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Originally published April 11, 2013 at 8:02 PM | Page modified April 11, 2013 at 8:06 PM

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$1 verdict against police costs nearly $600,000 in legal fees

A $1 federal civil-rights verdict against a Seattle police officer who held a man at gunpoint during a 2007 off-duty traffic stop has cost taxpayers nearly $600,000 in legal fees, with maybe more to come, as City Attorney Pete Holmes asks the U.S. Supreme Court to hear the case.

Seattle Times staff reporter

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The jury verdict that awarded $1 to a man who was held at gunpoint too long by a Seattle police officer has cost city taxpayers nearly $600,000 in legal fees, an amount that could climb if the U.S. Supreme Court agrees to take up the case.

So far, the courts have flatly rejected the city’s efforts to overturn the $1 awarded to Andrew Rutherford by a U.S. District Court jury in May 2011, including two losses at the 9th Circuit Court of Appeals.

Even so, City Attorney Pete Holmes has hired former U.S. Solicitor General Gregory Garre for $50,000 to draft a petition, filed last week, asking the high court to take the case. If the Supreme Court takes the case, the amount the city has paid in legal fees will increase.

And the city’s legal challenge has moved beyond simply having the Rutherford verdict thrown out. Holmes is now challenging a 9th Circuit case that limits when police can display a firearm and threaten deadly force during routine investigative stops.

Holmes argues the law poses a threat to officer safety.

Rutherford’s attorneys, in their case, relied heavily on a 1994 California case, Washington v Lambert, which has been the ruling precedent in the 9th Circuit for 16 years.

In it, the judges found that “under ordinary circumstances,” police cannot display a weapon or use restraints during a routine investigatory stop — when they only suspect a crime may have occurred — without violating the Fourth Amendment’s guarantee against illegal seizure.

However, the court recognized a series of “special circumstances” under which such “especially intrusive” means can be legally used. They include uncooperative suspects who pose the risk of danger or flight; if police have information that the person is armed; if the stop occurs in proximity to a violent crime, or in instances where police have information that a violent crime is about to occur.

The judges said that a drawn gun “greatly increases the seriousness of the stop,” and that pointing the weapon has to be reserved for instances where the threat is “clear and present.”

Holmes said the expense of the appeal is justified by the issues at stake, foremost among them the impact on officer safety. The petition says officers should be free to draw their weapon in self-defense without worrying about a “special circumstances” checklist over when they might be sued.

Rutherford’s attorneys believe the city’s argument, if successful, could “broaden police powers in this area” and “lead to more violent encounters with police.”

In the Rutherford case, the jury found that Seattle police officer Jonathan Chin, who was alone, off-duty and in civilian clothes, held Rutherford and two others at gunpoint after chasing the men for several miles in his personal car early on Sept. 9, 2007. Chin said he had seen their car driving erratically on Capitol Hill and suspected they were drunk.

Chin called 911 and followed the men to a cul-de-sac in West Seattle, where he confronted them with his off-duty weapon and ordered them to sit in the street while he waited for backup.

Rutherford was sitting in the street when the first patrol vehicle raced down the street. Afraid it was going to hit him, Rutherford jumped up and moved, according to court documents and trial testimony.

Rutherford was tackled, subdued and restrained by several officers, sustaining a head abrasion that required him to be taken to Harborview Medical Center for evaluation and cost him $3,500 in medical bills, according to documents submitted during the trial.

Rutherford was charged with obstructing an officer, but the charge was dismissed. The driver of the car pleaded guilty to reckless driving.

Chin was criticized by the department’s Office of Professional Accountability for showing questionable judgment in confronting the men alone.

The jury found that Chin’s actions “exceeded the length and scope of the investigatory stop and violated Plaintiff’s constitutional rights.” But it also rejected claims that Rutherford was falsely arrested or that police used excessive force or assaulted him when he was arrested.

Indeed, the jury didn’t award him any damages at all — the $1 was awarded by the trial judge, Chief U.S. District Judge Marsha Pechman.

But the verdict allowed Rutherford’s attorneys to collect their legal fees. Pechman eventually ordered the city to pay lawyers Jay Krulewitch and Michael Kolker $90,000.

That amount has grown to $174,000 since the city appealed the case twice to the 9th Circuit, where it has lost both times.

But the real expense of the case has been the contract lawyers the city has hired to defend it. Holmes’ office paid $376,722.50 to attorney Ted Buck and his firms to defend Chin, according to an accounting provided to The Seattle Times.

Holmes’ spokeswoman Kimberly Mills said the city will pay more.

The $50,000 paid to Garre covers the petition, but expenses will grow if the Supreme Court takes the case. If it doesn’t, Rutherford’s attorneys can ask the city to pay for their defense against the appeal.

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

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