A Town Divided

Top of China lawsuit proceedings begin in Spokane
Case against three police officers stems from 2002 incident at Pullman restaurant

dnews.com

A class-action lawsuit against three Pullman Police Department officers stemming from a Sept. 8, 2002, incident at the Top of China restaurant has wrapped up its first week in U.S. District Court in Spokane.

Attorney Stuart Estes, who is representing the officers, said the case is off to a good start, with the plaintiffs' witnesses providing contradicting testimony.

"We don't have to prove anything," he said. "We think the plaintiffs' case is falling apart through their witnesses," he said.

The federal case is being heard by eight jurors and U.S. District Judge Fred Van Sickle.

Pullman police officers responding to a reported fight at the Top of China restaurant in downtown Pullman sprayed a fog-like pepper spray into the crowd to thwart combatants. Some of the spray drifted upstairs to The Attic nightclub.

The lawsuit alleges racial bias and use of excessive force by the Pullman Police Department. Many of the partygoers at the nightclub were black students or faculty from Washington State University. Between 300 and 600 people may have been affected by the pepper spray.

Three people were sent to Pullman Memorial Hospital after complaining of eye and skin irritations following the incident. Many people claim to have suffered long-term damage to their eyes.

The 136 plaintiffs are being represented by attorney Darrell Cochran. They are seeking $22 million in punitive damages in the case. It was believed that nearly 600 people may have a case against the officers.

"If they don't show up, it's our opinion that they don't have a case," Estes said.

Estes said two of the three Pullman police officers have been called to the stand by Cochran, who is trying to prove that officers' actions at the Top of China restaurant were inappropriate.

Estes, who will begin his defense Jan. 22, is preparing to call expert witnesses, such as a trainer from the Washington State Criminal Justice Training Commission, to discuss the use of pepper spray.

Estes said the expert will prove the officers used the pepper spray responsibly.

The experts "are going to say that's preposterous. These claims (of long-term damage) are just fanciful," Estes said.

Two former police chiefs from Seattle and Portland also will argue that the officers did not violate codes by entering the restaurant in an attempt to break up the fight.

Proceedings will be held on an every-other-week basis for the next five weeks, Estes said.

"It's still early," he said.

This was an ugly situation. The police were said to be racist because they sprayed people with OC (pepper spray, mace) who were in a fight. At the time the China Buffet was closed, but upstairs, the Top of China was open and a dance was being held. The people fighting were in the China Buffet portion of the business.

The police were called there for a fight. The police showed up and found a fight in progress. The fight did not break up after the orders were given to do so, and OC was used to stop the fight. The OC did the job and stopped the fight, however, people got the secondary effects of the spray. It is an irritant. That is why it works. If you get it in your eyes or on your skin it has a burning and tingling sensation. If you get directly sprayed with it, the concentration is higher than just getting an indirect exposure. That makes a big difference in the amount of pain someone feels.

Typically with time and water the pain sensation will go away. I personally have been sprayed with a direct hit of OC spray as part of training. It was painful. I could not open my eyes for a while and with some water and time it went away. No long term affects. Only the short term pain, which lasts about forty-five minutes, but by the end most of the pain is barely noticeable.

In law enforcement there is a system called the Use of Force Continuum. The idea is that as the need for more force is necessary, you use more force. Necessary means "no reasonable effective alternative to the use of force appeared to exist and the amount of force used was reasonable to effect the lawful purpose intended." Secondly, the use of force continuum varies from department to department, but usually is something like:

Officer Presence - meaning that the fact a policeman is there is typically enough to get most people to stop their illegal actions.
Verbal Commands - Giving a direct, lawful order to stop illegal action.
Taser* - read below.
OC Spray - If just by being there and making verbal commands doesn't work to break up the illegal action, if necessary (read above definition) police will use OC spray.
Hands On - Meaning hair holds, arm bars, other physical actions using just the police officers' hands.
Baton - The use of a stick as necessary (again, the above definition)
Deadly Force - Once again, necessary comes into play.

* With the new taser technology, tasers will be used before OC spray and after verbal commands. The reason is that a taser will stop the illegal action, just like the OC spray, however, a taser stops being painful after five second where as the OC spray will have a longer decontamination period. Many police departments have not started to use tasers, and some that have tasers have not trained all their officers to use them yet. Because of that, a taser is not always an option.

Some people would think that hands on would be preferable to OC Spray and Tasers, however there is more of a chance of a longer term injury from going hands-on, so that is saved for later in the continuum.

In the case of the fight, the officers where there and gave orders, the first two steps in the use of force continuum. Those did not work. It was necessary to use OC Spray. Once the spray was used the fight ended and no additional force was used.

One would think that would be all there was to it, however, in this situation the people in the fight were black. The officers were white, so now we have a situation where there is a claim the officers used too much force, specifically because of racist intentions.

In the aftermath, Glenn Johnson, then the volunteer Public Information Officer for the Pullman Police was fired by then-Mayor Mitch Chandler. There was a lot of heat by the WSU minority community about this being a racial issue. The city had to appear to be "doing something". Johnson's actions were not improper, but the Mayor decided that he had to have a scapegoat. Johnson was an easy one to punish.

Let me rewind to May 1998, there was a riot on the edge of campus where police officers from many agencies where injured. Stores where damages, streets were damaged, and WSU's image had a black-eye over the riot. WSU tried to downplay the riot, where police were sent to the hospital, as "an all night street party that was broken up using small amounts of water and gas." Pullman Police put out a press release that was a little more accurate of the event, but they also worked to downplay the event. Then-Whitman County Sheriff Steve Tomson put out a press release stated the actual events of the riot and did not downplay it at all.

Glenn Johnson was disturbed over the downplaying, even the outright falsehoods in the local releases that he decided to volunteer as the Public Information Officer. He felt he could help tell the truth about events in the future.

That is the history of why Glenn Johnson was the Public Information Officer. He had worked in that position for many years to the praise of the police and fire departments as putting out informational and professional releases. Plus, having him on the scene allows the police to focus on the event at hand while Johnson works with the media to get them the information they need. The Top of China incident was no different, but he got stuck in the middle, and as a volunteer it was easy to fire him.

After the event was over and the university officials started to put the pressure on the city, Johnson was fired, and the city spent tens-of-thousands of dollars on a study by an independent person to look at the response to the fight at the Top of China. A West-side lawyer saw dollar-signs and started a class-action lawsuit.

I know the officers who were involved in this incident and to describe them as racist as well as people who use excessive force is false.

As an example of the police force we have, my barber used to live on the Westside. He said that he has been involved in inter-racial relationships and even has children that are from an inter-racial marriage. While on the Westside he was routinely pulled over because he had a minority in his car. He said since coming to Pullman, that does not and has not happened to him. He personally knows several of the Pullman policemen and there is not an issue of inter-racial relationships.

To make claims about our police being racist is made with no grounds on real facts.