Tag: Andrew Myerberg

Courts, criminal justice, Police

Investigations into Police Conduct at Protests Provides Window into Office of Police Accountability
Protest at 11th Avenue and Pine Street on Capitol Hill in June 2020 (Creative Commons)

By Paul Kiefer

Seattle’s Office of Police Accountability (OPA) is less than halfway through the 142 investigations it launched into the Seattle Police Department’s response to last summer’s protests—the result of nearly 20,000 individual complaints. Since September, the office has closed 55 of those investigations.

Relatively few of the investigations resulted in the OPA finding an officer guilty of misconduct significant enough to merit discipline: The office only ruled that officers seriously violated department policy in 12 cases. Some involved well-publicized incidents. For example, the OPA ruled that an SPD officer breached department policy when he threw a tear gas canister at an NBC news crew in Cal Anderson Park on June 1, hitting correspondent Jo Ling Kent in the arm. Of the 12 officers involved in those incidents, SPD has issued written or oral reprimands to six, including the officer who threw the tear gas canister at the news crew. The other six officers await a disciplinary decision from Interim Police Chief Adrian Diaz.

But the OPA isn’t limited to deciding whether or not an officer needs discipline. The office’s rulings on protest-related misconduct allegations have been a window into the OPA’s toolkit—and into the strategic thinking of its director, Andrew Myerberg.

Training Referrals

In about 20 percent of protest cases, Myerberg recommended “training referrals” instead of discipline. A training referral directs SPD to re-train an officer on the specific policy or practice they violated; the OPA typically issues the referrals to first-time offenders.

In one case, an officer received a training referral for having his body-worn video camera off when he fired a pepper ball at a reporter reaching into her bag at a protest on Capitol Hill; after watching the bodycam footage from a nearby officer, the OPA concluded that SPD couldn’t hear the reporter identify herself as press, and believed she was reaching into her bag for something to throw at him. Another officer was referred to training after insinuating that he would ticket a bicyclist who questioned why SPD officers were using a Seattle Public Schools property as a staging ground.

La Rond Baker and Erin Goodman, the co-chairs of Seattle’s Community Police Commission—one of the OPA’s counterparts in the city’s police accountability system—said it was unclear that training referrals are having their intended effect. “We believe there needs to be a critical conversation both about the effectiveness of these trainings, and the negative effects limited disciplinary sanctions might have on the culture of the Seattle Police Department and public trust in Seattle’s accountability system,” they told PubliCola in a joint statement.

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Myerberg says that the OPA hasn’t collected data about how well the training referrals work—for example, by tracking whether officers who go through mandatory training break the rules again—because of staffing restraints. “We have anecdotally looked at behavior changes,” he said, adding that his office hasn’t seen any noticeable patterns of repeat offenses.  Nevertheless, the OPA hasn’t formally reviewed the recidivism rates of officers who receive training referrals.

He also argues that issuing training referrals for first-time offenses that aren’t serious uses of force, bias incidents or dishonesty is a matter of fairness. Recommending more serious consequences for those first-time offenses wouldn’t be appropriate, Myerberg said, because “there’s no other employer that would hold their employees to that high a standard,” particularly given the unusual pressures of officers’ jobs—though, as police accountability advocates pointed out routinely over the past year, no other employer gives its employees the right to detain or kill. He added that issuing training referrals is an opportunity to push SPD supervisors to take a more active role in correcting officers’ behavior and department culture.

 

Management Action Recommendations

In some cases—like that of the British journalist who SPD officers arrested at Cal Anderson park last July—the OPA ruled that officers acted in line with department policy, but that their actions pointed to flaws in policy or training (rather than in the officers’ judgment). When those situations arise, Myerberg can issue a “management action recommendation” to suggest changes to the department’s policy manual and training curriculum.

Since September, Myerberg has issued eight of those recommendations. Those include a recommendation that SPD train its officers to make fewer misdemeanor arrests at protests to avoid escalating tensions, and that the agency screen its social media posts for accuracy. Current SPD policy only requires the department to screen tweets about shootings by officers and other incidents in which police kill or seriously injure people. Continue reading “Investigations into Police Conduct at Protests Provides Window into Office of Police Accountability” →

legislature, Police

State Proposal Creating Community Oversight Boards for Police Could Have Unintended Consequences

By Paul Kiefer

A bill that would create a framework for civilian oversight of law enforcement agencies across Washington state is making its way toward a vote on the floor of the state house, but police accountability experts say that the bill needs refinement to avoid unintended consequences.

The bill, sponsored by Rep. Jesse Johnson (D-30), would require every jurisdiction statewide that employs 15 or more law enforcement officers to create a “community oversight board” to receive and investigate civilian complaints about police misconduct. It also sets some rules for board membership, barring people who work for or have close ties to law enforcement and reserving seats on each board for community members.

Unlike most cities in Washington, Seattle already has a trio of police oversight bodies: the Office of Police Accountability (OPA), which investigates individual cases of misconduct; the Office of the Inspector General (OIG), which reviews Seattle Police Department policy and tactics and issues recommendations; and the Community Police Commission (CPC), which mostly plays an advisory role for SPD. In its current form, the bill would allow Seattle to keep all three bodies, but with some significant changes, including requiring the OPA to rebuild an all-civilian investigation team and potentially move outside of SPD, limiting its access to department records.

When the House Public Safety Committee fielded comments on the bill on January 26, OPA director Andrew Myerberg told the committee that he could not fully support the proposal. In its original form, the bill didn’t create a clear exception for accountability agencies like the OPA. “I do agree with the bill insofar that I believe civilians can do the work of police accountability and do it well,” Myerberg said, but he worried that the framework for community oversight outlined in the bill would require jurisdictions like Seattle to dismantle their existing civilian oversight structures and replace them with a single board tasked with both misconduct investigations and policy advising.

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After the first round of testimony, Johnson worked with representatives from Seattle and Spokane, which also has an existing police oversight agency, to amend the bill with concerns like Myerberg’s in mind. The most notable adjustment was the inclusion of a clause allowing jurisdictions with “multiple similar oversight bodies” to retain those agencies if they comply with the rest of the bill’s contents. One of the goals of the changes, Johnson told PubliCola, “is to preserve the functions of the OPA as long as the membership rules for community oversight boards are implemented within the OPA.”

To do so, Johnson said, the OPA would need an all-civilian investigative team by January 2023. Currently, nine of the OPA’s 11 investigators are sworn police officers—a consequence of Seattle’s contract with the Seattle Police Officers Guild, which limits the number of civilian investigators. If passed, the bill would supersede Seattle’s agreements with its police unions. The bill would also require the OPA to reserve some of its civilian staff positions for people representing impacted communities. Continue reading “State Proposal Creating Community Oversight Boards for Police Could Have Unintended Consequences” →

Police

SPD Confirms That At Least Five Officers Were In DC During Capitol Attack

By Paul Kiefer

On Wednesday afternoon, the Seattle Police Department confirmed that at least five of its officers were present at the rally held by former President Donald Trump in Washington, D.C. on January 6th that preceded the hours-long attack on the U.S. Capitol by Trump’s supporters. More than a week after an SPD officer reported two of his colleagues to his superiors for a Facebook photo of the pair at the rally, three more officers notified the department that they, too, had attended the event.

Office of Police Accountability Director Andrew Myerberg broke the news during a meeting of Seattle’s Community Police Commission (CPC) on Wednesday morning. At the time, only two new officers had stepped forward; they were joined by one more officer later that afternoon, which Interim SPD Chief Adrian Diaz acknowledged on the department’s blog. In his comments to the CPC, however, Myerberg said he “anticipate[s] that there may be more.”

Myerberg said his office is investigating whether any of the five officers took part in the attack on the US Capitol; Diaz promised to fire any officers involved in the insurrection. During the CPC meeting, Myerberg added that the OPA will also try to discern whether the five officers had ties to any militias or white supremacist groups. “In my mind, membership in an [extremist] group would be a disqualifying factor for employment with the Seattle Police Department,” he said, “but that’s going to be the chief’s call.”

However, Myerberg also noted that his office hasn’t been able to interview any of the officers yet. The OPA’s manual requires its investigators to give officers accused of misconduct two notices before conducting interviews: one when the office first begins their investigation and another after investigators complete a preliminary review of the evidence in the case. The OPA has to provide the second notice within 30 days of opening an investigation; Myerberg told the CPC that his office will likely need that time to sift through footage and photographs, so he estimates that his investigators will start interviewing the officers in a month.

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Being fully independent means that we cover the stories we consider most interesting and newsworthy, based on our own news judgment and feedback from readers about what matters to them, not what advertisers or corporate funders want us to write about. It also means that we need your support. So if you get something out of this site, consider giving something back by kicking in a few dollars a month, or making a one-time contribution, to help us keep doing this work. If you prefer to Venmo or write a check, our Support page includes information about those options. Thank you for your ongoing readership and support.

The two officers whom the OPA began investigating on January 8 are currently suspended with pay. In his blog post, Diaz noted that the three new officers under OPA investigation are still on duty. “The difference is that they self-reported,” said Myerberg. “When they did that, they affirmatively stated that they weren’t involved in any illegal activities. The first two didn’t provide that kind of statement.”

If the OPA investigations find the three officers were involved in the attack, Myerberg noted that in addition to being fired, the officers would also lose their certification to work as law enforcement officers in Washington for lying to the department.

However, Myerberg emphasized to the CPC that his office can’t treat the officers’ presence at the January 6 rally as evidence of misconduct in and of itself. “If you just have a firmly held belief that the election was stolen and you want to go yell on the mall,” he told the commissioners, “you’re allowed to do that.”

During and after Myerberg’s presentation, some commissioners shared their belief that department should not treat its officers’ presence at a rally alongside hundreds of avowed white supremacists as a benign act of free expression. “I don’t understand how we can derive any other decision other than they were there to spur what those people did to storm the Capitol,” said CPC Executive Director Brandy Grant, adding that the department’s efforts to respect the free speech rights of the five officers stood in sharp contrast to its response to SPD’s response to last summer’s protests.

CPC Commissioner and SPD Officer Mark Mullens, typically one of the commission’s quieter members, also spoke up during Wednesday’s meeting. “I would ask that the OPA keep in mind the African-American officers,” Mullens, who is Black, said. “We have to guard ourselves from people who mean to harm us, meaning white supremacists. It’s unsettling to think that there’s a possibility that there might be some behind you—someone who is supposed to be backing you up—that’s involved in” white supremacist groups.

Later in the meeting, Mullens shared that MAGA hats have become a regular sight in at least one of SPD’s precincts. “Your political views are your business,” he said. “And whether you’re racist or not is still to be found out. But when you’re wearing that [hat], you’re not taking into consideration Black officers and other officers who might be triggered by that… [and] there’s also the question of the community’s trust.”

City Council, City Hall, Mayor Durkan, Police, public safety

Proposal Would Grant Full Subpoena Power to Seattle Police Accountability Bodies

By Paul Kiefer

On Thursday morning, Seattle Mayor Jenny Durkan and city council member Lisa Herbold announced a new proposal to explicitly grant subpoena power to the Office of Police Accountability (OPA) and the Office of the Inspector General (OIG). Subpoena power would allow the two police accountability bodies to compel testimony from people who were involved in, or who witnessed, police misconduct but refused to testify. It would also allow the two offices to compel witnesses to hand over records and other evidence in police misconduct cases. If witnesses refused to testify or provide evidence, the proposed law would allow the OPA and OIG to turn to the City Attorney’s Office to obtain a court order enforcing the subpoena.

If passed, the legislation would fulfill a three-year-old promise to expand the powers of the OPA and OIG. The city’s 2017 police accountability ordinance explicitly granted the OIG and the OPA the authority to issue subpoenas during investigations if a witness refused to cooperate, but those powers were placed on the bargaining table during the 2018 contract negotiations with the Seattle Police Officers’ Guild (SPOG).

During that process, which largely neutralized the 2017 ordinance, the city’s negotiating team agreed not to implement those elements of the accountability ordinance. Although the contract allowed the city to unilaterally bring SPOG back to the bargaining table to negotiate the OPA and OIG’s right to issue subpoenas, the negotiating team has not revisited the issue.

As a result, although SPD officers have been required to comply with OPA and OIG investigations for the past three years, the two offices have had no legal recourse if a witness decided not to testify. Neither office has needed to issue a subpoena to obtain testimony or evidence from an SPD officer, so the ordinance would be a proactive measure.

In a press release accompanying the announcement, Durkan said the proposal would “set the City on better footing to pursue stronger accountability measures in our collective bargaining agenda for the next round of negotiations with SPOG,” which expires at the end of the month.

Herbold’s public safety council committee will take up the legislation on December 8.

Mayor Durkan, Police, Privacy, public safety, Tech

ACLU Calls on Durkan to Ban Facial Recognition Software After Possible SPD Violation
Clearview AI Software Logo (Source: Creative Commons)

By Paul Kiefer

In early November, a blogger’s public records request turned up evidence that a Seattle Police Officer has used a widely-criticized facial recognition software called Clearview AI for over a year, possibly violating Seattle Police Department policy and raising questions from privacy advocates about the use of prohibited surveillance technology within SPD.

On Wednesday, the ACLU of Washington responded to the revelation by calling for Mayor Jenny Durkan to issue a specific ban on the use of facial recognition software by city agencies, as well as for a city council hearing to question SPD representatives about their use of surveillance tools.

As PubliCola first reported in November, the ACLU first sounded the alarm after the department released roughly 200 emails containing references to Clearview AI, a search engine for faces that enables law enforcement agencies to identify unknown people—protest participants, for example—by matching their photos to online images, allowing police to arrest or interrogate them.

Clearview AI has been the subject of harsh condemnation from privacy and police accountability advocates since it first drew national attention last year. The company’s business model relies on scraping billions of images from across the internet without permission; as a result, Clearview AI’s database of faces includes untold numbers of people with no criminal background whatsoever.

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If you’re reading this, we know you’re someone who appreciates deeply sourced breaking news, features, and analysis—along with guest columns from local opinion leaders, ongoing coverage of the kind of stories that get short shrift in mainstream media, and informed, incisive opinion writing about issues that matter. Earlier this month, we took a look back at just some of the work we’ve been able to do thanks to generous contributions from our readers, but those pieces represent just a handful of the hundreds of stories we’ve published this year.

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Being fully independent means that we cover the stories we consider most interesting and newsworthy, based on our own news judgment and feedback from readers about what matters to them, not what advertisers or corporate funders want us to write about. It also means that we need your support. So if you get something out of this site, consider giving something back by kicking in a few dollars a month, or making a one-time contribution, to help us keep doing this work. If you prefer to Venmo or write a check, our Support page includes information about those options. Thank you for your ongoing readership and support.

Most of the emails SPD released were promotional offers sent from Clearview AI to SPD officers of all ranks, including former Police Chief Carmen Best. But one officer—Detective Nicholas Kartes of the South Precinct’s burglary unit—accepted the company’s offer, opening an account with his work email in September 2019. In the past year, Kartes corresponded with a Clearview AI representative about his experiences “experimenting” with the application, and login alerts sent to Kartes’ work email indicated that the account was used on at least two desktop computers. Both computers’ IP addresses place them in Seattle city government buildings, and one IP address belongs to a secure city network.

The revelation was alarming enough to prompt Office of Police Accountability Director Andrew Myerberg to launch an investigation into Kartes’ use of Clearview AI. However, Myerberg told PubliCola in November that merely opening an account with Clearview AI might not constitute a policy violation, though using the account for law enforcement purposes would be a clear violation of department policy. He added that there is no precedent for that kind of misconduct.

But the city council’s 2018 surveillance ordinance that restricts SPD’s use of surveillance technologies might not cover Kartes’ use of an unapproved software. Mary Dory, a public safety auditor working with the Office of the Inspector General on the case, told PubliCola in November that the ordinance was designed to address the use of surveillance technologies by SPD itself, not the behavior of an individual officer using surveillance software without the department’s knowledge.

That dilemma is now at the center of the ACLU’s disagreement with Interim Police Chief Adrian Diaz. Jennifer Lee, the manager of the ACLU of Washington’s Technology and Liberty Project, told PubliCola that her organization sees Kartes’ use of Clearview AI as a violation of the surveillance ordinance, and believes that SPD is liable for Kartes’ infractions. She cited Kartes’ use of his work email—and, possibly, his work computer—as evidence that the detective opened a Clearview AI account for law enforcement purposes.

Lee says that the ACLU of Washington is calling for Durkan to issue a targeted ban on facial recognition technology. “We have a surveillance ordinance which is supposed to prevent exactly what happened: SPD secretly using a surveillance technology,” she told PubliCola. “But it’s clear that without an explicit prohibition on facial recognition use, there are risks that remain.”

A press release from the ACLU sent out on Wednesday morning also called for council members Lisa Herbold and Alex Pedersen, the chairs of the council’s public safety and transportation and public utilities committees, respectively, to hold a public hearing to “get answers from SPD about its use of Clearview AI and other surveillance tools.”

In a response sent to the ACLU of Washington on Wednesday afternoon, Diaz categorically denied that SPD has sanctioned the use of Clearview AI by its officers. “We have no intention or interest in pursuing a partnership with Clearview AI or acquiring the use of any facial recognition technology,” he wrote. He also challenged the ACLU’s assertion—included in their press release—that multiple SPD detectives have used Clearview AI since September, pointing out that the emails only clearly point to Kartes’ use of the technology. (In November, Lee told PubliCola that the login alerts from multiple desktop computers point to the possibility of multiple detectives using Kartes’ account).

Diaz also made a passing reference connecting the Clearview AI promotional emails to a possible phishing attempt involving city of Seattle email addresses; PubliCola has reached out for clarification.

Because Diaz’s response dismisses the ACLU’s assertion that the department is liable for Kartes’ conduct, the ACLU’s call for Durkan to issue a specific ban on facial recognition software is effectively dead in the water.

Morning Fizz

Morning Fizz: As the City Debates Police Accountability and Homelessness, Brutality Allegations and Encampments Proliferate
Seattle Police Department officers and other members if the Navigation Team watch as a person experiencing homelessness gathers their possessions during an encampment removal at the Ballard Commons earlier this year.

1. Last Wednesday, acting Seattle Police Chief Adrian Diaz announced a new partnership between his department and the Los Angeles-based Center for Policing Equity (CPE), which specializes in producing “analyses to identify and reduce the causes of racial disparities in policing.”

In a press release, Diaz said the CPE will spend the next several months studying SPD’s “functions, training, policies, accountability measures and impacts on communities of color”; the researchers will then “convert” their findings into “strategies to ensure [that] SPD eradicates public safety inequities moving forward.”

In her September executive order launching an assessment of SPD’s functions and possible areas for civilianization, Mayor Jenny Durkan also included the CPE as a source of “subject matter expertise” alongside the city’s own accountability partners, including the Office of the Inspector General (OIG) and the Community Policing Commission (CPC).

This is not the CPE’s first time in town. In 2015, after the CPC asked SPD to review its crowd control policies in the wake of that year’s Black Lives Matter protests, then-police chief Kathleen O’Toole included the CPE on a panel of experts tasked with reviewing the department’s crowd control tactics and presenting recommendations for improvement. The CPE did not release its 23-page report until 2017, and the panel never presented their recommendations publicly. The CPE’s recommendations were generally unremarkable: for instance, the analysts suggested that “SPD should further pursue explanations of the elevated severe use of force during demonstrations.” 

Diaz’ announcement gave no indication that the new CPE study will be any more transformative than its last one, not least because he did not name any accountability mechanism attached to the analysts’ recommendations (some accountability mechanism may exist, but a CPE representative didn’t respond to a request for comment on that front). 

Moreover, the scope of work that Diaz described suggests that the CPE’s study could easily overlap with the work of the city’s existing accountability bodies, including the Office of the Inspector General and the Office of Police Accountability. Inspector General Lisa Judge, whose office is currently working on a sentinel review of SPD’s protest response, told PubliCola that the CPE analysts should “engage with the current accountability structure and assess whether they’re actually doing anything different and whether there is value added.” There could be room for the analysts to collaborate with her office, she added, so long as they respect “the ongoing work of accountability partners.”

2. As the city council and Mayor Jenny Durkan continue debating what will will replace the Navigation Team, which Durkan formally dismantled in September, encampments have continued to proliferate around the city. Although one could argue that encampments are merely a symptom of a longstanding crisis Seattle has failed to adequately address, the city’s decision to temporarily stop sweeping people aggressively from place to place during the pandemic has exacerbated the visibility of the crisis. 

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Prior to COVID, the Navigation Team was conducting hundreds of encampment removals a year. Post-COVID, they dramatically scaled back this work, doing sweeps only at encampments that were the source of large numbers of complaints or that presented significant public safety issues, like the large encampment that was recently removed from a cracking, partially demolished pedestrian bridge downtown.

A large encampment at the Ballard Commons, across the street from the Ballard public library, was removed in May after neighborhood residents and community groups complained that it made the park feel dirty and unsafe. Like all sweeps, this one redistributed, but didn’t visibly reduce, the number of people living unsheltered in the neighborhood. Since then, not only has the Commons been thoroughly repopulated by unsheltered people, the people who were ordered to leave in May seem to have simply moved a few blocks away, a predictable outcome whenever encampments are swept. Continue reading “Morning Fizz: As the City Debates Police Accountability and Homelessness, Brutality Allegations and Encampments Proliferate” →