Washington State Considers Ending the 'Virtual License to Kill' Given to the Police
Prosecutors from all of Washington State’s 39 counties will meet this week to consider possible changes to that state’s law regarding lethal force by police, which enacts a virtually impregnable wall of “blue privilege” around officers who kill while on duty.
Enacted in 1986 with strong support from police unions, RCW 9A.16.040, which addresses “Justifiable homicide or use of deadly force” by a police officer, assumes that officers who kill, act in good faith unless “evil intent” can be proven.
Jamitha Burley of Amnesty International describes the Washington statute as “the most egregious” law of its kind in the United States. Attorney Jeff Robinson, who directs the Washington ACLU’s Center for Justice, believes that the statute is “virtually a license to kill.” King County Prosecutor Dan Satterberg observes that officers who use lethal force in Washington are protected by an “almost perfect defense” – not merely the “qualified immunity” routinely invoked by police everywhere, but something closer to absolute impunity.
Examining official records obtained through a freedom of information request, the Spokesman-Review newspaper found that only one officer has faced criminal charges for the unlawful use of deadly force while on duty: Spokane Officer Karl Thompson, who was sentenced to four years in a minimum-security prison for the 2006 beating death of mentally handicapped Otto Zehm at a convenience store.
At the time of his trial, Thompson was on track to become Spokane’s police chief. He was not convicted of criminal homicide, but rather of excessive force and concealment of evidence. Despite being the exceptional episode in which a Washington police officer was held legally accountable for killing an unarmed citizen, the Otto Zehm case offers a compelling study of the culture of arrogant privilege and institutional dishonesty that has been nurtured by Washington’s use-of-force law.
Thompson was the first of seven officers who responded to a call that Zehm, an unemployed janitor, was acting strangely at a convenience store. Upon his arrival, Thompson ordered Zehm to to drop the two-liter bottle of Pepsi he was about to purchase. Puzzled, Zehm reasonably asked, “Why?” Interpreting that momentary act of non-compliance as unlawful resistance and perhaps a threat to officer safety, Thompson lit into Zehm with his nightstick, clubbing him first in the legs, then on the shoulders, neck, and head. The Spokane PD’s use-of-force policy defines blows to the head as lethal strikes that are justifiable only when a suspect threatens the life of a police officer or bystanders.
As the security video documented, 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.
“All I wanted was a Snickers bar,” Zehm whimpered as Thompson beat him.
The assailant escalated by tasering the victim 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 backward – 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.
Zehm died at a nearby hospital about two hours after the gang assault – but the Spokane PD was not finished with him.
Within hours of the victim’s death, 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. Two weeks later, 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.
Detective Ferguson had little time to investigate what was done to Zehm, because she was too busy investigating the victim. She 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. (It’s worth remembering that officer-involved deaths are usually investigated as “suspected assaults on law enforcement,” rather than as suspected criminal homicides.)
Under the pressure of a threatened lawsuit, Spokane County Prosecutor Steve Tucker released the video recordings of the assault, which he and the police had previously 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 U.S. 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.”
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 Zehm had been “armed” with 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 federal trial in Yakima. “[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.”
The testimony of Robert Bragg, who directed use-of-force training for recruits at Washington’s police academy, contained a very different assessment. According to Bragg, Zehm displayed no signs of aggression, flinching away from the officer, rather than “lunging” at him.
“Given the lack of reasoning for the use of force, everything that follows doesn’t serve a legitimate law enforcement purpose,” Bragg concluded.
Following Thompson’s conviction, his comrades on the force – some of them in tears – gathered outside the courthouse to salute the convicted felon in full view of Zehm’s grieving family, a gesture giving tacit but eloquent expression of the “Only Blue Lives Matter” attitude that has become pervasive in law enforcement.
If the Justice Department hadn’t conducted a civil rights investigation, it’s likely that Karl Thompson would be Spokane’s incumbent police chief, rather than a convicted felon – albeit one who continues to receive his taxpayer-funded pension. Not surprisingly, given the statutory protection afforded to killer cops in Washington, such killings have been “surging” in recent years, according to the Spokesman-Review.
A study conducted by the paper found that there were, on average, 16 police killings each year from 2005-2009. From 2010-2014, that figure increased to 27 per year. During the same period, on-duty deaths of law enforcement officers in Washington – and the rest of the country – have been in decline.
In Washington, as elsewhere, police unions and lobbyists protest that “war” has supposedly been declared on the police, although it’s more accurate to say that the police have declared open season on the public.