Kristin M. Kraemer
The Tri-City Herald
A Washougal man was justly awarded more than $1.5 million after he was bitten in 2003 by a Kennewick police dog, a federal appeals court announced Tuesday.
The 2007 jury verdict in favor of Ken Rogers and a later decision to increase the total tab to cover court costs were not “grossly excessive or monstrous.”
The decision by the 9th U.S. Circuit Court of Appeals upheld the federal case, brought by Rogers against the city of Kennewick, Benton County and four law enforcement officers.
Rogers sued on the grounds that his Fourth Amendment rights against unreasonable seizure were violated when the officers allowed a police dog to enter the fenced backyard where the man was sleeping and attack him.
The jury decided that the officers acted maliciously or in reckless disregard for his constitutional rights.
“Although Mr. Rogers was not the actual suspect that the police officers sought, the police K-9’s biting of Mr. Rogers constituted a seizure under the Fourth Amendment,” the six-page decision said.
Rogers and his wife, Mary Lou, were awarded nearly $1.1 million in compensatory and punitive damages.
The appeals court said substantial evidence supported the award for future economic damages, while the amount for punitive damages “was not excessive considering the officers’ conduct and the amount and proportion of the damage awards.”
Three months after the jury verdict in a Richland courtroom, U.S. District Judge Ed Shea - who presided over the trial - increased the award by $516,000 to pay court costs and attorney and paralegal fees.
The Rogers family has yet to receive any money as the city quickly filed an appeal.
Larry Ziegler, one of three attorneys for the Rogerses, on Tuesday said maybe now his clients will get paid.
“There is a Santa Claus, there really is a Santa Claus,” he said. “This thing has dragged on for so long.”
Ziegler, a longtime friend of Ken Rogers, said he never had any doubts about the case.
“I knew it was a good case when we started it,” he said. “I knew that we were telling the truth, and I thought that we had the law and the facts on our side.”
The appeal was argued Nov. 21 in Seattle before three appeals court judges.
Jerry Moberg, an Ephrata lawyer hired by the insurance company that covered the city at the time, could not be reached Tuesday afternoon.
Kennewick City Attorney Lisa Beaton told the Herald in August 2007 that the city had already maxed out its $100,000 financial liability in the case. The insurance carrier is on the hook to pay the rest, she said.
The case could be appealed to the U.S. Supreme Court.
It all started with a minor traffic case in the early hours of July 13, 2003. Police were looking for a person riding a Moped without a helmet or headlight.
Meanwhile, Rogers was asleep in a backyard on West Victoria Street.
Deke, a Kennewick police dog, followed a wrong scent into the yard. Believing Rogers was the suspect, Deke latched onto him and in the struggle bit him several times on the hand, back, neck and face while three officers beat him.
Rogers said he fought back because he wasn’t wearing his glasses and thought he was being attacked by prowlers. His innocence was never questioned during the lawsuit.
The Kennewick native was in town at the time to visit family and to fish.
He suffered permanent nerve damage to his left hand - and he is left-handed, hearing loss in his right ear and mental anguish and anxiety. The attack also aggravated a disabling back injury.
At trial, one of his lawyers Diehl Rettig said it was an illegal use of excessive force.
Rogers told the Herald after the 2007 verdict that if police administrators had called him in the attack aftermath, it would have gone a long way. But when nothing happened, he decided to file the lawsuit to make sure this type of incident doesn’t happen to someone else.
The lawsuit accused the agencies of unlawful imprisonment, false arrest, undue search and seizure and of failing to get him adequate medical treatment.
Rogers sought punitive damages against Kennewick Sgt. Richard Dopke, police officers Brad Kohn and Ryan Bonnalie and sheriff’s Deputy Jeff Quackenbush, but only Dopke and Kohn were ordered to pay.
Dopke retired in 2003 after an internal affairs review of the incident recommended his demotion to a patrolman and relief of his supervisory duties.
Bonnalie was fired from the department in 2005 after he brandished his loaded police gun while off duty during a road rage incident.
Deke retired from the force in early 2006.
“We think everybody benefits on this,” Ziegler said. “It just sends a damn strong signal that this kind of stuff just is not going to be tolerated. There just is a line that you don’t cross.”
Copyright 2008 Tri-City Herald