Supreme Court orders release of reports involving Bainbridge police officer.
By BRIAN KELLY
Bainbridge Island Review Editor
August 18, 2011 · 4:59 PM
The State Supreme Court released a ruling Thursday that reverses decisions made by two separate superior court orders involving the withholding of public information stemming from a 2007 traffic stop of Bainbridge Island residents by an island police officer.
Justice Mary Fairhurst authored the lead opinion of the 8-1 decision that orders the release of two criminal investigation reports of the 2007 incident made by Puyallup and Mercer Island police departments in accordance with the state’s Public Records Act (PRA).
The ruling, however, also orders that the PRA case be remanded back to the Kitsap County and Pierce County superior courts with the stipulation that Bainbridge Police Officer Steven Cain’s identity be redacted before the reports are released to the public.
“We hold that Officer Cain has a right to privacy in his identity, regardless of the media coverage stemming from the production of the PCIR (Puyallup Criminal Investigation Report),” wrote Justice Fairhurst.
The lead opinion was signed by four justices, while a “dissent in part” was signed by four others. (Justice Charles Wiggins, a Bainbridge resident, did not participate in the appeals case.)
Justice Barbara Madsen, who authored the “dissent in part” opinion, agreed with the appellants that the reports should be produced in their entirety “because respondents, Bainbridge Island Police Guild and officer Cain have failed to establish that either the personal information exemption or the investigative records exemption of the PRA applies to prevent production of the reports in full.”
Justice James Johnson was the lone dissenter and argued that “...information connecting the individual officer to unsubstantiated allegations has already been made public [and] further disclosure of the investigative records in any form invades and violates the individual officer’s rights to privacy.”
The traffic stop involved Bainbridge Island police and island attorney Kim Koenig on Sept. 30, 2007, and also led to Koenig filing a “complaint for damages for violations of constitutional rights” last October in the U.S. District Court in Tacoma.
The lawsuit, which is now in the discovery stage, named COBI, its police department and Cain – a 21-year veteran of the department – as defendants.
Local attorneys John Muenster (Koenig’s husband and the driver during the 2007 traffic stop) and Dan Mallove were among several attorneys for the appellants (Koenig, Larry Koss and Althea Paulson) in the Supreme Court case involving the cities of Puyallup and Mercer Island.
The appeal case was argued before the State Supreme Court on Nov. 16, 2010, and included an amicus curiae brief involving “friends of the court” – Allied Daily Newspapers of Washington, the Washington Newspaper Publishers Association, The Seattle Times, Tacoma News Tribune, Tri-City Herald and the Center For Justice.
“This is a tremendous victory for Kim and the public’s right to know,” Muenster said Thursday. “It’s a victory for open government and a defeat for the secretive practices of some police departments, including the one on Bainbridge Island.”
Muenster said he wasn’t concerned about the “lead opinion” justices who wanted Cain’s name redacted.
“Either way, it’s a victory for us,” he said, “because Cain’s name has already been out there so it makes no difference.
“What the justices were trying to do was to protect people whose identities aren’t known,” he added. “The simple thing would have been to just release the reports as they are, but those four justices wanted to make a point.”
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” was that Cain had no right to privacy in his public actions because they were committed in a public place (road) and in full view of witnesses. They sought the reversal of the superior court decisions to withhold all records of the criminal investigations of Cain’s alleged actions during Koenig’s arrest.
Law enforcement officials for both Puyallup and 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 COBI – to reporters.
That led the Bainbridge Island Police Guild to seeka 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.
Koenig’s federal lawsuit 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.”
The island incident began when a police officer made a traffic stop during early-morning hours. Muenster was the driver and Koenig 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.Contact Bainbridge Island Review Editor Brian Kelly at firstname.lastname@example.org or 1-206-842-6613.