Otto Zehm is responsible for the events that led up to his death while in police custody, the City of Spokane said Friday as it asked a federal court Friday to dismiss a lawsuit filed by Zehm’s mother.

A 56-page response to the civil rights claim by Ann Zehm offers previously unreleased – and, according to her lawyer irrelevant – information about a 1990 altercation between Otto Zehm and a county sheriff’s deputy. It also includes a description that Zehm was “on something” which was not in the transcript of the tape of the 911 call released by the city in 2006.

“Otto Zehm knew or should have know that he was being detained by a peace officer and had the duty to refrain from using force to resist such detention,” the city contends in its response, prepared by assistant city attorney Rocco Treppeidi and private attorney Carl Oreskovich, who is under contract with the city for assistance on the Zehm case and represents one of the officers named in the suit. “Any injury or damage suffered by Mr. Zehm was caused solely by reason of his conduct and willful resistance.”

Breean Beggs of the Center for Justice, who is representing Ann Zehm, said the court filing is typical of the city’s overall response on the Zehm case: “They’re doing the classic ‘blame the victim’ tactic.”

Zehm, a 36-year-old Spokane man, was approached by Officer Karl Thompson in a north Spokane Zip Trip on the night of March 18, 2006, after a woman called 911 about suspicious activity at a nearby automatic teller machine. Thompson ordered Zehm to stop, drop a two-liter bottle of soda he was holding and, when Zehm didn’t comply used a baton and Taser to subdue him.

After other officers arrived, Zehm was handcuffed and then hogtied. He later suffered a heart attack and died before he arrived at a hospital.

In court papers filed Friday, the city maintains Zehm, who suffered from schizophrenia, was responsible for his death and that police acted properly that night at the Zip Trip.

Zehm was able to function “moderately well” despite his illness as long as he took his prescribed medication, the court documents contend. In the weeks before the incident, however, he stopped taking that medication “leading to a significant deterioration in his functioning capacity, including but not limited to episodes of major confusion and paranoia.”

The city also contends in its response that Zehm had a history of resisting arrest, based on an incident that happened in August 1990. In that case, the court documents say, a county sheriff’s deputy encountered Zehm “wandering along an arterial in a confused manner wearing ripped clothing” and seemed lost and confused.

The deputy decided to take Zehm to Sacred Heart Medical Center for evaluation, and attempted to keep him from running away. Zehm assaulted the deputy, the court papers say, had to be wrestled to the ground and during the struggle “twice tried to get the deputy’s gun in his holster.” With the help of backup officers, he was hobbled, carried to a patrol car and taken to jail. He was never charged, but was referred for mental health evaluation and treatment.

Beggs said he doubts the court will find either argument relevant in the case. Thompson didn’t know about the 1990 incident or Zehm’s mental illness and medication when approaching him in the store. The incident with the deputy happened long ago and under completely different circumstances.

“I can’t imagine that a court would let that come into evidence,” Beggs said.

The city also contends that officers had reason to believe Zehm was on drugs, based on information from the person who called 911 to report suspicious activity at the ATM. The court filing includes dialog from an audio transcript in which the dispatcher asked “Did he seem high or intoxicated?” The caller replied “I don’t think he was drunk…he’s high on something.”

But that exchange is not audible on a tape released by police in July 2006, and Beggs said it does not match the tape the center was given.

“The one we have doesn’t have that,” he said.

The court document also defends the public statements of acting Police Chief Jim Nicks after Zehm’s death. Nicks said at a press conference that Zehm had lunged at Thompson, and that for the majority of the time that he was in restraints, Zehm was kept on his side. A review of video tapes showed no evidence that Zehm ever lunged at officers, and that he was on his stomach for a significant period of time.

“Both statements were believed to be true when made,” the city said, but were later “clarified and revised” during the investigation.

Both sides are asking for a jury trial for the lawsuit, but significant steps must be taken before that happens, including depositions and interviewing of expert witnesses. Depending on U.S. District Judge Lonnie Suko’s schedule, a trial might not occur until late 2010 or 2011.

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