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Judge: Missoula officers used unreasonable force in Peschel case

Judge: Missoula officers used unreasonable force in Peschel case

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A federal judge issued a default judgment Thursday in a civil rights lawsuit against the Missoula Police Department, ruling that officers used unreasonable force when they arrested a retired physician on obstruction charges last year.

U.S. Magistrate Judge Jeremiah C. Lynch handed down the order as a sanction for the department's failure to preserve a video recording of the arrest, during which the 67-year-old plaintiff, Walter Peschel, was pushed or tackled to the ground. The in-car video was inexplicably deleted, as were numerous other video recordings of unrelated police encounters.

Because the video would have allowed jurors to draw their own conclusions about the use of force, "unfiltered by the perceptions or sentiments of the various witnesses," Lynch wrote that his sanction was the most appropriate remedy.

"In view of the importance of the video recordings, it went beyond mere negligence for the department not to have adequate safeguards in place for protection of the recordings," Lynch wrote in the 25-page order. "The principal dispute in this case is whether or not the on-the-scene officers used unreasonable force, under the existing circumstances, to arrest Peschel. The video recording which captured the entire sequence of events surrounding the arrest constituted not only relevant evidence, but the best evidence of the circumstances existing at the time of Peschel's arrest, as well as the type and amount of force used to effect his arrest."

The video was uploaded to the hard drive of a police department computer and viewed by several officers in the days following Peschel's arrest. At some point, however, the video disappeared and a forensic computer analyst could not retrieve it.

In a separate order on Thursday, Lynch dismissed Peschel's claim of unlawful arrest, finding that officers had probable cause because Peschel repeatedly disobeyed orders to leave the side of an armed suicidal woman he was trying to assist. Peschel maintains he was duty-bound as a physician to stay by the woman's side.

The former Missoula physician has an extensive history of heart-related health issues, and was hospitalized for three days after the May 2008 arrest. A jury eventually acquitted him of the misdemeanor obstruction charge at trial.

Judge Lynch also dismissed allegations Thursday that Peschel's criminal prosecution was malicious, and ruled that three individual defendants - including Missoula Police Chief Mark Muir and former Chief Rusty Wickman - cannot be held culpable.

The case is scheduled to go to trial next month, and jurors will hear evidence on a number of Peschel's remaining claims. Besides the amount of monetary damages to award, the jury will determine factual issues like whether the officers Tasered Peschel, which police hotly contest, and if they acted with malice.

Natasha Prinzing Jones, an attorney representing the police department, said several of Lynch's orders on Thursday were beneficial to the defendant because they winnowed the case down.

"There were a number of motions granted in the city's favor, and there were significant gains from the perspective of the Missoula Police Department in that the case was narrowed down substantially to two remaining issues to be tried before a jury," Prinzing Jones said.

She said the legal defense team continues to prepare for trial.

At a court hearing in August, Prinzing Jones argued that a sanction of any kind would be inappropriate because the video was deleted accidentally, not consciously or deliberately. She said witnesses, including numerous on-scene officers, could aptly testify about the circumstances surrounding Peschel's arrest.

But Lynch disputed that argument in his strongly worded order, pointing out that only two non-party or non-interested individuals observed the arrest, and their statements "clearly suggest the arresting officers employed more force in arresting Peschel than may have been necessary under the circumstances."

"In the city's view, it should be allowed to present the testimony of the arresting officers, as well as their colleagues, that the amount of force used to arrest Peschel was reasonable and necessary," Lynch wrote.

"The city coyly argues that if inclined to impose a sanction, the court should simply prohibit the officers from testifying 'as to what they saw in the video.' The city's proposed panacea, however, is illusory. The purported sanction would have absolutely no punitive, deterrent, or remedial value. It is cavalier to suggest otherwise. At worst, the court would be effectively condoning the spoliation of the best evidence available to resolve the factual dispute with the greatest accuracy. The importance of video recordings to the fair, accurate, and expeditious resolution of disputes emanating from encounters between law enforcement and the public cannot be overstated. The court would be remiss to simply ignore, as suggested by the city, the spoliation of the video recording."

Lawyers representing Peschel said they were pleased with Lynch's sanction.

Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com

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