations were released last week.

With the exception of Hensley, the identities of the on-scene officers and the suspect are blacked out in the reports provided to the newspaper. But they give this detail:

About 11 p.m. on Jan. 24, 2004, a dozen police officers responded after someone reported a truck idling in the alley at 910 N. Cochran with a man thrashing around inside. He was believed to be high on meth, the police reports say.

The officers pulled the skinny, 140-pound man out of the car and stripped off his hooded sweatshirt after he began fighting them.

One officer applied a choke hold after the suspect was forced to his knees. While he was still flailing, Hensley yelled at the suspect to stop fighting before kicking him hard in the chest with his boot.

Most of the officers who witnessed the kick said it wasn’t justified.

“It was definitely excessive force … we don’t teach kicking in the chest by anybody for any reason,” said one officer interviewed on Feb. 5, 2004, by Detective Sgt. Joe Peterson, who handled the department’s criminal investigation.

Peterson asked the officer why he thought Hensley’s kick wasn’t justified when many levels of force – including shooting to kill – are allowable in some circumstances.

“Because at that point he wasn’t being assaultive to anybody,” the officer replied.

The same officer said he didn’t confront Hensley afterward because “he’s a sergeant and, uh, I was pretty mad to say the least and, uh, I just didn’t want to get in trouble for something I might have said.”

Another patrol officer who saw the kick said he pulled aside a younger cop at the scene and advised him, “Make sure you never do stuff like that,” according to the report.

Another rookie on a ride-along that night said the officer he was with was “visibly upset” over the kick.

“He muttered, ‘that was totally uncalled for,’ ” the rookie related in an interview with Lt. Jim Lundgren for the internal affairs investigation that followed Peterson’s criminal inquiry.

The young officer told investigators he was not concerned about retaliation from Hensley – which several other witnesses were worried about – because “I spoke the truth.”

In all, nine of the 12 police witnesses interviewed said Hensley’s kick was wrong.

The first officers on the scene radioed that the situation was a “Code 6,” meaning additional backup officers were needed immediately. But the reports don’t explain why a dozen officers – a majority of those on duty in the city at the time – were needed to restrain one slight man in a drug stupor.

Ultimately, the suspect was given only a traffic infraction for blocking a driveway. He spent the night in the hospital under a mental watch and was released the next day, records show.

“I looked out my window and saw them literally drag him across the street,” said a 69-year-old eyewitness when contacted at her West Central home where the incident occurred. She asked not to be identified, fearing “police reprisal.”

“The guy was so out of it, they didn’t need to do that,” said the retired counselor. “He wasn’t fighting that much at all, from what I saw. There was no reason for any of it.”

The officer who applied the choke hold, which he described as a technique to make the struggling man pass out so officers could handcuff him, said the suspect “gave a big gasp” when Hensley kicked him. “He then went unconscious,” the officer said.

Hensley defended himself in a Feb. 9, 2004, interview with Sgt. Peterson, whose criminal investigation concluded without charges being filed. The suspect was in a drug-induced frenzy, and his kick was “absolutely not” excessive force, Hensley said.

It was “one sharp kick to get him to stop his conduct. It wasn’t repeated. I did it once, I did it hard,” Hensley told Peterson, according to the reports.

Peterson questioned Hensley – the senior officer on the scene that night – as to why he wrote his own “Use of Force” report that concluded the force was within department guidelines. Hensley’s report describes the other officer’s choke hold – but omits his own kick.

“There’s no mention in your report that you kicked the guy,” Peterson said.

“I forgot to write in it I kicked him. I wasn’t trying to cover anything up,” Hensley responded, conceding his omission was “an error.”

It’s not department protocol for an officer involved in a use of force incident to make a ruling on whether his own use of force is justified, Peterson noted. He said the other sergeant on duty that night should have made that call.

Several officers interviewed by Lundgren and Peterson said they’d witnessed Hensley being violent to other suspects and were leery of working with him.

In another interview conducted by Peterson, one police witness was asked if he was afraid of Hensley.

“Not afraid. But he is a bully. He will pick on people and make their life miserable,” the police officer said.

A female officer interviewed by Lundgren described herself as a friend and workout partner of Hensley’s and said other police officers, including several on the SWAT team, thought it was “BS” that Hensley was being investigated.

Former Police Chief Roger Bragdon placed Hensley on paid administrative leave during the department investigation. Hensley was interviewed a second time by Lundgren – with Spokane Police Guild president Chuck Reisenauer and attorney Chris Vick present – on March 4, 2004, as part of the department’s internal affairs investigation.

Vick, the Spokane Police Guild’s lead attorney, is a partner in a Seattle firm that represents most of the police guilds on the West Coast. He has represented local guild members for years, said Cliff Walter, a former Spokane Police Guild president who also was present for Hensley’s internal affairs interview.

In that interview, Hensley told Lundgren that he never added the kick to his unfinished report and didn’t include his own name on the list of officers using force.

He also noted that Chief Bragdon “made it very clear to me that he would fire me if I spoke to anyone about this incident” and added that he’d discussed it only with his attorney.

Bragdon decided to fire Hensley, who appealed the decision.

Bragdon, now retired, did not return a phone call seeking comment.

Under the Spokane Police Guild’s contract with the city, Hensley could either appeal his firing to the City Civil Service Commission or ask for arbitration – the option he chose.

“If it had gone to Civil Service, there would have been a public hearing,” said Mike Shea, the city’s personnel chief. “Arbitration is done behind closed doors, and only the arbitrator’s final ruling is made public.”

But California arbitrator Joe Henderson, whose fees were paid by city taxpayers, had not rendered his decision before a compromise was hammered out between city attorneys and Vick: Hensley would be rehired and demoted one rank.

Hensley remained on paid leave while the matter was sorted out. It can’t be determined from city records how long that leave lasted.

Reporter Thomas Clouse contributed to this story.