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POSTED: Saturday, Feb. 07, 2009

Jury awards Custer man $500,000 for false arrest by Whatcom Co. deputies

A Custer man's arrest in 2004 will cost county government more than a half-million dollars after a federal jury ruled he was falsely arrested and Tasered in the genitals by Whatcom County sheriff's deputies.

Brian Wiederspohn, 57, sued the county in U.S. District Court in Seattle in December 2007. After a five-day trial last month, a jury ruled in his favor Jan. 30 and awarded him $500,000 in damages, according to federal court records.

"This has been a huge ordeal," Wiederspohn said. "We're totally exhausted. I have not had time to decompress."

The $500,000 award undoubtedly will grow because the county also will have to pay legal costs, said his attorney, Murphy Evans. The Bellingham-based attorney, who handles civil rights cases, said he's still tallying how much that will cost.

"It's going to be substantial," Evans said.

It's far more substantial than what Wiederspohn initially sought during settlement discussions with the county. He asked for less than $100,000 during mediation, said County Civil Deputy Prosecutor Randall Watts.

"We didn't view the value the same as the jury did," Watts said. "That's basically why we went forward. We didn't think it was worth what the jury thought it was worth."

Deputy Administrator Dewey Desler said he has only briefly spoken with other officials about the lawsuit, but he said it's unlikely county prosecutors will appeal.

The county would pay the settlement through its insurance program, which includes a pool of counties around the state, as well as a tort fund the county manages, Desler said.

But the county's insurance has a $100,000 deductible and won't cover the $300,000 in punitive damages.

That means the county will pay about $400,000 of the settlement costs from the tort fund, which, in the end, will have to be replenished using money from the general fund - the pot of money that provides most of the services taxpayers get.

In addition, the county's insurance premiums are likely to go up due to the jury's award, Desler said. It's unclear how much they will increase at this time.

"You're right, we do pay out the money and this really hurts," Desler said. "We want to see a highly effective and professional law enforcement presence, which will not be subject to these kind of damages. It's our understanding these are good, high quality deputy sheriffs."

THE JURY'S VIEW

Deputies Jeremy Freeman and Trevor Vander Veen, arrested Wiederspohn at his home on the night of Dec. 28, 2004, on suspicion of third-degree assault.

The jury found that Freeman and Vander Veen did not have probable cause to arrest Wiederspohn, that they maliciously prosecuted Wiederspohn and that Freeman's conduct was malicious and disregarded Wiederspohn's rights.

Freeman and Vander Veen still work for the Sheriff's Office and have not been disciplined, Sheriff Bill Elfo said.

Elfo said that although the jury found that the deputies acted improperly, expert witnesses hired by the county to defend it against the lawsuit determined the deputies acted appropriately.

Elfo said his office will continue to review the incident to determine if any action is necessary.

"Deputies have to make split-second, life-and-death decisions," Elfo said. "We're not acknowledging that the deputies acted inappropriately. We're going to dissect this entire incident."

THE ARREST

Freeman and Vander Veen went to Wiederspohn's house because they had a warrant to arrest a runaway boy who was dating Wiederspohn's step-daughter. The boy was inside the home at the time, according to federal court records.

Freeman knocked on the door, and Wiederspohn answered. While they were talking, Freeman put his foot inside the door, and Wiederspohn asked that he remove it. While he had an arrest warrant, Freeman could not enter any part of Wiederspohn's home without a search warrant or Wiederspohn's consent, Evans said.

Freeman refused to remove his foot, and he and Wiederspohn began arguing.

Both parties dispute what happened next. Freeman and Vander Veen contended that Wiederspohn then tried to slam the door but hit Freeman's foot, which Freeman considered assault.

Wiederspohn contends that he looked away briefly and Freeman burst through the door and tackled him.

In both accounts, Freeman wrestled Wiederspohn to the ground inside his home. While the two were on the ground, Vander Veen fired a Taser at Wiederspohn, striking him once in his stomach and genitals.

To explain why Freeman put his foot inside Wiederspohn's home without his consent or a search warrant, both deputies wrote in their reports that they were standing on rickety steps that would collapse if Freeman, at the time standing 6-foot-5 and weighing 216 pounds, put his full weight on them.

This corroborated with their account of Wiederspohn assaulting Freeman by slamming the door on him, and they forwarded the report to the Whatcom County Prosecutor's Office to have charges filed.

Senior Deputy Prosecutor Eric Richey charged Wiederspohn with third-degree assault, and he was eventually brought to trial in February 2006.

Both deputies gave their account at the criminal trial and included the rickety steps.

Yet there was a glaring hole in their accounts - Wiederspohn does not have rickety steps in front of his house.

He has had a concrete ramp in front of his house for at least 25 years, his wife, Susan, said. At the criminal trial, they brought their pastor in to testify that he had walked up the ramp for at least 17 years. They also used a photo of the ramp from 1996 that was taken during an appraisal of the home, Susan Wiederspohn said.

A Superior Court jury acquitted Wiederspohn of the criminal charge. Evans said the deputies included the rickety steps in their reports to cover up Wiederspohn's illegal home entry.

"Their story made no sense," Evans said. "They had to cover up their own wrongdoing. The question of this was, did Mr. Wiederspohn tell the truth? Or did the deputies tell the truth? Obviously the jury believed Mr. Wiederspohn."

During civil depositions before the lawsuit went to trial, the deputies were shown a clearer photo of the ramp dated June 2004 - six months before the arrest - and they admitted they had been wrong, Susan Wiederspohn said.

Deputies didn't know when they came to the home that less than a year before Wiederspohn had pleaded guilty in October 2003 to felony unlawful imprisonment and misdemeanor assault against his former wife, Sonja Wiederspohn, said Chief Civil Deputy Prosecutor Watts.

When they went to the home in 2004, Susan Wiederspohn's name showed up on a computer check of the address, so deupties didn't know any background on Brian, Watts said.

Elfo defended his deputies' decisions. He said it was dark outside the home, the deputies were focused on the runaway and Wiederspohn being combative with them, which led them to mistake a concrete ramp for wooden stairs.

THE AFTERMATH

Elfo said Whatcom County Prosecutor Dave McEachran has determined that despite the jury's findings, Freeman and Vander Veen are exempt from the U.S. Supreme Court's 1963 ruling in the case of Brady v. Maryland. That ruling requires prosecutors to notify defendants if an officer involved in their case had knowingly lied in testimony or reports.

Watts said that the county doesn't believe the deputies lied.

"Like my argument to the jury, if someone's going to lie about something, why would you pick something that's so easily disproved?" Watts said.

This case will become part of deputy training now, Watts said.

"Had he stepped back, this wouldn't have happened. I suppose what we're going to encourage is that they step back and not forward," Watts said.

Wiederspohn said he's not sure what he and Susan will do now that their case is over.

"We haven't had time to filter this," Wiederspohn said.

Friends have been coming over to congratulate them on winning the case, and Brian Wiederspohn has kept a good sense of humor in warning them of the dangers of walking up to their house.

"Be careful," Wiederspohn shouted to a friend as he walked up the concrete ramp to his house. "Don't fall off my old, rickety wooden steps."