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Strong Arm of the Law 

What happens when someone complains a cop used excessive force? Usually, not much.

click to enlarge ILLUSTRATION: CHRIS BOVEY
  • Illustration: Chris Bovey

Kaitlyn Jellison barely reaches most people’s chins. At 19, she’s a slight 5-foot-2, wears glasses and is about as dainty as they come. So it’s unclear how she could pose much of a threat to an officer of the law.

Still, she was recently wrested to the ground by a cop and charged with “obstructing.”

Kaitlyn’s father had called cops to referee an argument with his girlfriend, but when officers arrived five hours later, his girlfriend was gone and officers arrested him instead.

Kaitlyn got upset, and as officers handcuffed her father, she yelled, “This is bullshit.” She followed them to the squad car, asking to say goodbye to her dad.

That’s when, about five feet from her father, she says an officer slung her to the pavement, rammed a knee in her side and crushed all the air out of her. Kaitlyn says she panicked under the weight of the officer and begged him to get off of her. Gasping for air, she cried that she couldn’t breathe.

The officer’s report of the incident tells a different story. He says Kaitlyn’s actions were “assaultive in nature” when she “attempted to put herself in-between myself and [her father].”

A month later, in late June, the teenager sat in the office of the Spokane Police Department’s civilian ombudsman. She gave her account of the arrest and produced photos of resulting bruises. The fledgling ombudsman, Tim Burns, called her allegations “pretty severe.”

“My presumption is ... this will be an investigation,” Burns told her.

Kaitlyn isn’t exactly confident that police investigators will find one of their own in the wrong, and if history is any indication, she’s probably right. Between 2005 and 2009, Spokane police investigated 55 complaints of excessive force, and in only one case did the Internal Affairs detectives sustain the allegations.

There’s no way for the public to tell if those other 54 investigations were thorough or if the department has a problem policing itself. The reason: The Spokane Police Department refuses to release records relating to those unsustained allegations of excessive force.

City attorneys cite two state court rulings as justification for withholding the documents, even while other law enforcement agencies across the state routinely release them.

The city’s stance requires, in effect, that the public simply trust the department to properly discipline violent officers.

“I don’t think you can trust anyone to police themselves,” says Breean Beggs, a local attorney who has worked on many cases involving police conduct. “In general, the system that we have has not worked. It goes back to the 1970s — allegation after allegation of death after injury.”

And for just as long, what the public knows about the use of excessive force by local law enforcement largely comes from anecdotes from people who come forward to the media with complaints.

There’s Jim Donais, whom a Spokane sheriff’s deputy mistook for a video store robber and tasered in May 2004. After the store manager told deputies they had the wrong guy, he was let go. The same deputy who tasered Donais, Michael McNees, later cost the county $120,000 when commissioners settled a lawsuit brought by another man McNees tasered during a traffic stop.

And there’s Benites Saimon Sichiro, who was beaten and tasered while an inmate at the Spokane County Jail in 2006. He died of internal bleeding from a lacerated liver caused by blunt-force trauma to the torso, as revealed by an autopsy. One of the detention deputies involved in the beating, John Elam, was hired later that year by the Spokane Police Department.

And there’s Jason Poss, who was wielding a knife and deemed enough of a threat to be gunned down when he approached a nearby police car last summer. A witness to the shooting later told the Spokesman-Review, “They pretty much annihilated him.”

And, of course, there’s Otto Zehm, who died two days after a March 18, 2006, encounter with Spokane Police Officer Karl Thompson. Thompson still faces charges of excessive force and lying to investigators about the fatal confrontation. His long-anticipated trial, expected to begin this spring, was recently delayed until March 2011.

Zehm’s death sparked the creation of the region’s first ombudsman position. Burns, the first to hold the position, assumed office in August and to date neither Burns nor his office have significantly altered the department’s practice of withholding investigative reports from the public — even to the people who filed the complaints.

On Monday the City Council voted to give Burns authority to question witnesses and complainants separate from Internal Affairs. (He still can’t question officers directly.) His duties now also require him to produce a summary of every complaint and he must make those available to the public via his website. The Police Guild has indicated it would challenge any changes to Burns’ authority.

Regardless, the ombudsman’s new powers will have no effect on the department’s long-standing custom of withholding certain IA records — a practice that is at odds with agencies across the state.

“It’s not working,” says Beggs. “That’s the definition of insanity: not trying something new. We need to try something new until we get it right. The upper level of management [in the Police Department and the city] are so used to defending the status quo, they’re fearful of trying something new. … We need to change something.”

For Kaitlyn, justice looks pretty simple. She wants the officers fired and she wants to be compensated for her job at a retirement community that she lost, she says, because of her arrest.

Even though Burns, the ombudsman, calls her accusations “pretty severe,” in all likelihood her allegations will generate an investigation, which will end with unsustained findings, which will seal the IA file on Kaitlyn’s case.

Pat Dalton, an assistant city attorney who’s worked in the office for 25 years, says the city is on the right side of the law, which was written to protect officer privacy.

“My understanding of the public records law, for police officers [and] any records created or compiled during investigations [is they] can be exempted from being released in every circumstance unless the conclusion is that it is a founded complaint and discipline is imposed.”

So of those 54 complaints that IA detectives couldn’t substantiate, the privacy of the accused officer is paramount. But who’s to say the investigation wasn’t a farce?

“The question is about the completeness, comprehensiveness and quality of the internal investigations that come to these unsubstantiated findings,” says Greg Overstreet, a Puget Sound-area attorney who specializes in public records law. Overstreet was the state Attorney General’s open government ombudsman from 2005-07.

Overstreet says that one of the cases cited by city attorneys, Bellevue John Does v. Bellevue School District, does protect the privacy of those involved in the complaint — while allowing officials to release certain, pertinent details.

Names and other identifying information in the investigation can be redacted, or blacked out, the court found in Bellevue. But sealing the entire investigation — which the Spokane Police Department does — brings up the possibility of “kangaroo courts,” or expedient sham trials, says Overstreet.

“If they’re withholding entire records … that seems problematic to me,” he says.

The state’s current open government ombudsman, Tim Ford, agrees. In a recent email exchange with The Inlander, Ford writes, “If the Spokane PD is following the Bellevue case for guidance, then they should be disclosing the complaints and redacting the names (and any other identifiable information) where there are no findings of misconduct. This will protect the privacy of the employee.”

Still, the city’s sticking with its unique interpretation of the law.

“We didn’t form the policy,” says Assistant City Attorney Rocky Treppiedi, who has made headlines for vigorously countersuing people who sued the Police Department. “We just comply with the law.”

The chief of police agrees.

“It’s a legal decision, versus policy. I obviously follow our, the city’s, legal counsel on such matters,” Spokane Police Chief Anne Kirkpatrick says.

Kirkpatrick was hired in September 2006 — just months after Zehm’s death — promising to bring change and transparency to the city’s troubled police force. She rejects the claim that completely veiling internal investigations is an affront to such promises. The superlative example, she says, of her commitment to a transparent department is the creation of the ombudsman position.

“I came in and supported the police civilian overseer, the ombudsman approach,” Kirkpatrick says. “I was the one who helped lead the change for that, to give you, the public, an outside, independent person who has total access to all of our internal files. And Tim Burns sits in on all interviews, he has access to everything and he is to report back, publicly, to the community via City Hall.”

When told that the Spokane County Sheriff’s Office has a more transparent policy than hers, that the state Attorney General’s Office disagrees with the city’s legal position, and that her department’s policies are not aligned with many other agencies in the state, Kirkpatrick says she’s surprised, but unmoved.

If she ever disagreed with the city’s interpretation of the law, Kirkpatrick, also an attorney, says it wouldn’t change anything.

“As the chief of police, I don’t want to be a rogue in making decisions of policy that could result in litigation when I have legal counsel saying that’s their job and position,” she says. “They’re the ones who are really going to be the driver in making such decisions, not a personal opinion of mine. It should be a well-thought-out legal position, based on risk. Not, ‘How does Anne Kirkpatrick feel?’”

It wasn’t simply a feeling Spokane Police Officers Erin Blessing and Shaidon Storch had on Sept. 5, 2008. That night, Officer Rob Boothe — an expert in martial arts and one of the department’s use-of-force instructors — chased 22-year-old John Luna on foot with several other officers. Boothe tackled Luna and placed him under arrest.

According to Blessing and Storch, Boothe kicked Luna in the face while he was in handcuffs and sitting on the ground. Boothe denies this.

On the stand, Boothe gave a reason for why accounts from his fellow officers — both of whom he trained — differed so greatly from his.

“I can be a hard trainer,” Boothe said. “Some people have trouble being told what to do.”

Storch said in court that his testimony came at a personal cost: His relationships in the department soured after reporting what he had seen Boothe do that night.

A jury cleared Boothe of the charges. Following the verdict, an internal investigation also cleared him of all excessive force violations. The internal report, however, did stick him with one offense: demeanor, because he used strong language with Luna.

When asked if Blessing and Storch were lying when they said Boothe kicked Luna in the face, Kirkpatrick says, “Not in my opinion.”

When asked if Boothe lied, she says, “We have an acquittal. The acquittal speaks for itself.”
Considering the contradictory accounts, somebody had to be lying in that case, right? “I hear what you’re saying,” the chief says. “I understand.”

Since not one of the officers was disciplined, the department won’t release any records, meaning the public can’t review the investigation of Boothe and understand why IA detectives couldn’t sustain the allegations.

We can, however, answer most of questions about the investigation surrounding Nathan Bohanek, the last Spokane police officer to get fired for using excessive force, in 2005. The report of his investigation is open, because the department releases records of complaints that investigators are able to sustain.

According to police records, it was a late spring evening in 2005 when Officers Bohanek and Derek Bishop encountered a man riding his bicycle near Gonzaga University. The man, who was living in a transient camp near the river, ran from them soon after he was stopped. They chased him.

Getting backup from a K-9 unit, officers soon found the homeless man in the back of a truck. Frightened by the dog, the man defecated in his pants and was arrested.

On the walk back to the patrol car, the man “was walking peacefully [and] being cooperative. You know, other than you know, him jibbing and yelling, you know just every once in a while saying something sarcastic towards us,” Bishop told IA.

That’s when Bohanek ran over. He grabbed the man by the head and started yelling at him, chastising him for running from the cops. Bohanek then punched him in the face, tearing the man’s necklace off in the process.

“It was real quick,” Bishop said, “grab him, shake him, f--- you, f--- you, punch.” (Download a transcript of Bishop's interview with Internal Affairs investigators here.)

Later that night, on patrol together, Bohanek twice mentioned to Bishop he would never “testify against another officer” and “that guy’s not gonna say anything.”

Still, Bishop was uncomfortable, mentioned the episode to his superiors and an investigation was launched. For his part, Bohanek confessed to the allegations. When asked why he hit the guy, he answered, “I don’t have any good reason; I was just pissed off.” The investigator asked him how hard he hit the homeless man, on a scale of 10 — one being the lightest and 10 being a knockout punch.

“Somewhere around a three,” Bohanek answered.

Investigators determined that he had violated Policy 800L, the department’s excessive force rule. The police chief at the time, Roger Bragdon, said he had acted “without provocation.”

Bohanek was fired — but his story doesn’t end there.

Ruled unfit to wear the Police Department’s uniform, Bohanek soon found a job elsewhere: as a deputy with the Spokane County Sheriff’s Office.

According to Sheriff Ozzie Knezovich, Bohanek was hired by the Medical Lake Police Department and then absorbed into the Sheriff’s Office when it took control of the municipality’s policing in December 2009.*

“We brought in all their people,” Knezovich says. “Everything I’ve heard, he’s been very rock-solid.”

Knezovich says they reviewed Bohanek’s recent performance and found it acceptable.

“Whenever we have those types of situations, you look into it and weigh it all out,” he says. “Everything we’ve heard so far, he’s been a very rock-solid employee.”

Bohanek isn’t the only deputy whose conduct on the street has been called into question.

This September, the case of Daniel Brian Strange v. Spokane County will begin.

At issue is the January 2006 night that Sheriff’s Deputy Jeffrey Welton pulled over a 1983 Mazda RX-7. In the car’s passenger seat sat its inebriated owner, Daniel Brian Strange, an extremely tall man who was very proud of his car.

Welton stopped Strange and his girlfriend, who was driving, after seeing the car pull away from Good Tymes Tavern in the Valley. Within six minutes of pulling the couple over, Welton had slammed the door of the RX-7 shut with enough force to crack its windshield. Strange, the prideful owner, got out from the vehicle to admonish the deputy, and Welton sent 50,000 volts of electricity coursing through Strange for a full five seconds by way of a taser.

Facedown on an on-ramp to Interstate 90, Strange was arrested for obstructing and resisting arrest.

“This particular deputy has a history of hotheadedness,” says Strange’s lawyer, Mary Schultz. “Part of the suit is against the county. … It’s dangerous to have him out there interacting with citizens.”

The Inlander’s request for “all complaints, record of internal investigations and any disciplinary actions” against Welton revealed a stack of 832 pages some four inches tall.

The complaints against him in the file number close to 30 — though this count is imperfect, due to the redaction of all identifying information. Against Welton, citizens complained of excessive force, harassment, demeanor, racial profiling, failure to provide medical assistance, unprofessional conduct and improper entry.

Here are just some of the complaints filed against Welton. (Again these are only allegations and internal reviews did not sustain any of them.)

  • He told someone, whose wife had filed a complaint against Welton a year earlier, that he “knew who you are” and he was going to “beat his ass.”

  • When Welton came across some children throwing apples at passing cars, he told them, “Your mom should whip your ass more often; maybe it might help.” He called their behavior “f---ing bullshit.”

  • Welton told another man, who allegedly threw a rock through his ex-wife’s window, that he should “go back to England.”

  • While off-duty and driving his personal vehicle, Welton accidentally cut someone off. Responding to the near miss, Welton flipped the guy off twice and mouthed the word “pussy.” At a stoplight, the other driver walked toward Welton’s car. Welton threw his door open and “drilled me with his door” and told the man, “Dumbass, get in your car.” Welton flashed his sheriff’s baseball cap and told the man he would be arrested if he didn’t pay for the damage done to his car door.

  • Welton blew up at other deputies, yelling, “Why couldn’t you follow simple directions? What was so hard about that?” And, “Where the f--- is your head? … Are you f---ing stupid?”

  • After pulling over a vehicle, he detained a man who was watching from down the street. The man had his hands in his pockets, so Welton pulled his firearm and told him he was going to “shoot him with 50 thousand volts” and started counting down to zero. After cuffing the man and calling him a “punk idiot,” Welton took the cuffs off and released him with no charge.

  • After pulling over a car for failing to use a turn signal, Welton and his partner pulled a black passenger out of the car and handcuffed him. They repeatedly called him “n-----” and asked him if he was getting “smart.” They told the man, “Hey n-----, you’re going to jail now,” and “Woohoo … we takin’ your n----- ass to jail now.” The man was charged with resisting arrest and obstructing.

Michael Nault, a former King County police captain who worked the Green River Killer investigation, was commissioned by Strange’s attorney to write an expert report for the case. In it, he writes that between January 2001 and April 2008, “there were 42 excessive force complaints against the entire patrol division” of the Sheriff’s Office. Of those, 13 were against Welton alone.

“In the last two years, I don’t think he’s had that many complaints at all,” Knezovich says, defending Welton. “Part of that is his supervisors have been working very diligently and I think that he’s become a very strong officer. … But let’s face it. Sometimes it comes down to how you interact. You might think you’re fine, and other people think you’re rough. It comes down to a certain amount of perception.”

Knezovich adds that the nature of law enforcement creates tense confrontations.

“We deal with mostly angry people,” he says. “You do your best to treat people with respect. There comes a point where you can only treat people with the amount of respect they allow you to. There comes also a point where you have to make sure you don’t lose control of that situation. When you lose control of a situation, it becomes much worse.”

Regardless, when one deputy racks up almost a third of the excessive force complaints from an entire division, a red flag is raised, says Schultz. “He has a flag sticking out of his ears.”

The lawsuit against Welton alleges the county “maintains a custom and policy deliberately indifferent to the rights and safety of citizens by failing to identify, monitor, discipline, reprimand and weed out Deputy Welton.”

In his expert report, Nault concludes Welton did use excessive force against Strange. “Deputy Welton’s historically recorded propensity to hostile demeanor, his use of force record, and his demonstrated dubious credibility, all lent significantly to this conclusion,” Nault writes.

According to The Inlander’s review, Welton has never been disciplined for any of the citizen complaints. (He has been disciplined twice for “improper handling of evidence,” and for failure to “operate a departmental vehicle in a safe and skillful manner” after he wrecked his patrol car.)

According to the sheriff, Welton has been investigated a total of 12 times, five of which were for excessive force. In three of these investigations, he was exonerated. Twice the excessive force complaints were not sustained. All 12 investigations took place between 2001 and 2006, and Welton has not been investigated since.

Beyond Welton, the Strange suit continues, the county “has no process or procedure for monitoring force complaints against particular officers who generate numbers of complaints.”

Asked to put Welton’s conduct as a deputy in context — specifically, how his professional record compares to his peers — the Sheriff’s Office of Professional Standards fell back on RCW 42.56, the public records law, claiming the agency’s database was outdated and unable to handle such a request.

“We do not keep a list or document with this information and are not required by law to create documents to fulfill this request,” reads their response.

Knezovich says his office has a process in place to watchdog bad officers: the chain of command. People on the force are supervised by their superiors. If supervisors identify a bad apple, the sheriff says, they take care of that person. Additionally, Knezovich says, the internal investigatory process will weed out bad cops.

“You rely on sergeants and lieutenants and everybody to be taking a look at instances,” he says. “Unless there’s something really egregious that actually hits a certain level — investigation — I wouldn’t run into that.”

But, Knezovich concedes, their statistical database is highly flawed.

“We are developing dashboard systems to better track everything within the Sheriff’s Office,” Knezovich says. “I think it’s important to have the ability to pull things up. Quite frankly, technology has not been invested in over the years to the level we need to.”

When asked if it worried him that outdated technology was preventing his office from compiling statistics of his deputies’ activities — and therefore missing the opportunity to gain a better understanding of what’s happening on the streets — the sheriff says he has confidence in the system, even if it is in need of an upgrade.

“That’s why we’re buying a new system. We want to be a little bit more thorough and a little more able to push a button and find out what’s going on,” he says. “Am I concerned? No, because I have great faith in the sergeants. If they have a problem, they’ll be identifying that.”

In 2009, the sheriff began receiving more comprehensive semi-annual reports. In them, the number of times his deputies used force is compiled, as is the number of complaints against the office.

Knezovich points to the last quarter of 2009 as an example of his process’ effectiveness. In that time, deputies reported using force 56 times. Also in that quarter, the sheriff adds, there were no complaints lodged.

The Sheriff’s Office’s willingness to release records, however imperfect the database, is consistent with many other agencies in the state (aside from the Spokane Police Department, of course).

According to Craig Adams, a Pierce County deputy prosecuting attorney who provides legal counsel to that county’s sheriff, Pierce County releases the entire investigatory file, including the guilty deputy’s name, when a complaint is sustained.

If the complaint is unsustained or the deputy is exonerated, the file is still released, but the deputy’s name may be omitted, depending.

“We don’t have a blanket rule,” Adams says. “We might release names, probably not. But we will release the investigation.”

Adams says it’s the same for all the Puget Sound counties: King, Bellevue, Everett, Snohomish, Whatcom.

“The public records law says you give out what you can give out,” he says. “There are very, very few categorical exceptions.”

“It’s not that the city’s forced to keep [investigative reports sealed],” says the local attorney Beggs. “It’s up to the city. They can easily open it up. … If the city wants to be a good, transparent city, they could open them up.”

Besides, Beggs says, according to the department’s own internal investigations, the city’s officers are stellar. Why not open the records?

“They almost never make of a finding of misconduct, so what’s the problem?” Beggs asks. “What are they so afraid of?”

Which, again, brings up more questions: Why do the vast majority of citizen complaints end in silence, without sustained findings and discipline? How many more stories of police misconduct are out there, unknown to everyone but the handful of cops who investigate the claims, find nothing and seal the files?

Is this how we want our Police Department to work?

Meanwhile, Kaitlyn Jellison doesn’t trust police officers anymore, let alone police investigations into their own members. She knows the father of the officer who took her down was a lieutenant on the force. She worries that the familial connection could influence the investigative process even more.

And if she never sees the results of the investigation, she’ll trust it even less. Regardless, Jellison will always have one record of that evening.

As she followed her father to the squad car, wanting to say goodbye, she called her sister to tell her what was happening. There, recorded on her sister’s voicemail, is Jellison gasping for air, with an officer on top of her.

“Next message sent Friday, May 21, at 6:04 pm, Pacific time: ‘I can’t breathe! I can’t breathe! I can’t breathe! I can’t breathe! Get off of me! I can’t breathe! I can’t breathe! I can’t breathe! I can’t breathe! Get off of me! I’m not resisting, I can’t breathe! Are you f---ing kidding me! I can’t breathe! I can’t breathe! I can’t breathe! Are you going to let me f---ing die?”

* A previous version of this story misstated the date when the Sheriff's office took over policing for the city of Medical Lake.


Cops Behaving Badly

It’s not just the victims of police misconduct who suffer. The taxpayers do, too.

$1.43 million | After years of litigation, the city settled with the Spokane Gypsy family of Grover and Jimmy Marks in 1997 for an illegal search of their house by the Spokane Police Department, which occurred 11 years earlier.

$1.1 million | Norma Bratton was shot by a neighbor after a 911 dispatcher failed to relay info to police. The Spokane Police Department paid her $191,000. Six years later, following a decision by the state Supreme Court, the county paid Bratton $925,000 in a mediated settlement.

$425,000 | Benites Saimon Sichiro died in the Spokane County Jail in 2006 after struggling with deputies. Spokane County paid his two children $425,000 in 2009.

$137,00 | Spirit Creager was tasered by Deputy Chad Ruff in 2005. In 2009, Spokane County paid him $112,000 and paid his son (who witnessed the incident) $25,000.

$120,000 | Troy Smith was tasered by Deputy Michael McNees in 2005. Spokane County paid out $120,000 in 2009.

$50,000 | Trent Yohe died after a struggle with sheriff’s deputies and a 12-day coma in 2007. In March of this year, Spokane County agreed to pay Yohe’s preteen daughter $50,000.

— Compiled by Nicholas Deshais and Heidi Groover

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