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Spokane, Washington  Est. May 19, 1883

First Amendment protects former Spokane police union president, lawyer argues

FILE – Spokane Police Sgt. John Gately was arraigned in Suuperior Court on  Dec. 21, 2015. (Kathy Plonka / The Spokesman-Review)

An attorney for former Spokane Police Guild President John Gately says Gately didn’t commit any crimes by talking to a fellow officer who was under investigation for rape.

David Allen, a Seattle-based attorney, filed a motion this week to dismiss two felony charges against Gately for rendering criminal assistance to Gordon Ennis, a police sergeant accused of raping a fellow officer at a party last fall. Gately also is facing a misdemeanor charge of obstructing a law enforcement officer.

The motion argues that the prosecution’s evidence, even if assumed to be true, does not establish that Gately violated the law by calling Ennis twice before Spokane County Sheriff’s Office detectives served a warrant to collect a DNA sample.

In the first call, Gately told Ennis not to make any statements about the alleged crime except in an official capacity. In the second, Gately allegedly told Ennis detectives were coming to execute a search warrant. When detectives arrived, they found Ennis’ nails were freshly trimmed, which prevented them from collecting trace DNA evidence.

Allen’s motion argues Gately was engaging in protected First Amendment speech by calling Ennis to tell him about the investigation.

Charging documents accuse Gately of warning Ennis about impending discovery or apprehension by law enforcement, and also say Gately concealed, altered or destroyed physical DNA evidence by warning Ennis that sheriff’s officials planned to serve him with a warrant.

Allen’s motion says that law covers people who prevent police from learning where a suspect is located or telling a suspect about impending arrest so they can leave town, neither of which occurred in this case. He also says Gately did not destroy any evidence himself and cannot be charged for actions Ennis may have undertaken.

“There are no specific criminal statutes making it a crime for a person to tell another that they are the subject of a criminal investigation. Likewise, there are no specific criminal statutes making it a crime for a person to tell another that there will be a search warrant served on him,” the motion says.

The motion also notes that Ennis has not been charged with evidence tampering for clipping his own fingernails.

Both Ennis and Gately have been suspended without pay pending the outcome of their criminal cases. Ennis’ trial is set for October, and Gately’s is scheduled for late April.

A hearing on the motion will be held April 1.