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Spokane, Washington  Est. May 19, 1883

Family’s civil lawsuit goes to court four years after man dies following deputy response outside gym

File photo of a Spokane County Sheriff’s Office vehicle. (Christopher Anderson / The Spokesman-Review)

Witnesses described 34-year-old Will Berger’s actions inside a South Hill gym on June 6, 2013, as bizarre and aggressive. But Berger never got the chance to explain them.

Responding to a disturbance call, Spokane County sheriff’s Deputies Shawn Audie and Steve Paynter shocked Berger several times with a Taser. After Berger continued to struggle, Audie applied a controversial neck restraint. Berger lost consciousness and later died.

Even though criminal and internal investigations cleared Audie and Paynter, an attorney representing Berger’s family, Karen Unger, will ask a jury in federal court this week to hold the two officers civilly responsible for what she argues was excessive force resulting in Berger’s death.

Unger, reached by phone last week, declined to comment and said the suit speaks for itself.

“At no time did either deputy attempt to engage the decedent in any kind of conversation to determine his level of stress or incompetence,” the suit states. “There was no reason whatsoever to begin Tasing an individual who was of no threat to anyone.”

“Without communicating in any way with Mr. Berger, the officers launched a full-on assault on an unarmed, mentally unstable individual, and caused his death.”

The jury selection is set to begin Monday before U.S. District Judge Rosanna Malouf Peterson.

Sheriff Ozzie Knezovich was originally named as a party to the suit and provided a deposition. But he said last week that he had not been subpoenaed to testify.

“We did our in-custody death review, and all things were found to be in compliance,” said Knezovich, who declined to comment further.

The attorney representing Spokane County, Heather Yakely, wrote that both Audie and Paynter were authorized to use deadly force to protect themselves or others from what they believed was “an imminent threat of death or serious bodily injury.”

“The Deputies here unequivocally believed that their lives were in danger when they put out a ‘code 99’ over the air,” Yakely wrote. “Yet, even then, they continued to attempt to gain control of (Berger) rather than resorting to deadly force.”

According to court records, Berger entered Oz Fitness near the intersection of 55th Avenue and Regal Street. Witnesses described his bizarre behavior that prompted staff to ask him to leave.

Dressed only in shorts and running shoes, Berger walked outside and appeared to be swinging at cars passing nearby. Someone called 911 and Paynter arrived on the scene.

“Rather than try to engage the decedent Mr. Berger to determine his level of distress, defendant Deputy Paynter immediately Tased Mr. Berger once, and when he did not immediately comply with defendant Deputy Paynter’s commands, continued to Tase him,” Unger wrote.

Audie arrived next and he, too, shocked Berger with a Taser. After Berger continued to struggle, Audie placed Berger in a neck hold that caused Berger to lose consciousness.

As Audie held Berger in the neck hold, a paramedic and an emergency medical technician approached.

“When they approached … they were met with profanity and threats of arrest from defendant Deputy Audie, should they attempt to intervene in any way,” Unger wrote. “As a result, they both backed away, fearing for their own safety.”

After the deputies handcuffed Berger, they realized he wasn’t breathing. Berger was never revived, but medical officials kept him on life support long enough for his organs to be retrieved for donation, Unger wrote.

Berger’s father, William “Bill” Berger, dropped his son off at Oz Fitness that day, Unger wrote. The elder Berger arrived back at that location “in time to see his son killed by” Audie and Paynter, which has caused Berger ongoing mental health problems.