San Juan County's insurance pool settles for $75,000 in unlawful arrest claim

San Juan County’s insurance carrier — a pool of Washington counties — has settled an unlawful arrest suit for $75,000.

Sheriff Bill Cumming said Dec. 22 that his officers acted appropriately during the arrest and “I think we had a defensible case.”

Toni Michele of Friday Harbor alleged deputies Nikki Rogers and Brad Korth illegally searched her home, used excessive force and falsely arrested her on March 21. Her lawsuit, filed July 20 in U.S. District Court in Seattle, alleged unlawful search and seizure, unlawful imprisonment, negligence and assault. She filed suit after her damage claim for $250,000 was rejected by county officials.

Michele was represented by Mark Kaiman of the Lustick Law Firm in Bellingham.

According to the lawsuit: Rogers and Korth went to Michele’s home after a neighbor called 9-1-1 and reported a domestic disturbance. Michele, 45 at the time, and her boyfriend had had a verbal argument and the boyfriend left 15 minutes before deputies arrived. Michele was alone in her home when deputies arrived.

Michele told Rogers there had been a verbal argument but there were no injuries and no property damage. Rogers questioned Michele about her alcohol use and asked to search the home, saying she was required by law to make sure no children were present and that there were no injuries or property damage. Michele declined permission, but Rogers entered the home and, when Michele resisted, she was “tackled” to the ground by Korth and Tased.

A search of Michele’s residence “yielded nothing of evidentiary value,” Kaiman said at the time.

Kaiman, a former San Juan County deputy prosecutor, said officers could only search the home without consent if they had an “exigent” circumstance — “I can hear someone screaming, I see broken furniture, I see blood on the walls,” he said.

Michele was charged with obstructing a police officer and assault in the fourth degree, but the Prosecuting Attorney’s office dropped the charges on July 7, Kaiman said.

A message was left for Kaiman at his Bellingham office Dec. 22. In an e-mail, he called the settlement “a huge win for the citizens of San Juan County. It sends a clear message to the Sheriff’s Office that civil and constitutional rights guaranteed to our citizens are not an empty promise.”

Earlier, he said the incident was a result of “poor training and an ongoing lack of supervision by Sheriff Cumming and San Juan County.”

Korth and Rogers joined the San Juan County Sheriff’s Department in 2007. Rogers had 10 years of experience as a law enforcement officer in Phoenix; Korth worked for the Idaho State Patrol and as a correctional officer, according to Cumming.

The settlement will cost the county a $10,000 insurance deductible.

“The advantage of settling is to cut off the potential for a big attorney fee award,” Prosecuting Attorney Randall K. Gaylord said. “Even if the (plaintiff’s) award is $1, the risk pool is responsible for all attorneys fees. That’s what drives these early settlements.”

Gaylord said the county’s case was defensible, but added that the law considers the home “a sacred place.”

“The officers crossed the threshold of the house and went into the house, and eventually brought her to the ground,” he said. “You have to have an important reason to enter the home without a warrant. They did, but that’s something a jury would have to decide.”

Cumming, who retires Jan. 10, stands by his officers.

“I support the officers and what happened at that scene. Our job is to make sure people stay safe. They had enough of a situation (to justify a search).” He said his officers acted based on “facts known to them at the moment.”

The officers were not disciplined. But Cumming said the department did review the case. “We constantly engage in analysis of our activities, review what happened, restate what the policy and the law is. We’re in constant review of how we handle cases, because our actions are always second-guessed by the courts, the public, the victims and the perpetrators.”

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