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Spokane, Washington  Est. May 19, 1883
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Payouts, countersuits revealed

By Karen Dorn Steele and Bill Morlin The Spokesman-Review

Over the past decade, the city of Spokane has paid out $2.5 million to settle a variety of claims against the Police Department.

Through its self-insured liability fund, the city has paid settlements in 303 of 724 claims for injuries, property damage and civil rights violations since 1996, according to a claims database obtained from the city by The Spokesman-Review in a public records request. The remaining 421 claims were denied.

More than half of the $2.5 million went into a 1997 settlement with the Spokane Gypsy family of Grover and Jimmy Marks after illegal police searches of their homes in 1986 – an event that sparked 11 years of litigation and grew into Spokane’s most notorious civil rights case. Spokane County contributed $390,000 to the $1.43 million settlement.

The newspaper’s review of two dozen recent civil rights claims shows the city routinely countersues citizens who file those kinds of claims – including in the Gypsy case – accusing them of “conspiracy to misuse the judicial process.” Since 1996, civil rights complaints have accounted for more than 10 percent of the 303 citizen complaints that have resulted in settlements against the Police Department.

The practice of countersuing by the city attorney’s office is “surprising” and should be more closely examined, said Sam Pailca, a Seattle lawyer and former head of Seattle’s police oversight agency. Pailca is helping Spokane Police Chief Anne Kirkpatrick with a proposal for a better oversight system that will be presented to the City Council for consideration this spring.

“I’m unaware of (countersuits) being a pattern in other cities. It would certainly raise questions that merit further study,” Pailca said.

Critics say the countersuit tactic – allowable under a Washington statute intended to protect police officers from frivolous lawsuits – has a chilling effect on legitimate claims and may be overused in Spokane.

“They do this in their pleadings to intimidate plaintiffs. They add these counterclaims in every case,” said Richard Wall, a former Spokane County deputy prosecutor who recently represented Mackenzie Bristow, a young woman accused of forgery by a Spokane police detective.

Bristow was arrested without a warrant, jailed and temporarily lost her job two years ago before charges against her were dropped. When she sued the city for violating her civil rights, she was countersued for “malicious prosecution.”

The City Council voted Nov. 6, 2006, to pay Bristow $125,000 to settle her 2005 civil rights suit against the city.

Former Spokane County Prosecutor Jim Sweetser said the tactic of countersuing is meant “to scare us off.” Sweetser, who is now in private practice, filed a $1 million claim against the city last month on behalf of North Side resident Bob DeMotte. DeMotte said he was treated with hostility by the Spokane Citizens Review Commission after he complained about the way police handled a neighborhood fracas last year.

City attorneys “have an aggressive defensive stance. The little guy doesn’t have the resources to fight them,” Sweetser said.

Countersuits against civil rights plaintiffs in Spokane are “very common,” said David Blair-Loy, a former Center for Justice attorney who is now legal director for the American Civil Liberties Union’s San Diego office.

Blair-Loy represented Chrys Ostrander, a local organic farmer arrested in a traffic stop the courts ruled was an illegal “pretext stop.” After Ostrander filed a federal civil rights suit, the city attorney’s office countersued for malicious prosecution and defamation.

Ostrander made “outlandish statements” about Detective Craig Madsen, the Spokane police officer involved in the arrest, Assistant City Attorney Rocky Treppiedi said in an interview last year.

“We file malicious prosecution charges when we believe there are not facts that support the allegation,” Treppiedi added.

Blair-Loy calls Treppiedi’s defamation claim “ludicrous.”

Police officers are public officials who fall under strict legal rules for libel that require proof of “reckless disregard” for the truth before a charge is filed, Blair-Loy said.

“If you make a defamation charge, you have to prove the person knew he was lying. There was zero evidence of this,” Blair-Loy said.

A 9th U.S. Circuit Court of Appeals panel tossed out the city’s malicious prosecution and defamation claims, saying the city had no evidence to support them. The City Council paid Ostrander $20,000 in 2003 to settle the case.

If the city is routinely using countersuits as a standard litigation tactic, “it’s inappropriate and possibly unethical,” Blair-Loy said.

The practice is less common in other jurisdictions.

Spokane County prosecutors currently are handling about a dozen citizen lawsuits involving the jail and Sheriff’s Office, and have filed no countersuits against any of those plaintiffs, said Rob Binger, a deputy prosecuting attorney for 20 years who heads the county’s Risk Management Litigation Team.

“In the county’s practice, we don’t do that very often. The percentage is very low,” Binger said.

Under its contract with the Seattle Police Officers’ Guild, Seattle uses an outside law firm to handle any lawsuits against police officers but oversees litigation strategy, said Sean Sheehan, head of the Torts Division for the Seattle city attorney’s office.

Attorneys filing such claims have a legal duty to use countersuits only when there is strong evidence a claim is “knowingly false or malicious,” Sheehan said. Otherwise, it’s a violation of lawyer ethics rules, Sheehan added.

“My best estimate is that such claims are filed in less than 10 percent of our (police) cases,” Sheehan said.

Jim Craven, Spokane’s new city attorney recruited by Mayor Dennis Hession last year, said countersuits are often used to send a message: “We’re going to defend this case come heck or high water.” But the legal tests of malice and defamation are hard to prove, Craven said.

While it may have been the city’s past legal strategy, it’s not his intent to use such “template” countersuits routinely, Craven added, noting he hasn’t reviewed the use of the practice at City Hall.

Treppiedi, the assistant city attorney whose name appears on most of the countersuits over the last decade, said he doesn’t believe he’s overused the practice.

“When we answer a lawsuit in court, we also determine if a counterclaim is warranted based upon the facts and information we gather, and the law. Sometimes the counterclaim goes to trial, sometimes not,” Treppiedi said in a recent written response to the newspaper’s questions.

“I have never – ever – filed a pleading in court without a legal and factual basis behind it,” Treppiedi added.

The city’s countersuits have sometimes been successful. In 1999, a Spokane County Superior Court jury ruled that Spokane police officers did not use excessive force while arresting Ed and Norma Dahlen in their home a decade earlier and granted $2,000 each to the four officers sued by the couple. But the city failed to submit its bill to the court for three years, and Norma Dahlen died in the interim. Due to her death and to the city’s delay, Judge Linda Tompkins cut the judgment to $500 per officer and awarded the city $575 in costs in 2002, court documents show.

In 1998, a U.S. District Court jury ruled two police officers did not use excessive force in the 1994 shooting of Sidney McDermott. However, the jury refused to grant Treppiedi’s request to declare that the $9 million civil suit filed by McDermott’s family – including his widow and five children – amounted to malicious prosecution.

Spokane attorney Robert Critchlow faced a countersuit from Treppiedi in 1999.

Critchlow went to court seeking damages for a police raid on his East Rockwell home at 4:17 a.m. on May 4, 1997. When Critchlow told police they had no right to conduct a warrantless search, he and his fiancée, Kimberly Bates, were arrested and detained for five hours and their request to speak to an attorney was repeatedly denied, according to Critchlow’s claim.

Police eventually obtained a warrant but found nothing in their search. Three days later, police searched the house next door and found a marijuana-growing operation, arresting two of Critchlow’s neighbors.

Critchlow filed a $75,000 claim against the city, which was denied. He then filed a $2.25 million civil rights lawsuit in U.S. District Court against the city and eight police officers. Critchlow’s federal case was dismissed; while it was on appeal, Critchlow and the city settled in 2001 for $7,500.

Bates received a $16,000 settlement in April 2000, the records show.

In her claim, Bates said she was an innocent victim of the wrongful search of Critchlow’s home and was humiliated by officers who detained her for several hours in a patrol car and allegedly threatened her, saying, “Mr. Lawyer’s going down.” When she asked to use a bathroom, Bates, who was 25 at the time, was handcuffed in her nightgown and led barefoot by police through a busy pancake house on North Division, according to her claim.

The city also countersued Bates, saying her allegations constituted a “conspiracy to misuse the judicial process.”

Critchlow said his settlement agreement with the city attorney’s office forbids him from discussing his case. The newspaper obtained the settlement papers in a public records request.

Claims hard to pursue

The city pays for its law enforcement mishaps out of a liability fund set up in the mid-1980s after an actuarial study showed it was cheaper for the city to be self-insured than to pay an insurance company for coverage, said Pam Schroeder, the city’s risk manager. Spokane carries $1 million in its self-insured general liability policy and $10 million in excess general and automobile liability insurance, Schroeder said.

Pursuing a claim against the city is difficult, case files show.

After 60 days, citizens whose claims are denied must go to court. If they are successfully countersued, they must pay the legal fees of the city’s attorney. If they get a settlement, they are often asked to sign papers agreeing not to discuss their cases or further “disparage” the police.

The Washington state Legislature allowed countersuits to protect law enforcement officials from frivolous lawsuits. A police officer can collect up to $1,000, plus attorney’s fees, if malicious prosecution is proved. The city’s countersuits, however, often fail because the city has to prove the claim was frivolous.

State lawmakers probably didn’t anticipate countersuits would be used so often by lawyers defending the police, said Breean Beggs of the Center for Justice, a public-interest law firm.

“It’s an extra risk to citizens,” he said.

Police guilds also use other tactics to discourage complaints and claims against their members.

In 1994, lawyers for the Seattle Police Officers’ Guild filed defamation suits against six citizens who filed internal complaints with the police that weren’t upheld. Those suits were eventually dropped, but citizen complaints in Seattle dipped almost 75 percent that year, according to the Seattle Times.

There are several other factors that make it difficult for citizens to win a police-related claim.

Most of the individual settlements are modest, which can be an economic disincentive to plaintiffs’ lawyers to take the case in the first place, said Wall.

It also remains very difficult in Spokane – or anywhere else – to convince a jury of police misconduct, said Beggs, one of the lawyers representing the family of Otto Zehm, the mentally ill janitor who died after a police beating last March.

“You need a video, an honest police report, or witnesses. Jurors defer to the police unless there’s solid evidence of wrongdoing,” Beggs said.

There are more lawyers in Western Washington who do police misconduct cases than in Spokane, said Beggs, who used to practice in Bellingham.”In an isolated area like Spokane, there aren’t many. And these cases don’t settle easily – they don’t want to encourage people to file claims,” Beggs said.

Wall, Bristow’s attorney, said the city has been successful in discouraging lawsuits against the police.

“They basically fight tooth and nail,” Wall said. The city never admits wrongdoing due to its self-insured status, and there’s no pressure on individual police officers to change their conduct even when there’s a monetary settlement, Wall said.

“It’s part of what’s generated the need for a police chief from out of town who seems willing to make some changes,” Wall added.

Spokane’s Citizens Review Commission, established in 1995, has rarely met and has no power in city ordinances to look at police practices. As a result, there has been little examination of the underlying practices that sparked the claims.

For instance, the issue of inadequate police training in fraud investigations was raised in Bristow’s federal lawsuit filed last year against the city, former Police Chief Roger Bragdon and Spokane p`olice Detective Craig Brenden, a member of the fraud unit.

In that case, Spokane attorney Wall claimed the six forgery counts wrongly filed against Bristow were a consequence of having no handwriting experts on the force under ex-chief Bragdon.

In a deposition, Bragdon said he knew of no incidents during his tenure as chief where a Spokane police officer mistakenly recommended charging an innocent person.

Bragdon also said he’d never felt it necessary to review fraud cases to determine how often the guilty party had been incorrectly identified, and said he didn’t review warrantless arrests because a prosecutor’s discretion to charge a suspect is enough checks and balance in the system.

That’s not good enough, said Wall. After a major claim like Bristow’s is settled, police procedures should be reviewed to prevent future mistakes, he said.

“You’d think they’d say, ‘Don’t do this anymore.’ But that didn’t happen,” said Wall.

Bragdon did not respond to a request for comment.

In his October 2006 order denying the city’s motion to dismiss Bristow’s case, U.S. District Judge Edward Shea said that if the case were to go to trial, a reasonable jury could find that the city had failed to train fraud unit investigators in accepted methods of handwriting analysis.

That would constitute “deliberate indifference,” said Shea – the legal standard for liability.

City Attorney Craven agreed that underlying problems with police practices should be examined after a lawsuit is settled.

“A very prudent thing to do post-litigation is to sit down and say, ‘What have we learned?’ It’s just wise,” he added.

Litigation bias cited

In Spokane’s most high-profile civil rights case, two Gypsy families sought $59 million in damages for a sweeping police raid on their homes that the courts ruled unconstitutional. The city and county unsuccessfully countersued in federal court, charging the families with racketeering and conspiracy.

Police entered the homes of Grover and Jimmy Marks in 1986 looking for stolen property and jewelry before a search warrant was signed. They searched family members – including a baby – who weren’t the subjects of the warrant, the Gypsies claimed in court documents.

Treppiedi, on behalf of the city, filed civil counterclaims against the Gypsies under the federal Racketeering Influence and Corrupt Organization Act (RICO) – a federal statute originally aimed at organized crime – accusing them of running a criminal enterprise.

The racketeering counterclaims were frivolous and vindictive, said Terry Thomson, a Seattle lawyer who helped defend 19 of the Gypsies against the charges.

“We relatively quickly brought a motion for summary judgment to dismiss the RICO counterclaims. Our motion to dismiss was granted by a highly respected federal judge at the time,” Thomson said. (U.S. District Judge Robert McNichols died during the litigation.)

Treppiedi said the RICO counterclaim was “well-based in fact” because many of the Gypsies were fencing stolen property.

The city paid $1.43 million to the Marks family in 1997 to settle the case.

Other members of Spokane’s minority community think they’ve been unfairly targeted by aggressive litigation. Among the settlements paid by the city:

“$4,000 to Stanley Tensley, who claimed he was unjustly beaten by police in February 1997 near Pittsburg and Fourth Avenue and falsely imprisoned on charges of obstructing an officer and resisting arrest. Police reports said Tensley refused to take his hands out of his pockets when they encountered him that night while responding to a neighborhood traffic incident. Witnesses said the officers beat Tensley with their fists and a flashlight.

Then-Police Chief Terry Mangan and the department’s Office of Professional Standards, an internal investigative body separate from the Citizen’s Review Commission, ruled the officers were justified in the force they used to arrest him. Tensley filed a $50,000 claim against the city in October 1998 and a civil rights lawsuit in Spokane County Superior Court four months later.

In a press release at the time of Tensley’s arrest, Treppiedi called Tensley a “known gang member.” He also later countersued Tensley for malicious prosecution and defamation. The Spokane chapter of the NAACP cited the case as an example of police bias against black males.

Tensley’s lawyer, Dennis Cronin, requested police documents and an Internal Affairs report on the incident. It took the city 17 months to produce the records – far beyond the statutory limits in the state’s Public Records Act. The records were produced after Cronin threatened in July 1998 to file a public records lawsuit.

The city’s charges against Tensley of resisting arrest and obstruction were dismissed and his claim was settled in July 2000.

“$854 to Jerome Sanders to settle a lawsuit for false arrest and defamation in which Sanders claimed he was wrongly identified as a gang member and jailed for 10 days. Prosecutors quickly dropped the charge after they learned the 34-year-old Sanders was working at Telect Inc., a telephone equipment manufacturer in Liberty Lake, at the time of a robbery.

Treppiedi told the media Sanders had “gang associations” – a charge that Sanders, the local NAACP chapter and the Spokane Police Department’s Special Investigations Unit all denied at the time.

Sanders filed suit in January 1998, blaming his arrest on “racist stereotyping” of young blacks in Spokane. He said his lawsuit was an effort to halt a pattern by Spokane police of identifying blacks as gang members but not backing up the claims in court.

A former Spokane police officer also got a legal settlement.

“The city paid $8,032 to Ken Lesperance, who was countersued by the city after he resigned from the department in 1997 and sued the city in federal court for $3.5 million. A defamation counterclaim pursued by Treppiedi was dismissed by U.S. District Judge Fred Van Sickle, who said the city had no proof.

Lesperance claimed his supervisors, including former Chief Mangan, retaliated after he filed a complaint against Cheryl Steele, the former director of Community Oriented Policing Services.

After a two-week trial in 1999, a federal jury concluded the city had retaliated against Lesperance, but provided no damages. U.S. District Court Judge Fred Van Sickle awarded Lesperance $605 in damages and ruled that his attorney, Amy Clemmons, should receive nearly $84,000 in lawyer fees. But the fees were overturned in 2001 after the city appealed to the 9th U.S. Circuit Court of Appeals.

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