Police admit inaccurate account of fatal beating

Acting Spokane Police Chief Jim Nicks acknowledged Thursday that he gave inaccurate information while trying to defend his officers’ actions during a fatal struggle with Otto Zehm, the mentally disabled janitor beaten and hogtied by police four months ago.

The acknowledgement came shortly after a convenience store surveillance video that captured much of the March 18 confrontation was publicly shown for the first time. The footage contradicts key portions of Nicks’ earlier defense of the officers’ actions.

Spokane County Prosecutor Steve Tucker, who for months had kept the surveillance video sealed, authorized the release of the footage Thursday after being threatened with a public records lawsuit by The Spokesman-Review. Tucker has yet to announce whether he intends to file any criminal charges in connection with the case.

Although the video footage may appear damning, Nicks said it’s unfair to draw conclusions without the benefit of all the evidence available, including transcripts of the 911 call, information relayed to responding officers and actions that were obscured from view in the silent video.

“Whenever we have something of this magnitude, we do critique it,” Nicks said.

Still, he was unable to account for why he and others in the department continued to claim for months that Zehm “lunged” with a plastic soda bottle at the first officer on the scene, when the video shows the man retreating with his hands in the air.

“That’s the information provided to me at the scene based on the observations of the witnesses and officers,” Nicks said. “I have tried to provide you the information I had that was as accurate as possible at that point.”

Nicks also acknowledged that the video contradicts his earlier statements that officers followed proper procedure after Zehm, 36, was restrained by tying his feet and hands behind his back. Officers are trained to turn “hobbled” suspects onto their sides so they can “breathe without any inhibited body weight,” he said during a May 30 news conference, adding that Zehm was on his side “all” or a “majority” of the time.

In fact, the video shows Zehm spent most of the time on his stomach, which is a position that Spokane County Medical Examiner Sally Aiken listed as a contributing factor in his death. Aiken ruled that Zehm died as a result of homicide, which is death caused by another.

“I made it clear that during the press conference my impression was that he was on his side for a great portion of that time,” Nicks said. “So my impression obviously wasn’t quite accurate. But there was no intent to mislead or misdirect in any shape or form.”

Nicks said he discovered his mistake about a month after the May 30 news conference. Asked what he did to correct the public’s false impression of how the events unfolded, he replied: “I’m telling you right now.”

And, also for the first time, police confirmed that a plastic mask was placed over Zehm’s mouth and nose as he was hogtied on his belly. The oxygen mask was intended to prevent Zehm from spitting on officers, said Deputy Spokane Police Chief Al Odenthal, but it was never attached to an oxygen tank.

Odenthal downplayed the significance of the mask, saying it has a “large hole” that allowed for a free flow of air even though it wasn’t attached to an oxygen tube.

The Spokesman-Review obtained Spokane Fire Department records Thursday afternoon showing that paramedics gave police officers at the scene a clear plastic “non-rebreather” oxygen mask. The mask covers the nose and mouth and has just one hole about the size of a dime where the oxygen tube is supposed to attach.

Breean Beggs, of the Center for Justice, which is representing Zehm’s mother, said he viewed the video frame by frame, and the tape shows a paramedic giving an officer the mask to place on Zehm. About three minutes later, the video shows officers calling for help because Zehm had stopped breathing.

“This is a non-medical opinion,” Beggs said. “Based on the structure of the mask and the short amount of time between placing the mask on him and his breathing difficulties, there appears to be a connection.”

Paramedics immediately began attempts to resuscitate Zehm, and those efforts continued all the way to the hospital where he never regained consciousness and died two days later.

From the beginning of the case, police have described Zehm as a hostile, violent crime suspect who attacked officers and refused to obey orders.

The video, from inside the Zip Trip convenience store at 1712 N. Division, hardly conveys that image.

Zehm is seen entering the store and casually walking to a back aisle.

Moments later, Officer Karl Thompson comes running toward him after erroneously being told by a police dispatcher that Zehm had stolen money from a woman at a nearby cash machine.

At no time before being struck did Zehm “lunge” or “attack” the officer as police repeatedly claimed. Nor does it show him holding a plastic soda bottle, which authorities have argued was a threat to the officers’ safety. No bottle of soda is visible in Zehm’s hands at any point during the 35-minute video.

The video, which has no accompanying sound, failed to capture portions of the scuffle after Zehm was knocked to the ground by repeated blows from Thompson, who was one of 43 applicants for the job of Spokane police chief.

The footage shows Zehm lying on the floor looking up at Thompson who aimed his Taser and fired. Zehm then began to struggle intensely in a rolling battle on the floor that eventually included seven officers. Odenthal for the first time Thursday said Officer Steve Braun Jr. also applied two more Taser shocks during that struggle.

As officers finally controlled and hogtied Zehm, customers can be seen walking into the store and doing normal business. The video ends with images of paramedics wheeling Zehm out of the convenience store on a gurney.

Questions remain over how and why police were given some information about Zehm that the 911 caller apparently never provided.

At Thursday’s briefing, police released an audio copy of the 911 tape between a young-sounding woman who reported seeing a suspicious-acting man approach her Dodge Intrepid as she and a female friend used a drive-up cash machine at a Washington Trust Bank at Ruby and Indiana.

The department also released an audio file of the conversations between the police-radio dispatcher and the first officer sent to track down Zehm, who had walked from the bank to the nearby convenience store.

The dispatcher can clearly be heard saying that Zehm was “acting high.” But Beggs, the family’s attorney, pointed out that the woman never described Zehm in that way on the tapes.

“There is some screw up in dispatch,” Beggs said, regarding wrong information going to the officers. “That is a police screw up, not a witness screw up.”

The third item released was the video taken by the bank’s security camera at the ATM machine, showing Zehm approach only after the woman’s car pulled away. Odenthal said that video suggests, but doesn’t confirm, Zehm was attempting to push buttons on the machine.

Police made no attempt to recover fingerprints from the ATM machine, Odenthal said in response to questions.

While officials believe that Officer Thompson was told by a dispatcher that Zehm had stolen the woman’s cash from the ATM, no money was found on Zehm, Odenthal said.

Beggs, whose law firm had urged a public apology and a retraction from Nicks for the previous false characterizations of the struggle, thanked the acting chief for finally acknowledging the misstatements.

“To publicly admit you are wrong is difficult,” Beggs said. “We appreciate that he granted that request.”

Tucker said earlier this week that he hopes to determine whether any criminal charges will be filed in the case by the end of next week.

After the prosecutor renders his decision, Nicks said the department will begin its own separate internal examination of the incident to see if there needs to be policy, training or equipment changes.

Nicks, who previously said he believes his officers acted appropriately, said he hopes to finally get a resolution. “Sooner is better than later for us,” he said, “and for the community at large.”