Tape shows evidence of excessive force during '08 arrest in Seattle, judge says

A federal judge has ruled that a civil-rights lawsuit against the city of Seattle and a police officer should be decided by a jury after finding evidence the officer used excessive force during the videotaped arrest of a man in 2008.

U.S. District Court Judge John Coughenour last week denied the city's motion to have the lawsuit filed by a Seattle man thrown out, citing the dashboard-camera video from the officer's patrol car that both sides are relying on to prove their case.

In his ruling, the judge says he found evidence to support John Kita's claim that the city has a "local custom" of allowing abuses by police.

The Police Department says the video exonerates Officer Kevin Oshikawa-Clay of using excessive force during the Feb. 2, 2008, arrest of Kita for allegedly assaulting a woman. Oshikawa-Clay was later praised by his supervisor for showing good judgment and restraint while facing a "noncompliant, assaultive and intoxicated suspect."

Kita's attorney, Paul Fogarty, argues in court pleadings that the tape shows his client complied with the officer's orders, but got roughed up anyway. Fogarty also points out that Kita was acquitted at trial.

"There is no evidence that Kita resisted in any way at all," Fogarty wrote in one pleading.

In his ruling, Coughenour says the video doesn't prove either party's case. He said it raises enough questions that Kita should have his day in court.

"Because this court cannot tell for certain which party is right, this is an easy decision," he wrote. "The jury shall decide."

Both Fogarty and Heather Carr, an attorney representing the city and the officer, declined to comment on the lawsuit because the case is ongoing. Carr did say an appeal of Coughenour's ruling was "an option."

Seattle police spokesman Sgt. Sean Whitcomb said the department doesn't comment on pending litigation.

The video captures the arrest of Kita, 49, beneath the Interstate 5 overpass at Sixth Avenue and Cherry Street.

Oshikawa-Clay had spotted Kita apparently struggling with a woman and pulled up to investigate. After getting out of his patrol car, Oshikawa-Clay — his hand on his weapon — ordered Kita to walk to him and place his hands on the hood of his patrol car.

Coughenour, in his order, wrote that the next portion of the video shows that Oshikawa-Clay "suddenly strikes [Kita] in the back of the head with the heel of his hand. [Kita's] head bounces once off the patrol car's hood. [Oshikawa-Clay] then uses both of his hands to grab [Kita's] right arm and drag [Kita] across his own body and onto the ground."

The video then shows Oshikawa-Clay placing his knee in Kita's back and striking him twice. The officer then forces Kita's right arm behind his back and waits for backup.

Kita was not charged with resisting arrest, according to records.

Kita says he suffered injuries to his neck and back that have left him unable to turn his head and with constant tingling in his hands, according to the pleadings.

Oshikawa-Clay said in a sworn affidavit that he felt vulnerable and needed to get Kita under control quickly. He described the first blow to the back of Kita's head as a department-approved "distraction technique" designed to give an officer a slight tactical advantage in a physical confrontation.

He said Kita was tense, and was actively resisting placing his hands on the hood of the patrol car. Likewise, he said the two blows to Kita's back while on the ground were intended to get him to comply. After the arrest, Kita can be heard apologizing.

The department claims Kita was intoxicated, which he denies.

According to the pleadings, the video was reviewed that same day by Seattle police commanders and later by a lieutenant in the department's Training Division. All concluded that Oshikawa-Clay's actions were within department policy.

His supervisor wrote that Oshikawa-Clay "used the minimum force necessary to effect the arrest of the noncompliant, assaultive and intoxicated suspect" and that the officer's "quick reaction, sound decision-making ability and restraint ... is praiseworthy."

Kita said he was punched without justification.

"When up against Clay's car, I had my back to Clay and my neck was completely exposed to forces on it and my head," he said. "I did not see the blow coming and was not prepared for it."

In his ruling, Coughenour cites the supervisor's praise and the department's command-level sanction of Oshikawa-Clay's use of force as evidence that a jury could use to conclude that Kita's injuries resulted from the city's "alleged local custom of sanctioning the constitutional violations of its police officers... ."

The ruling comes as the U.S. Department of Justice is investigating the department over allegations of brutality and biased policing in several incidents, including some captured on video. The incidents include the fatal shooting of a First Nations woodcarver in August and an officer threatening to beat the "Mexican piss" out of a prone Latino man a year ago.

The officer involved in the shooting, Ian Birk, resigned from the force and is now the target of a separate criminal civil-rights investigation by the Department of Justice.

Last week, a veteran Seattle police officer was charged with fourth-degree assault in municipal court after repeatedly kicking a teenage suspect in a convenience store in October. That incident was caught on a surveillance camera.

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

Information from Seattle Times archives is included in this report.