Cops and Courts

A federal judge heard arguments Tuesday on the merits of a retired physician’s lawsuit against the Missoula Police Department, and must now decide what factual issues to allow at trial and which to exclude.

Walt Peschel, 67, of Missoula brought the suit in May 2008, alleging a host of civil rights violations he says occurred during a confrontation with police two years ago. Peschel was arrested after he repeatedly disobeyed police orders to leave the side of an armed suicidal woman he was trying to assist, and was pushed or tackled by an officer when he eventually complied. Peschel, who maintains he was duty-bound as a physician to stay by the woman’s side, was subsequently hospitalized for three days.

But police say the man was profane and belligerent during the encounter and made a dangerous situation worse by refusing to step aside. Peschel was charged with obstructing police after the encounter, though a jury later acquitted him of the misdemeanor charge at trial.

U.S. Magistrate Judge Jeremiah C. Lynch presided over Tuesday’s summary judgment hearing in Missoula federal court, serving as the pretrial “fact finder” to determine whether Peschel’s claims fall under the applicable laws.

During the nearly three-hour hearing, Lynch grilled attorneys on both sides about the legal reasons that either support or dispute Peschel’s lawsuit.

An attorney representing Peschel said testimony and evidence about the disappearance of an in-car police video of the arrest should be admitted at trial, including testimony suggesting that the tape was purposely deleted by a disgraced former police officer, who was one of the last known people to view the video on the department’s computer system.

“This tape was deleted. It was destroyed,” said plaintiff’s attorney David Paoli. “It was valuable evidence that should have been produced to us at the criminal trial, and it should be available to us now. It would show the whole picture.”

Natasha Prinzing Jones, an attorney for the city of Missoula and the Police Department, said the digital file was one of 72 recordings corrupted and lost due to a technical glitch around the time of Peschel’s arrest. She said Paoli’s argument was “mere speculation,” and that administrative officials hired a forensic expert to recover the files, but no trace was found.

Lynch has already ruled that the police department had a duty to preserve the tape for its value as evidence, but will soon decide the extent of what issues lawyers can raise at trial. For example, plaintiff’s lawyers hope to introduce evidence about former officer Jason Huntsinger, who gave the command to arrest Peschel and later resigned from the department after a federal probe showed he downloaded child pornography on a work computer.

Paoli said he believes Huntsinger deleted the tape, and that the recording is “the best evidence we have of disproving officers’ testimony” that the incident was handled according to law.

Lynch said he would rule on the city’s four pending motions for summary judgment “as soon as practicable.”

The defendants have challenged the legal basis for the following of Peschel’s claims against the police department: negligent hiring practices, assault and battery, insufficient training and negligent supervision. They have also challenged his constitutional claims of privacy violations, his claim that police lacked probable cause to make an arrest, and his claim that police used excessive use of force and denied him medical care.

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