Lawyer added in rights case
Citing “exceptional circumstances,” a federal judge has appointed a local civil rights attorney to represent an indigent man who sued the Spokane Police Department and one of its detectives last year after being strip-searched without a warrant in a 2005 drug sting.
If successful, the civil rights case could change the Police Department’s procedures for searching suspects.
In a March 22 order, U.S. District Judge Robert Whaley said he was exercising his discretion to appoint Center for Justice lawyer Breean Beggs to represent John Burton, who had no attorney and was in jail on two drug charges when he filed his civil rights complaint in November. Burton had asked for a lawyer in a motion to the court.
A judge’s authority to appoint counsel for an indigent man may be exercised only in “exceptional circumstances,” Whaley said in his order.
Burton “asserts that he was arrested and strip searched in violation of his constitutional rights. The Court concludes that Plaintiff has shown that he has a high likelihood of success on the merits” and is unable to effectively represent himself, Whaley’s order says.
The 9th U.S. Circuit Court of Appeals has ruled that it’s illegal to strip-search a suspect without a warrant outside of a jail or prison, but the Spokane Police Department routinely allows strip-searches to be conducted without a warrant, according to Beggs, who filed new motions Friday in the case.
“The Spokane Police Department is directly responsible for the violation of Mr. Burton’s constitutional rights,” and the individual officers should be held accountable, Beggs says in his motion.
In court documents, the city admits that Burton was strip-searched for weapons and contraband during the arrest but contends his arrest was lawful and the officers involved are immune from prosecution. Spokane Police Chief Anne Kirkpatrick could not be reached for comment on Friday.
During the drug sting at a house in the West Central neighborhood on March 10, 2005, Detective Larry Bowman and Senior Police Officer Michael McNab searched Burton’s hair, mouth, ears, clothing and shoes. Bowman then ordered Burton to remove his underwear and searched his buttocks for drugs, according to Beggs’ motion for summary judgment. No drugs were found.
The search “was unreasonable because it was not conducted pursuant to a warrant or an established warrant exception,” violating Burton’s Fourth Amendment rights, and Burton was “forced to sit in the nude while the SPD made jokes about whether he had been sexually assaulted in the past,” according to Beggs’ motion.
In its answer, the city denies that the police officers made fun of Burton.
Last November, while an inmate at the Spokane County Jail, Burton filed a federal complaint against the Police Department and Bowman for civil rights violations during the 2005 sting. Although no drugs were found on Burton that day, he was arrested for two counts of delivery of a controlled substance for two previous incidents on Feb. 24 and March 1, 2005, when he was found with drugs.
On Jan. 26 of this year, city attorneys countersued Burton, saying his lawsuit is “unfounded, malicious, and without probable cause.” The city is seeking damages and attorney’s fees from Burton.
Countersuits against civil rights plaintiffs are filed routinely by city lawyers, a controversial tactic that’s used far more often in Spokane than in other Washington state jurisdictions, including Spokane County, a Spokesman-Review investigation of a decade’s worth of claims against the police published March 25 concluded.