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.

Of the 85 management action recommendations Myerberg has issued since taking office, SPD has fully or partially agreed to implement 51 and declined 15; the recommendations SPD declined included suggestions that the department clarify its de-escalation guidelines. In several other cases, SPD declined small suggested policy adjustments and instead advocated for the addition of a clause to the department manual that would broadly allow officers to “reasonably deviate” from policy when necessary. All of the recommendations that Myerberg has made since Diaz took over as interim chief are still awaiting decisions from SPD.

In some instances, Myerberg said, he issues recommendations under the assumption that SPD will reject them. That was the case when Myerberg re-issued a recommendation that the department create a policy that addresses how and when officers can initiate “high-risk felony stops,” which involve officers stopping a vehicle and approaching it—often with guns drawn—if they suspect the driver has committed a crime. High-risk felony stops, Myerberg says, are one of the most serious exertions of police authority, but the current SPD policy manual gives officers no guidance on when the stops are appropriate and how officers should approach the stops.

“You could have an out-of-policy use of force that lasts a few seconds, and then you may go your entire career and never get close to an out-of-policy use of force again,” he said. “But if you’re racist or you lie, you’re useless to the Seattle Police Department.” —Office of Police Accountability director Andrew Myerberg

Though SPD declined Myerberg’s first recommendation in 2018, he tried again with a similar but more specific, recommendation in 2020 after a driver alleged that SPD officers pulled him over and drew their guns because of his race. “There’s training for high-risk felony stops, but there’s no policy,” Myerberg said. “We’ve seen a couple shootings that started as high-risk felony stops. So I strongly feel that there should be a policy, and I use new cases to reiterate how important this is.”

Management action recommendations have also been an avenue for the OPA to throw its weight behind widely-supported changes to SPD policy. For instance, in the case of the protester who was hit in the chest by a blast ball, Myerberg recommended that SPD change its blast ball policy to prohibit officers from throwing the weapons overhand, using the weapons “simply because a crowd is not moving as quickly as officers not want,” or throwing the weapons at any crowd that doesn’t pose a “direct threat” to officers.

While not identical to the temporary injunction issued by U.S. District Court Judge Richard Jones in June prohibiting SPD from using any crowd control weapons against peaceful protesters, Myerberg said he issued the order with the injunction in mind. “A temporary injunction is temporary – it’s not permanent,” he said. “I think there are portions of it that should be made permanent, and I advocated for that through the management action recommendation.”

Discipline

But recommending discipline for individual officers remains a central part of the OPA’s role in Seattle’s police accountability structure; after Myerberg’s office concludes an investigation, they meet with representatives from SPD to agree on disciplinary measures. “The discipline we recommend is largely based on the discipline imposed in similar cases,” he said, though he added that they also weigh changes in public perceptions of the department and an officer’s disciplinary history when making recommendations.

Myerberg does periodically recommend that the department fire officers, but he rarely does so for officers who violate use-of-force policies. Instead, Myerberg said that he’s far more likely to recommend termination in cases of dishonesty or bias.

“You could have an out-of-policy use of force that lasts a few seconds, and then you may go your entire career and never get close to an out-of-policy use of force again,” he said. “But if you’re racist or you lie, you’re useless to the Seattle Police Department. You can’t testify, you wind up on the Brady list [lists of officers with records of bias or dishonesty maintained by the City Attorney’s Office and the County Prosecutor], you can’t be trusted. So there’s no way you can continue your employment.” He does, however, think terminations or serious suspensions are merited for the most serious out-of-policy uses of force, as was the case when he recommended that SPD fire two officers who fired at a moving car in Eastlake in 2017, injuring the driver and passenger.

“The OPA should—along with the department and the public—set the standard, not adapt to the old, obviously inadequate ones.”—Former OPA director Sam Pailca

Myerberg also believes there are risks to setting a high disciplinary standard for use-of-force violations. “People do look at use-of-force as a violation of public trust,” he said, “but what I fear is that if we recommend terminating officers for all out-of-policy uses of force, you might end up finding that the chain of command will be less willing to be critical in its analysis of use-of-force.” Because sworn officers serve on SPD’s Force Review Board—the team that has to determine whether serious uses of force violated policy before the OPA can complete an investigation—Myerberg argued that department leadership could find ways to skirt higher disciplinary standards in order to protect officers from being fired.

Myerberg added that the OPA has been slowly increasing penalties for officers, but not at a pace that is noticeable to those outside SPD. “Over time, suspensions have gotten longer,” he said. “Have they gotten 20 days longer? No, but they’re 2 or 3 days longer, which is still significant.” The slow pace of change, Myerberg said, is because his office needs to consider whether a disciplinary recommendation will stand up to scrutiny if an officer appeals their discipline. “It’s difficult to jump up to termination or suspensions if you haven’t done that in the past,” he said, “because if I’m not consistent, the discipline could be overturned on appeal.”

Not all OPA directors have believed that the office should be so constrained by precedent. Sam Pailca, who led the OPA from 2001 to 2007, told PubliCola that the office shouldn’t concern itself with whether a disciplinary recommendation aligns with past discipline. “They should recommend the discipline that they feel is appropriate to the offense, taking into account current department standards and community expectations,” Pailca said. “The OPA should—along with the department and the public—set the standard, not adapt to the old, obviously inadequate ones.”

When an officer wants to appeal a disciplinary ruling against them, they can bring their case before one of two kinds of bodies that review appeals: an arbitrator or a civil service commission. When one of those bodies overturns a disciplinary decision, she added, “that becomes the department’s issue to address—and gives clearer information to the public about where the problem lies.”

Kathryn Olsen, who headed the office from 2007 to 2012, suggested that increasing disciplinary standards is in the hands of SPD, not the OPA. If a police chief informed officers that they would receive a new, harsher level of discipline for certain kinds of misconduct, Olsen said, an arbitrator might be more inclined to side with the department if officers appeal their discipline. “[The arbitrator] might endorse it and say, ‘look, as long as you gave the officers fair warning and a chance to weigh in, you can change things,'” she said, though she cautioned that a top-down strategy isn’t guaranteed to work.

Some accountability advocates outside the OPA sphere think that a more fundamental change is needed to free the OPA and SPD from the burden of past disciplinary decisions. “Given that the OPA… is set up structurally to look backwards—look back at an event and decide if existing training, policy and laws were violated,” said Nancy Talner, a senior staff attorney with the ACLU of Washington, “is that a barrier to making the changes in policing that Seattle needs?”

The opportunity to lift that barrier, Talner added, was tucked into a bill in the state senate sponsored by Senator Jesse Salomon (D-32); among other changes, the bill would have made past disciplinary decisions inadmissible as reasons to reduce or overturn police discipline. The last opportunity for the bill to move out of the committee was on February 15; it did not move forward.

Defining Success

In Myerberg’s estimation, his primary job is to change behavior within SPD. “If I have a choice between a carrot or a stick,” he told PubliCola, “I may sometimes use the stick, but why wouldn’t I want to do the carrot if I can win hearts and minds of an officer and convince them that there’s a better way to do things?”

He’s not alone in believing that a successful OPA director shouldn’t lean on discipline as a default. “If what you want to do is improve the trust of the community and you believe the way to do that is to discipline more officers, more often, and more strictly,” said Olsen, “that strategy isn’t guaranteed to change officer behavior in ways that you want or to improve community trust, which is dependent on so many complex factors outside the discipline system.”

And Myerberg said that, until last year’s protests brought a flood of complaints into the OPA, he was starting to see his strategy bear fruit. “I have been seeing fewer appeals, fewer challenges to discipline,” he said, “and fewer incidences where the union is grandstanding about how the OPA is out to get them.”

Some accountability advocates outside the OPA sphere believe it isn’t the OPA director’s job to prioritize winning the confidence of police officers. “The OPA’s website says that its role is ‘promoting public … trust in the complaint investigation process’ and ‘helping reduce misconduct and enhancing employee conduct’,” Talner said. “That should not mean making findings to inspire trust of the police rather than promoting the trust of the community.”

As the OPA continues to sort through protest-related police misconduct investigations, Seattle’s Office of the Inspector General (OIG) is working on an audit of SPD’s disciplinary process. The audit’s focus is only the disciplinary process that takes place after the OPA sustains an allegation against an officer, said OIG audit supervisor Mary Dory, including how the OPA and SPD decide on a discipline to recommend.

The goal, said Dory, is “to determine if the city’s current disciplinary process for SPD personnel is delivering consistent, transparent and effective accountability.” In the process, she added, the OIG team will look at “cases in the recent past in which there’s clear public sentiment that the discipline didn’t match the public’s expectations.”

Regardless of the outcome, the protest cases have set back the clock for the OPA’s efforts to measure its success. Whether Myerberg’s approach to addressing misconduct and policy failures during the protests has a positive impact on officer behavior may only become clear if the city sees another wave of nightly protests, and building public confidence in the OPA itself is all the more challenging when the office is squarely in the spotlight.

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