UPDATE: Snohomish Co. Judge Dismisses Appeal in Death of Rosie


by Ralph Nichols

Snohomish County Superior Court Judge Richard T. Okrent Friday (March 9) dismissed an appeal to bring criminal charges against the two Des Moines Police officers who killed Rosie the Newfoundland.

Rosie was pursued, shot and killed by the officers on Nov. 7, 2010, as she cowered in blackberry bushes in a back yard after earlier being reported loose on a city street.

Judge Okrent ruled at the end of a one-hour hearing, for which briefs previously had been filed, that the statute of limitations for this case had expired.

But Bellingham animal rights attorney Adam Karp, who filed the petition for misdemeanor animal cruelty charges in January 2011, is not finished pursuing justice for Rosie.

Karp said he will file a civil claim for monetary damages against Des Moines Police Officer Michael Graddon, who fired the shots, and Sgt. Steven Weiland, who ordered her killing.

He may also pursue avenues of appeal that remain open to bring charges against them. But Karp added that he first needs to discuss this with Rosie’s owners, Charles and Deirdre Wright.

Neither Graddon nor Weiland has been named a defendant since Rosie’s death, so they were not parties in today’s hearing.

Arguments for Dismissal
Matthew Kaser, the attorney representing the City of Des Moines in its response to the petition filed by Karp, has consistently argued against the action on two grounds:

That the state law under which it was filed violates the separation of powers doctrine under the Washington State Constitution.

And that Snohomish County District Court, from which the case was appealed, lacked jurisdiction over a matter initially filed in Des Moines Municipal Court.

In this instance, Kaser also maintained that the one-year statute of limitations for discharge of this case, once it was filed, had expired.

Judge Okrent’s Ruling
“This is a very difficult issue for anyone who has seen the video” and heard the audio of the shooting, recorded by a Des Moines Police car dashboard camera, Judge Okrent said following oral arguments.

“I agree with the Des Moines Police Chief [John O’Leary, who earlier said] that this was not the finest hour” for the department.

But under constraints of the law, Judge Okrent continued, “The first question I have to ask myself is does Snohomish County have jurisdiction over this case?”

Citing the Revised Code of Washington and case law, he found that district courts and municipal courts have “concurrent jurisdiction” and, therefore, it was appropriate for Snohomish County District Court Judge Tam T. Bui to have heard the case last year.

Next, he focused on the citizen complaint – the petition filed by Karp on behalf of the Wrights to bring criminal charges against the officers – and whether a judge has the constitutional authority to determine probable cause that a crime was committed and order a prosecution.

“A judge has the authority to determine probable cause and to file a [criminal] complaint,” Judge Okrent concluded. “Judge Bui found none, so a complaint was not filed.”

A makeshift memorial was created on a fence near where Rosie the Newfoundland was shot and killed.

Instead of considering whether to reverse Judge Bui’s decision that no probable cause existed for the filing of a complaint against the officers, Judge Okrent then asked, “Is this case moot?”

“My choice is virtually limited,” he said, noting that “Mr. Wright did not allege and file new facts” with the court within the one-year period.

“Because of that, regardless of how I feel about the constitutionality [of the law permitting a citizen prosecution], the statute of limitations has run out. The case is moot and I will dismiss.”

Case History
Karp filed the petition for a citizen prosecution in Des Moines Municipal Court on behalf of the Wrights, seeking criminal action against the two officers after no legal or disciplinary action was taken against them by the Des Moines Police Department, the City of Des Moines, or the King County Prosecutor’s Office.

It was referred to King County District Court when Municipal Court Judge Veronica Alicea-Galvan recused herself at the outset of the initial hearing in February 2011. All King County District Court judges and then all Pierce County District Court judges also recused themselves from the case before it was transferred to Snohomish County.

It finally came before Judge Bui last June. After an August hearing, followed by the filing of additional briefs by both attorneys, she denied Karp’s motion in September.

Judge Bui determined her court had authority to hear the municipal court case from King County, but declared in a written opinion, “After a careful review, this Court is not satisfied that probable cause exists” to charge the officers.

In Friday’s oral arguments, Kaser restated his contention that the law allowing a judge to order a citizen prosecution is unconstitutional, noting probable cause is the sole province of prosecutors.

Furthermore, there are no grounds that probable cause exists for a possible criminal conviction because the officers were confronting “what they believed was a dangerous dog…. The dog is dead. We can’t bring the dog back. Is criminal prosecution the answer?”

The court, Kaser added, has no choice but to “dismiss this on statute of limitations grounds.”

Arguments for Criminal Charges
Karp countered the statute of limitations argument made by Kaser because the case was moved from one venue to another and then to another before ending up in Snohomish County District Court.

This, he emphasized later, was beyond his control took much of the time legally allowed.

Then, in addition to the time Judge Bui had the case before her, Judge Okrent continued it to this month for oral arguments after initially upholding Karp’s appeal on Dec. 15.

Turning to the change of venue in his closing statement, Karp said moving the case from Des Moines was necessary because “the King County Prosecutors Office did not review the information that Judge Bui ruled on.”

And, Karp alleged, “The city is biased and was trying to protect its own, which is why there was the need for an independent judge.”

Probable cause is evident here, he also told Judge Okrent, and for the police officers “to say [Rosie was] a danger is misleading and self-serving … she clearly wasn’t a threat after they shot her the first time” – before firing three more times.

“The show of probable cause is definitely met by the evidence” and there is nothing wrong with allowing the rule to bring a citizen complaint in this case.

“We initiated a criminal action just by appearing before a judge”, Karp said. “That is all that was required. If this court reverses and remands [the case to Judge Bui] or moves the case forward, it is within the statute.”


Comments

35 Responses to “UPDATE: Snohomish Co. Judge Dismisses Appeal in Death of Rosie”
  1. donna says:

    Don’t think this will be the last word on this. 😀

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  2. Southland LE says:

    At least the Judge admitted the video was telling…

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  3. chris says:

    If the judge really payed attention to the video and really listened to everything. he would of not dismissed the appeal, This is not over!

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  4. Linda says:

    I hope Adam Karp certaintly does pursue furthur appeal options. Looking forward to reading more on this Waterland Blog.

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  5. Denise LaChance says:

    “The dog is dead. We can’t bring the dog back. Is criminal prosecution the answer.” (Kaser, the attorney representing Des Moines) If we followed the logic of this argument we would never charge any murder suspect ever.

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  6. flashdog says:

    God bless Adam Karp!

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  7. Holly Allison VH says:

    Prosecute. there is no “rational” excuse for this abhorant (sp) behavior on the part of our trusted servants. Prosecute as a voice speaking out against animal abuse. Newfies are notoriously gentle creatures. Cowering in the bushes is not a dog that will do you , armned and dangerous officer, any harm. Shame. Prosecute as a means of making a statement ” This will not be tolerated , ever. Never again”. Nauseating. I can’t trust the police. A flashback to the 60’s and 70’s when women were raped simply because they wore love beads.

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  8. Art says:

    The judge doesn’t want to throw her boys in blue under the bus.

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    • Coverofnight says:

      You’re right on with that observation…………to he!! with cops, lawyers, judges and politicians; they all think that their s**t don’t stink!

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      • donna says:

        The “little peeps” don’t matter until or unless we band together. We are not going to give up!

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  9. Art says:

    correction, “his”.

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  10. DM Resident says:

    How many times can the justice system provide a rational, well thought out response and dismiss this thing before you will all realize that maybe you are all wrong and the officers weren’t??? The 10 of you that care about this think you are the only smart people in the world with the correct view of this situation. I hear the occupy movement calling you all back to your tents!!!!

    Thank you again to the justice system for doing the right thing.

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    • LE Southland says:

      DM, I am speaking from my experience as a 20 year vet in Law Enforcment officer (by they way most of my peers agree with me) I am saying here that the officers were wrong… Nobody is second guessing, the whole event was uncalled for and is animal abuse. The officers involved should be held accountable and shame on the command staff for not doing the job. Shame on the courts for playing this like a ping pong ball. No decent officer likes putting down animals but this was an atrocity. I want to vomit every time I think of the officers high fiving and verbalizing “Nice” after the kill shot. Hope they relive it in thier minds the rest of their lives. Just plain disgusting – Hope the owners of the dog get some justice on this one. The video of the immature officers was sent to a National Police training conference just to show how out of control officers are a liability to all of us..

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      • DM Resident says:

        Although I’m not a law enforcement officer, I do know a few (not from Des Moines) and they do not share your feelings on this. Most I have spoken with that have taken any time to familiarize themselves with this situation seem to understand how this is simply one of those unfortunate situations any officer can get into.

        You stating you are speaking for “most” of your peers certainly makes me question your credibility and I’d be curious to know what your fellow officers think of you???

        I do agree that if the officers involved in this “high fived” and when one of them said “nice” that is inappropriate. I think the report of high fiving has not been proven and I’d bet the officer who said nice has been appropriately disciplined. Do you think he should be fired for the “nice” comment?

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        • Art says:

          “DM Resident” talking about credibility? Someone please confirm that I am really reading this.

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        • donna says:

          It’s about your credibility, DM Resident. You stated it yourself. You are not a LEO so you have none in light of your statement.

          It’s not just the high-fiving and responding with “nice” that are inappropriate. Murdering someone’s pet–shooting a non-aggressive Newfoundland dog, Rosie, four times with an assault weapon after tasing her numerous times on her own property is at the crux of this tragedy. She was trapped in a neighbor’s backyard and had nowhere else to go. Rosie was frightened and in shock.

          To my knowledge, not one of those four officers has even as much as apologized to the owners. Yes, there should be

          Over 7,000 people have signed a petition supporting “Justice for Rosie.” There would be more but the petition site reached its goal in signatures. I am assuming you don’t have that large of a following.

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          • donna says:

            ….pink slips issued to these officers. People have been fired for a lot less.

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          • DM Resident says:

            First, I’ve never claimed to have any credibility or any insight that everyone else doesn’t.

            Second, it’s a laugh when you talk about 7000 people from around the world signing the petition, I guess that can only mean the other 6 billion people in the world are on the side of the officers or simply don’t care?

            You people are simply making this entire thing laughable. The handfull of you complaining about this seem to think you have the only correct views on this issue. Maybe, just maybe, the cops, the police department, prosecutors, and judges are right in their handling of this case. The problem is that none of you will open your eyes enough in an attempt to understand the other side of this issue. I have reviewed all the videos and reports and reached a conclusion that I generally support the officers. I don’t particularly care about some of their specific actions during the incident but I understand how they reached their decisions and what their concerns were that led to the final conclusion of this incident.

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          • donna says:

            We’re a good group of people who are empathetic to the cause. I would choose being empathetic over apathetic any time in this world, because leaving our world affairs to people like you makes us look like we haven’t evolved at all!

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          • donna says:

            Further, because you obviously didn’t read into my post deep enough, the petition was closed because the goal had been reached. There could have been millions who were interested in signing the petition.

            I sure hope you read the additional K9 handler’s post. You need to quit blocking the truth. NOT ONE LE officer would agree with what these four officers did in Des Moines. The above officers DO have credibility!

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        • Andrew says:

          It’s funny how frequently police officers of all states in this country end up in these “unfortunate situations” where they seem to have killed something for no reasons other than their own amusement or pure spite. While I can’t find fault with the decision of the judge, I very easily can with your logic.
          You refer to these “unfortunate situations” as if these officers, once having already gone through the trouble of going to the slain animal’s owners property, were obliged to go ahead and kill something. What purpose did the murder of this animal serve? It, even according to the officers on scene was not posing any threat, but hey, we’ve got these new guns, might as well shoot something while we’re here, right?
          Everyone questioned about this matter admitted openly the officers involved acted inappropriately, to say the very least. These officers created this “unfortunate situation” for themselves by cruelly killing a non-threatening living being for sport. If you want to continue supporting an obviously flawed justice system, then by all means, go ahead. Just don’t complain where it’s your pet or a member of your family that is the victim of the next “unfortunate situation”.

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          • Sarah says:

            I do find fault with the judge’s ruling. The judge could have heard this case in December, before the statute of limitations ran out. But the judge chose to “continue”–which is just legalese for putting off a decision–until the statute of limitations ran out. The the judge used the statute of limitations as an excuse to dismiss the case.

            Something is very wrong when so many judges are afraid to go against the local police departments. ALL of these judges need to be removed from office.

            I looked up who was funding the King county prosecuter after he “found” no reason for charging the officers. He gets big bucks from the police union.

            The US has the most privately controlled campaign finance system in the world, and it is allowing us to slip into a very bad state of affairs where the people with money can do whatever they want.

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        • LE Southland says:

          I am a former K9 handler as well. I doubt you will get officers who live around there to feel comfortable disagreeing with thier peers in that area. All I know is the many contacts I have in LE and my ongoing relationships in training and professional involvement I have not had one officer agree with what these officers did. NOT ONE. I don’t expect a civilian to understand the dynamics of a police culture but if these officers were under my command I would be concerned. Especially the supervisor who allowed the killshot officer to control him. Officers have relatives in adjoining jurisdictions and the brotherhood does not want to break rank. An LE attorney also stated that this is very disturbing. Police politics are at play as well. Enough said.

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    • Ron White says:

      “can’t fix stupid”

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    • Down on Des Moines says:

      I don’t live in a tent but do live next door to you in lovely Normandy Park. Our cops are smart and compasionate and would have dealt with the situation without firing their weapons on a dog that was hiding in bushes!. Glad you’re so happy with your cops there in Des Moines. Oh please please call them soon with an emergency. Let’s just hope they don’t have an “accident” and shoot you by mistake!

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  11. didi says:

    Shameful just shameful!! That’s all I can really say. Those jack asses got away with it. Anyone that can hurt or a kill and innocent animal is a sorry excuse for a human being. Graddon, Weiland and Arrico will get theres in the end! Ever heard of karma!

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  12. Jen says:

    Animals still have liittle value in the courts, this is wrong, this dog and most imporantly citizens of DM have LOST faith in this whole situation. Many officers are caring animal people- WHY this happened this way to this dog on this day we cannot comprehend.

    If the officers involved had just appologized and came out to say we took this too far NONE of this time would have been spent in the courts and our town that is already a mess from other issues would not be divided between animal people and everyone else.

    There are many homeowners in DM that are BIG dog/pet people, we pay our taxes, we pick up our poop and for sure WE AVOID SPENDING MONEY AND TIME IN DES MOINES SINCE THIS AND THE MAYORS STRONG WORDS LAST YEAR ABOUT UNLEASHED DOGS.

    Des Moines, stop telling us pet/home owners of your town that we are not welcome or cared for here!
    Very diaappointed in the poor handling of this case! ready to leave this town….se no value here.

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    • Jen says:

      Des Moines is one cold hearted town!

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    • Sarah says:

      Make sure you kick your mayor and city counsel members out on their butts! Also, the county prosecutor and the judges all need to lose their next elections.

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    • didi says:

      Move to Normandy Park. Way better community for dog owners. WE have The
      Cove and numerous other dog friendly parks. The cops are cool here as well!

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  13. Jen says:

    Because Rosie is a dog this case never had a chance…..biased biased biased! pets don’t matter, let change that!

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  14. Jen says:

    FYI- I will no longer spend ANY of my money in ANY Des Moines business! were done!

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