Their Right To Kill

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Otto Zehm, a mentally handicapped, 36-year-old unemployed janitor, was beaten to death in a Spokane convenience store in March 2006.

“All I wanted was a Snickers bar,” pleaded the battered and bloody man before he was gagged by his assailant.

On November 4, Karl Thompson, the man convicted of killing Zehm, was taken to jail. Several dozen members of Thompson's gang were gathered outside the courtroom — most of them proudly wearing the colors — to "show their honor" by offering the murderer a public salute. Thompson — whose hands weren't cuffed, in violation of long-established rules — smiled and returned the gesture. Zehm's still-grieving mother and several other relatives stood just a few feet away.

The gang in question is the Spokane Police Department, which even now refuses to acknowledge that Thompson — who was a nominee to become Chief at the time he murdered Zehm — ever did anything wrong when he clubbed, tased, and suffocated a terrified, innocent man who did nothing to provoke the attack, and who put up no violent resistance to the assault.

Zehm had done custodial work at Fairchild Air Force Base and was well-known, and equally well-liked, by many people in his neighborhood, some of whom were aware that he had been diagnosed with schizophrenia. He was in the daily habit of visiting a convenience store called Zip Trip to purchase junk food — usually Pepsi and a candy bar.

On March 18, 2006, Zehm retrieved some money at an ATM near Zip Trip. Something in his behavior struck two girls as odd, so they called the police. Although there was no reason to believe that Zehm had committed a crime, Thompson entered the store as if he were pursuing a dangerous fugitive. Security video documents that Thompson approached Zehm from behind, while retrieving his custom-made, over-sized ironwood nightstick.

Thompson introduced himself to Zehm by shouting at him to drop the two-liter bottle of Pepsi. According to the officer, the startled and puzzled man responded by quite reasonably asking, "Why?" Thompson interpreted that Zehm's fleeting non-compliance as an immediate and intolerable threat to officer safety. So he rushed at the terrified man and began to beat him with his nightstick — clubbing him first in the legs, then on the shoulders, neck, and head. Blows to the head are defined as lethal strikes under the Spokane PD's use-of-force policy, justifiable only when a suspect threatens the life of a police officer or bystanders.

As the security video demonstrates, Zehm never put up a fight. He retreated from Thompson, and then made a pitiable attempt to use his bottle of soda to deflect blows aimed at his face. Thompson escalated his assault by tasering him at least three times. Thompson was eventually joined by six other other police officers. Eventually, Thompson was actually sitting on Zehm, who was face-down on the floor.

The victim was hog-tied in a "four-point restraint," meaning that his hands were shackled to his ankles. Department policy guidelines emphasize that suspects restrained in this fashion are never to be placed face-down, since this posture can result in "positional asphyxia." Yet Zehm was left in that position for about seventeen minutes, and at one point an officer actually pulled his feet backwards — which increased the risk of suffocation by placing pressure on the victim's diaphragm.

After emergency personnel arrived, they were instructed to dig the Taser barbs out of Zehm's flesh. They were also asked to provide a "non-rebreathing" oxygen mask; this was placed over the victim's face, supposedly to prevent him from assaulting the officers by spitting on them. This mask was not designed or intended to be used without being attached to an oxygen supply. Once the mask was placed on Zehm's face, the traumatized and panicking man — who was already at severe risk of hypoxia — was forced to breathe through an easily obstructed opening roughly the size of a quarter.

Did Thompson and his cohorts deliberately set out to suffocate Zehm? Every step they took led inexorably to that outcome, and incompetence can only explain so much. That was the outcome, whether it was the result of deliberate malice or depraved indifference. Zehm stopped breathing about seventeen minutes after Thompson's initial assault, and died in a nearby hospital about two days later. But the police department's assault on Zehm continued while he struggled for life in the hospital, and didn't end with his death.

On the day of the beating, Police Chief Jim Nicks told the media that Zehm had "lunged" at Thompson, thereby threatening his life. Other officers claimed that Zhem had a prior arrest for assaulting an officer. Both claims were conscious, deliberate lies.

About two weeks after Zehm's death, Detective Terry Ferguson, who "investigated" the incident for the Spokane PD, filed a report claiming that none of the seven officers who assaulted Zehm committed a crime. Ferguson had little time to investigate what was done to Zehm, because she was too busy investigating the victim. The detective persuaded a judge to issue warrants to pry into every aspect of Zehm's medical, employment, and personal history, on the pretext that the deceased was suspected of "assaulting a police officer." This was actually an unsuccessful effort to exhume something — anything — that could be used to denigrate the victim.

After the pressure of a threatened lawsuit, Spokane County Prosecutor Steve Tucker released the video recordings of the assault, which he and the police had diligently suppressed. The recordings contradicted every critical element of Thompson's version of the event, beginning with the claim that Zehm had "lunged" at the officer.

With no criminal charges filed against Thompson, Zehm's family announced its intention to sue the City of Spokane, and the Justice Department began a civil rights inquiry. In March 2009 — three years after the killing — Chief Anne Kirkpatrick (who had replaced Chief Nicks) issued a public statement offering her "unequivocal support" to Thompson. "Based on all the information and evidence I have reviewed, I have determined that Officer Karl Thompson acted consistent with the law," Kirkpatrick insisted.

A few months later, Chief Kirkpatrick assigned Thompson — who was, recall, the subject of a federal civil rights investigation — to help train other Spokane police officers how to deal with "high-risk liability incidents," which have been plentiful.

Spokane's municipal government, which paid out $2.5 million to resolve police-related lawsuits between 1996 and 2007, has a policy of filing counter-suits accusing citizens of "conspiracy to misuse the judicial process." This is made possible by a state statute intended to protect police against supposedly frivolous lawsuits. Given all of this it's not surprising that Chief Kirkpatrick's unqualified endorsement of Thompson's actions was coupled with an unyielding official line blaming the victim for his own death. "Any injury or damage suffered by Mr. Zehm was caused solely by reason of his conduct and willful resistance," proclaimed the City of Spokane's official response to the family's civil lawsuit.

Mr. Zehm's "conduct" — which, according to Chief Kirkpatrick and Spokane's municipal government, justified the use of lethal force — consisted of doing exactly nothing. Then again, he was armed with a bottle of Pepsi, which apparently left the heroic Officer Thompson no choice but to stage a preemptive strike with his club and Taser. Perhaps if it had been Mt. Dew, the use of tactical nukes would have been appropriate.

"If all [the victim] wanted to do was surrender, he could have done so," insisted Officer Terry Preuninger, the Spokane PD's SWAT Team Leader and patrol tactics instructor, during the trial. "[Officer Thompson's] assessment was accurate. He continued to use force. It did allow him to keep that man from hurting him or anyone else."

Thompson began his attack within seconds of arriving at the store — before Zehm had a chance to "surrender." Furthermore, the victim was backing away from the officer. According to Preuninger — who, as SWAT leader, approaches such situations with a militarized close-and-kill mindset — this didn't matter: "Picture wrestlers or boxers. It's definitely not an indication that they don't want to hurt or assault you because they move back."

"A police officer becomes an expert in evaluation of behavior or picking out little things that are different," Preuninger asserted on the stand. Victor Boutros, chief prosecutor during the trial, treated that claim with laudable contempt, mocking this supposed preternatural gift of discernment as a "Spidey sense" that "can't be impeached by citizen eye witnesses or video. Only [Thompson] could have seen those things."

Furthermore, according to Preuninger, police have plenary authority to use lethal force even when their perceptions are in error: "A police officer can make a mistake. An officer could believe their [sic] life was in danger or they [sic] were in danger of being assaulted when in fact we could go back in hindsight and show that's not true. But the force would be authorized."

This is to say: From the perspective of the individual who trains the Spokane PD regarding the use of force, Karl Thompson was completely right — but he could have been entirely wrong, and he would still have had the authority to kill Otto Zehm. This is because police officers, who face an all-encompassing threat from the public they supposedly protect, must be entitled to employ aggressive violence at all times, Preuninger maintains: "If you approach law enforcement situations the same way you would a neighborhood meeting … it will directly lead to you getting murdered on the job or getting hurt or assaulted."

Really?

Between 1867 and 2009, a total of 23 law Spokane County law enforcement officers — police, Sheriff's deputies, and one member of the County Game Commission — died in the line of duty. Eleven of them — fewer than half that total — were killed by suspected criminals. Six died in traffic accidents. Two were struck and killed by drunk drivers. Two were fatally shot by fellow law enforcement personnel during training exercises (one of them was killed by a police officer showing off a quick-draw technique), and another was a game warden shot by a hunter who was reaching for a permit. One officer died from a heart attack during SWAT training.

None of those line-of-duty deaths occurred because an officer was insufficiently aggressive during one of the perilous "law enforcement situations" that haunt Preuninger's imagination.

Interestingly, Spokane County — which maintains a police Honor Guard that attends police funerals throughout the Northwest — describes itself as "third in the state for line of duty deaths." This illustrates — redundantly — that law enforcement is not a particularly hazardous occupation. In Spokane, as elsewhere, the citizen in a "law enforcement situation" is at far greater risk than the police officer.

A little more than a year after Otto Zehm was murdered by Thompson and his cohorts, 37-year-old Trent Yohe, the father of a young child, was beaten, tasered, and hog-tied by Sheriff's deputies who had illegally entered his home.

Yohe was asleep when the deputies invaded his home. The last words he heard before lapsing into an irreversible coma were orders from his assailants to stop resisting.

Shortly after the incident, Sheriff Ozzie Knezovich admitted in an official memo that at the time Yohe — a known meth addict subject to Grand Mal seizures — "was never under arrest." The County eventually paid $50,000 stolen from local tax victims to settle a lawsuit filed by Yohe's family.

The deputies who murdered Yohe followed almost exactly the same protocols used by the murderers of Otto Zehm a year earlier. Sheriff Knezovich defiantly insisted that he saw no reason to change those procedures.

This isn't to say, however, that the Sheriff was categorically opposed to reform: In a joint press conference with Chief Kirkpatrick, Knezovich indignantly protested the use of the term "hog-tied" to describe the method used by officers to truss their prone and helpless victims; the appropriate term, he insisted, is "hobbled."

That prompted Seattle Spokesman-Review columnist Doug Clark to compose a lexicon of law enforcement euphemisms.

In keeping with Sheriff Knezovich's delicate sensibilities, Clark suggested that language like the following would be suitable: "Trent Yohe, a methamphetamine addict, was holiday gift-wrapped after a spirited difference of opinion with sheriff's deputies." What about the eyewitness report that deputies had kicked out the victim's false teeth? Easy: Yohe wasn't brutalized — he "participated in a police-assisted dental plan." And henceforth, a Taser will be called a "joy buzzer."

Clark's essay was aimed at the Spokane PD's institutional vanity, a target that's impossible to miss. This prompted Officer Preuninger — who wept openly when Thompson was taken away to jail — to rebuke the impudent

Mundane via a letter to the editor in which the decorated SWAT team leader struck the familiar pose of policeman-as-maligned savior.

"Sleep well, Mr. Clark, because no matter how much you insult me, no matter how low you go to belittle my profession, if you find yourself in harm's way, you need only call and one of us will come and risk our life to save yours: an irony I am quite sure you can never fathom," whined Preuninger in a tone worthy of a passive-aggressive teenage girl.

As is almost always the case in such matters, it is Officer Preuninger who suffers from a severe irony deficiency: None of the officers he trained intervened to save Otto Zehm when that innocent man was being beaten to death by Karl Thompson, who was a "mentor" to the entire force and their preferred candidate to be chief.

Following Thompson's guilty verdict, U.S. Attorney Mike Ormsby asserted that "This is not an indictment of our entire police force." Oh, yes it is.

Reprinted with permission from Pro Libertate.

William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.

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