| Friday, November 20, 2009 |
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Former Spokane County Prosecutor James Sweetser and ex-Washington Court of Appeals Judge Kenneth Kato are teaming up to seek more than $1 million for an indigent man illegally strip-searched by Spokane police and then counter-sued by the city when he filed a lawsuit over the ordeal.
Sweetser and Kato will file an amended federal civil rights complaint against the city of Spokane and the Spokane Police Department for allowing warrantless strip searches in the field – a practice banned by the Ninth U.S. Circuit Court of Appeals in 1991.
U.S. District Court Judge Robert Whaley struck down the city’s strip-search policy last year after appointing the Center for Justice to enter the case on behalf of indigent drug suspect John Burton, 41. Burton was strip-searched by police in the West Central neighborhood in 2005.
No drugs were found on Burton at the time; according to his complaint, several officers mocked him as he stood naked and bent over before them while one declared, “There is no crack in this crack.”
Whaley called Burton’s strip search humiliating – and illegal. “It is clear that our Constitution requires a neutral judge to decide if there is justification for such an indignity,” Whaley said in his June 2007 order.
Now, in their amended complaint to be filed Monday, Sweetser and Kato are pursuing $1.25 million in damages on behalf of Burton – and adding a “tort of outrage” to the original civil rights lawsuit because the city countersued Burton last January under a controversial practice of lashing back against civil rights litigants.
In an investigative report last March, The Spokesman-Review examined a decade’s worth of civil rights claims filed against the city and the police for the actions of its officers – detecting a regular pattern of countersuits. Critics called the routine countersuits unethical because they have a chilling effect on citizens claiming they’ve been abused by the police.
City Attorney Jim Craven told the newspaper last year he intended to curtail the practice.
With Burton by his side Friday, Sweetser said in an interview that Spokane officials haven’t taken Whaley’s ruling seriously enough and haven’t made redress to Burton. Sweetser said it’s time to halt the warrantless strip searches in Spokane and stop the city from countersuing its own citizens.
“It’s very chilling,” Sweetser said. “Here you have a person with no money who can’t hire a lawyer to get access to the courts and then you have a policy that tells them if you try to get access, you may lose everything you have. I believe it’s outrageous.”Countersuits may be justified in some cases, but in this case, “it was an effort to limit Mr. Burton’s access to justice,” Sweetser said. He praised the initial work of the Center for Justice, a public interest law firm, in representing Burton and getting the city’s strip-search policy overturned.
Burton had no attorney and was in jail on two drug charges when he filed his original complaint in 2006 that eventually made it into Whaley’s courtroom.
The new “tort of outrage” claim lacks merit, said Craven, who reviewed the amended complaint on Friday. Craven said there had been settlement talks when Burton was represented by the Center for Justice, but those talks ended when Burton switched lawyers.
Kato, who has been conducting legal mediations and arbitrations since he left the appeals court last January, said he agreed to help Sweetser with Burton’s case because of his long interest in civil rights. “I believe we are going to make a very effective team in presenting the issues that are important in this case,” Kato said. The new complaint also names retired Spokane Police Chief Roger Bragdon, the man in charge of the department when Burton was searched, as a new defendant. The suit also names “John or Jane Doe,” officials within the police department “with knowledge and responsibility for training, policy and supervision” of police officers.
In her oral arguments before Whaley, Assistant City Attorney Ellen O’Hara said the police department had no written policy addressing strip searches of suspects who aren’t in jail or prison, and that officers simply use their discretion when deciding to perform warrantless searches during an arrest.
But Center for Justice lawyer John Sklut told Whaley the department’s practices were a de facto policy and noted that the city of Seattle has a “specific policy” that any strip searches must take place in an institutional setting.
Last April, reacting to the policy issues raised by the Burton case before the City Council’s public safety committee, Spokane Police Chief Anne Kirkpatrick said she would revise the department’s policy guidelines on strip searches, which she called “very generic.”
She said she intended to follow a model policy developed for the International Association of Chiefs of Police, which says strip searching prisoners in the field “shall be conducted only in the rarest of circumstances” where the lives of offices or others may be at risk.
Kirkpatrick could not be reached for comment Friday on whether those changes have taken effect or whether there has been additional training in strip-search policy. Craven said he was unaware if the new policy had been implemented.
Through his lawsuit, Sweetser said he also hopes to force new training in civil rights issues for Spokane’s police officers.
“We want to know how the Spokane Police Department could overlook clearly established civil rights law,” Sweetser said. “We think the department has demonstrated deliberate indifference to its citizens,” he said.
