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Koenig incident spurs two lawsuits

A traffic stop involving Bainbridge Island police and an island attorney more than three years ago has led to the filing of a federal lawsuit and a separate action scheduled next week before the State Supreme Court involving public records issues that arose from the same case.

Bainbridge resident and attorney Kim Koenig filed a “complaint for damages for violations of constitutional rights” last month in the U.S. District Court in Tacoma, naming as defendants the City of Bainbridge Island (COBI), its police department and police officer Steven Cain – a 20-year veteran of the department.

A Tuesday, Nov. 16 hearing in Olympia before the State Supreme Court will involve an appeal by Koenig, two other individuals and several newspapers acting as amicus curiae (“friends of the court”). They seek the reversal of a Pierce County Superior Court’s decision to withhold all records of the City of Puyallup’s criminal investigation of Cain’s actions during the arrest of Koenig on Oct. 1, 2007 on Bainbridge Island.

Law enforcement officials for both Puyallup and the City of Mercer Island concluded in 2008 after third-party investigations were completed that Cain’s actions were not illegal.

However, Puyallup officials released some of the details of Koenig’s complaint – filed with police and the COBI – to reporters before the officer and the Bainbridge Island Police Guild sought a non-disclosure ruling of the records by the Pierce County Superior Court. Specific information about Koenig’s allegations of Cain’s actions had already been reported in at least two newspapers before the court was asked to rule on the issue.

In Koenig’s federal lawsuit, which recently was filed with COBI, she claims she was physically and sexually assaulted by Cain, alleging: “...the defendants violated her civil and constitutional rights under the U.S. Constitution, including her right to free speech, right to be free of unreasonable searches and seizures, right to liberty, right to be free of false arrest and detention, right to privacy, right to bodily integrity, right to be free of false and defamatory accusations and other constitutional rights as shall be established at the time of trial.”

Koenig seeks damages “in excess of $75,000 prejudgment and post-judgment to the extent allowed by law; recovery of costs and attorneys fees; and special and general damages in an amount to be proven at the time of trial.”

The incident began when a COBI police officer made a traffic stop during early-morning hours. Attorney John Muenster was the driver and was accompanied by Koenig, his wife, who was a passenger in the vehicle.

Cain and other officers arrived at the scene while Muenster was being interrogated by the first officer outside the vehicle. Koenig, according to her lawsuit, then asked Cain to be allowed to leave the car in order to provide legal assistance to Muenster. (Muenster & Koenig is a law firm with offices in Seattle and Bainbridge that specializes in police misconduct and wrongful death cases.)

Instead, according to Koenig’s lawsuit, Cain became angry, “arrested her, physically forced her toward his vehicle, forcibly pushed her down onto the rear part of the vehicle and sexually assaulted her by rubbing against her body and forcibly ‘dry humping’ her, and then strangled her around the neck when she called for help.”

According to Koenig, she was then placed in the back seat of the car and arrested on charges of obstructing and resisting arrest. She was later detained, fingerprinted and photographed at the city’s police facility, then released later in the day.

The lawsuit also charges Cain of filing a false police report that claimed he had “hip checked” Koenig rather than sexually assaulting her and stated that she was intoxicated at the time of her arrest. Charges against Koenig were filed with the Kitsap County Prosecutor’s Office, but the prosecutor declined action, citing “insufficient evidence suspect committed crime.”

The lawsuit holds the city and the police department responsible for “repeatedly justifying, approving of and ratifying Cain’s violation of [Koenig’s] constitutional rights and his cover up of his actions as alleged herein. These municipal defendants complemented Cain rather than disciplining and terminating him.”

Muenster is the attorney for the appellants (Koenig, Larry Koss and Althea Paulson) in the Supreme Court case involving the cities of Puyallup and Mercer Island, which is scheduled for oral arguments Tuesday. The entities involved in the amicus curiae brief include Allied Daily Newspapers of Washington, the Washington Newspaper Publishers Association, The Seattle Times, Tacoma News Tribune, Tri-City Herald and Center For Justice.

According to Pierce County Superior Court records, the trial judge ordered an injunction on the records of the 2007 incident on the grounds that privacy would be violated if the Puyallup records were disclosed and that redaction of his name would not be sufficient to protect his identity. Cain argued that the injunction was “essential” to protecting his “right to privacy” (as defined by RCW 42.56.050).

The argument by Muenster and “friends” is that Cain has no right to privacy is his public actions because they were committed in a public place (road) and in full view of witnesses.

Also, Muenster wrote in his amended reply, that release of the Puyallup records to reporters and subsequent stories published removes the “privacy” argument by Cain and his attorney because the investigation’s details were already made public before “the appellants” requested them.

Muenster asked the Supreme Court to remanded to Pierce County Superior Court with instructions to deny the motion for the injunction and “to restore the previously produced copies of the Puyallup public records to the appellants.

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