Federal Judge will allow most state claims to proceed in Zehm civil case.
Federal District Court Judge Lonny Suko has denied most of the City of Spokane’s motion to dismiss state-based claims for relief in the Otto Zehm case.
The Center for Justice represents Zehm’s mother Ann and the Zehm estate in the federal civil case which was filed in March of last year. The complaint alleges that Spokane police officers violated Otto Zehm’s civil rights by using deadly and excessive force against him. The suit also alleges that subsequent to Zehm’s death in March of 2006, the City of Spokane both ratified the conduct of the officers who subdued him, and engaged in purposeful conduct to undermine and frustrate the rights of the Zehm family to seek compensation for his unlawful death.
In a ruling that dealt solely with state claims included in the lawsuit, Judge Suko on Friday (January 22nd) dismissed a contempt of court claim because, he wrote, by statute the contempt order could only be issued by a state judge. But Suko denied the city’s motion to dismiss a negligence claim against Spokane police officers, ruling that the facts in the complaint stated a claim for negligence against the city and its officers for not following their training in monitoring Zehm’s physical condition after he was subdued in arm and leg restraints and left on his stomach.
Finally, Judge Suko turned to the Zehm’s invasion of privacy claims. This claim stems from a press conference and concurrent May 31, 2006 press release in which the Center’s attorneys allege the city violated Otto Zehm’s privacy by sharing privileged portions of an autopsy report. While the city contends that the invasion of privacy claim should be excluded because of a two year statute of limitation, the Center’s attorneys argue that the period governing acts by the Chief of Police is three years, and secondly, that the violation was continuing because the press release containing the privileged information remained publicly accessible on the city’s website at least until the fall of 2009.
Judge Suko agreed with the city that the correct time limit was two years. But, at the same time, the judge declined to dismiss the invasion of privacy claims based upon the Center’s second argument, that the city still maintained a publicly accessible web page on its site containing the same disclosures made by Chief Nicks in 2006.
“The City does not respond to this contention,” Suko noted in his order. “As such the court will not dismiss Plantiffs’ invasion of privacy claim. Instead, if necessary, the “continuing violation” issue can be addressed in another 12(b)(6) motion to dismiss or in a Rule 56 summary judgment motion.”
Judge Suko also ruled that the city can be held “vicariously liable” for actions of police officers and other city officials if those actions were in pursuit of the employer’s objectives.
“Based on the alleged facts set forth in the (first) Amended Complaint relating to negligence and invasion of privacy,” Judge Suko wrote, “there is a potential basis for finding the City vicariously liable for those torts if they were in fact committed by city police officers. In other words, the facts alleged indicate those officers potentially acted within the scope of their employment with the city.”
The Center’s Chief Catalyst, Breean Beggs, said he was encouraged by Judge Suko’s ruling.
“The only claim the court removed from the federal case was the potential contempt claim against the city for violating the protective order issued by the state probate court,” he said. “Both sides now agree that the contempt claim should be ruled upon by the state superior court that issued the protective order.”
Judge Suko’s order requires the Center to file a Second Amended Complaint in the case by January 29th and set a hearing date, without oral argument, for February 26th.
–CFJ
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