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Originally published September 15, 2011 at 9:49 PM | Page modified September 16, 2011 at 11:26 AM

City offers $105,000 to toss out $1 verdict

The Seattle City Attorney's Office offered to pay $105,000 — including a $15,000 "bonus" — to the lawyers of a man who in June won a $1 civil-rights verdict against a Seattle police officer if they would join in a request to have the judgment thrown out.

Seattle Times staff reporters

OPA report in the Rutherford case

quotes Straight up Big Easy style corruption. Not even thinking it needs to be hidden. These... Read more
quotes In other words, You Seattle have to pay $105,000.00 so Seattle police can protect their... Read more
quotes ... and of course the lawyers always get paid!!!!!! Read more

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The Seattle City Attorney's Office offered to pay $105,000 — including a $15,000 "bonus" — to the lawyers of a man who in June won a $1 civil-rights verdict against a Seattle police officer if they would join in a request to have the judgment thrown out.

City Attorney Peter Holmes said the decision was "business, pure and simple" and had nothing to do with the fact that the verdict could be used against the officer, Jonathan Chin, and the department in another federal lawsuit stemming from a 2009 incident in which Chin wounded a man in a shooting in a Central Area parking lot.

Andrew Rutherford won the $1 verdict in U.S. District Court after jurors determined that Chin, who had confronted Rutherford and two other men following a traffic violation, had violated Rutherford's civil rights by holding him too long at gunpoint.

Holmes, however, said the city disputes the verdict and believes Chin, who was off-duty at the time of the incident, did nothing wrong. Chin's career is at stake, Holmes said, "and I care about that."

"This is a fine, proactive young officer," he said.

What is also at stake, according to Rutherford's lawyers, is the city's potential legal exposure in a pending federal lawsuit filed by Demetrius James, the driver of a car who was shot by Chin in a video-recorded confrontation in the parking lot of a Central Area restaurant.

If the verdict in the Rutherford case is allowed to stand, lawyers in the James case could seek to have it introduced as evidence of Chin's past problems and conduct. The city's attempt to have it essentially erased from the docket has angered James' attorney and prompted Rutherford to reject any of the city's offers, his lawyers say.

In a statement Thursday, Jay Krulewitch, one of Rutherford's attorneys, said his client "cannot agree to set aside the jury's verdict that Officer Chin broke the law and violated his constitutional rights. Officer Chin's misconduct should not be swept under the rug."

"They are trying to sanitize Officer Chin," said Seattle attorney Lee Rousso, who represents James. "It's unconscionable."

Judge says no

The city and Police Department have objected to the verdict.

Chin's attorneys, with the firm Stafford Frey Cooper, have twice asked U.S. District Judge Marsha Pechman to set aside the jury's verdict. But she has rejected their requests, concluding in a ruling last month that their "argument is poorly thought through and certainly not well taken."

Stafford Frey, which contracts with the city to handle police-abuse cases, has billed the city for more than $340,000 so far to defend Chin in the Rutherford case.

Rutherford was a passenger in a Jeep that Chin said swerved in front of his car and ran a red light on Capitol Hill in September 2007. Chin, an off-duty rookie officer in plainclothes, followed the car to West Seattle while dialing 911 and calling for "fast backup," an urgent call for help.

Alone and outnumbered, Chin drew his weapon and ordered the three men to sit in the street while other officers responded. Rutherford was held at gunpoint when the first patrol car sped down the street. According to testimony at the seven-day trial, when Rutherford jumped up to get out of the way, Chin and two other officers tackled and subdued him.

Rutherford suffered facial and head injuries, according to court pleadings.

He was charged with obstructing an officer, but the charges were dismissed.

In the civil suit, the jury issued a narrow verdict, finding that Chin did not use excessive force or falsely arrest Rutherford. It did find, however, that Rutherford was detained longer than the law allows. Pechman awarded Rutherford nominal damages of $1, allowing his attorneys, Krulewitch and Michael Kolker, to seek attorneys' fees.

Shortly after the verdict, but before the fees had been ordered, Rutherford's attorneys were contacted by Marcia Nelson, who oversees the Torts Division in Holmes' office. She offered them $42,000 — $14,000 for Rutherford and $28,000 in attorneys' fees and costs — if they would join in an unusual motion to have the verdict against Chin set aside, according to documents obtained by The Seattle Times through a public-disclosure request.

Pechman would have to agree to the motion before the money could be paid, according to the documents.

Kolker and Krulewitch countered by asking for a lump-sum settlement of $275,000, an offer that Krulewitch characterized as "generous" given how much the city had paid Stafford Frey Cooper to that point. The city refused.

Rutherford's lawyers then asked Pechman to set attorneys' fees at more than $400,000, but she awarded $90,045.

After Pechman awarded the $90,000, Holmes said Thursday, the city's offer to Rutherford's attorneys was increased to that amount, plus a $15,000 "bonus," for a total of $105,000. The bonus was arrived at, Holmes said, because that was the amount Stafford Frey had said it would charge the city to handle Chin's appeal.

The $105,000 would have been in lieu of the court-ordered attorneys' fees.

Rutherford's lawyers rejected the offer Aug. 19 in a letter in which they expressed doubts whether Pechman would grant such a motion and pointed out the negotiations would have been better received had they been made before three years of litigation.

In his suit, Rutherford had initially asked for $3 million, but he offered to settle for $300,000. The city's largest offer before trial was $10,000, Krulewitch said.

Krulewitch said the outcome of the case was predictable because the Police Department's Office of Professional Accountability (OPA) had questioned Chin's actions in a 2008 report.

The department ordered "supervisory intervention," and OPA Director Kathryn Olsen wrote of her "concern ... with regard to the legal justification [Chin] had to require all three occupants to sit down on the ground" and said Chin showed a "questionable use of discretion" when he forced a dangerous confrontation by acting alone.

Costs for the case now likely exceed $425,000, including Stafford Frey's bills and Pechman's fee award to Rutherford's lawyers. The city has appealed the case, but Holmes said it would be handled in-house and not by Stafford Frey.

The James case

Holmes insisted Thursday that the efforts to set aside the verdict in the Rutherford case were made "in isolation" of the pending litigation in the Demetrius James lawsuit, which is set for trial in January. Holmes also noted that he has brought assault charges against two Seattle police officers this year in unrelated incidents.

James' lawsuit alleges Chin and his partner, Gerald House, approached James and two other men in a parked car because they were black, sparking a wild confrontation in the restaurant parking lot. As James sought to drive away, House Tasered James, who said he lost control of the vehicle when hit by the electric jolt. As the vehicle continued to roll, Chin fired into the car, hitting James in the wrist.

According to the suit, James was a professional pianist but no longer has flexibility in his shattered wrist.

The suit alleges that the officers used excessive force and violated James' constitutional rights. It seeks at least $15 million in damages.

The city argues the officers acted prudently after noticing the car had mismatched license plates in a high-crime area. While the car was not stolen as the officers initially suspected, they were justified in the stop, the city says.

The city alleges James did not comply with officers' commands and nearly struck the officers with the car.

James, who was wanted for parole violations, was arrested and charged with second-degree assault. Prosecutors noted that a loaded gun apparently was thrown from the car.

After two mistrials and more than 400 days in jail, James pleaded guilty to third-degree assault.

The Police Department's Firearms Review Board found the shooting justified.

However, the board's citizen observer, Seattle attorney Rebecca Roe, disagreed.

"Only after officers decided to approach the vehicle did they discover nonmatched plates that may have meant the car was stolen," Roe said.

Chin had no reason to believe he was in danger until he blocked the car from leaving, a violation of department policy, Roe wrote.

Firing into the car, she said, "was ineffective and harmed someone the officers did not know to be involved in any criminal activity."

Sgt. Sean Whitcomb, Seattle police spokesman, said Chin acted "commendably and did the best job he could under the circumstances."

Mike Carter: 206-464-3706 or mcarter@seattletimes.com

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com

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