Tag: Andrew Myerberg

Fatal SPD Shooting Highlights Debate About Responses to Armed Mental Health Crises

Seattle Police Officer Raises His Weapon Toward Derek Hayden on February 16, 2021.

Editor’s note: This article contains references to suicide and police violence.

By Paul Kiefer

At around 9:20 PM on February 16, Derek J. Hayden approached a Port of Seattle Police cruiser parked on Seattle’s waterfront. Holding a kitchen knife to his throat, Hayden told the pair of Port Police officers that he wanted to die.

The two Port Police officers called for backup. Within minutes, Seattle Police Department officers began searching for officers who could respond to the scene, specifically asking for any officers carrying a weapon known as a “40-millimeter” launcher that fires a large, foam-tipped projectile. Meanwhile, the Port Police officers followed Hayden on foot as he walked north and began cutting himself.

Though the Port Police officers carried their own 40-millimeter launcher—the department equips every squad car with the weapon—the officers later told SPD that their attempt to use the weapon to disarm Hayden “failed,” though neither the officers nor spokespeople for the Port Police provided additional details about the failure.

Derek Hayden’s death followed a familiar pattern: Police respond to a call about a person carrying a weapon during a mental health crisis, and after a short confrontation, the officers shoot and kill the person in crisis.

By about 9:23, a pair of SPD patrol officers arrived on the waterfront, stopping their car less than a half-block in front of Hayden. As the pair stepped out of their car, footage from one of the officers’ body-worn video cameras shows a group of officers who were already at the scene—including the Port Police officers, though the identities of the officers alongside them are unclear—following Hayden at a distance. Aside from the officers and Hayden, the sidewalk was empty—the nearest bystanders were inside a restaurant down the block.

Neither of the SPD officers were carrying a 40-millimeter launcher, though one carried an assault rifle—a weapon SPD officers often carry when responding to calls about an armed person in crisis. One of the SPD officers stood on the opposite side of the car, ordering Hayden to drop the knife. The officer with the assault rifle stepped out of the car on the side facing Hayden.

“You need to stop,” yelled the officer with the assault rifle. Hayden raised his arms and walked towards the officer, responding, “just do it!” The officer walked backwards, shouting at Hayden to drop to the ground. “Do it,” Hayden repeated. “Please kill me.” As Hayden came closer, the officer backed up slightly, then fired at least three rounds. Hayden collapsed in the street as other officers rushed towards him. He died at the scene.

Derek Hayden’s death followed a familiar pattern: Police respond to a call about a person carrying a weapon during a mental health crisis, and after a short confrontation, the officers shoot and kill the person in crisis. SPD officers shot and killed Terry Caver, a 57-year-old man suffering an apparent schizophrenic episode while carrying a knife in Lower Queen Anne on May 19, 2020.

Two months later, police in Bothell shot and killed 25-year-old Juan Rene Hummel during another apparent mental health crisis; like Caver and Hayden, Hummel was carrying a knife. At least one-third of all people killed by police in Washington since 2015 were experiencing some kind of mental health crisis at the time of their death.

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SPD, like police departments around the state, is gradually beginning to delegate some mental health crisis responses to mental health professionals.  But mental health crisis calls involving a person carrying a weapon are still a sticking point in the debate about which duties should be shifted police officers to mental health specialists. When SPD officers shot and killed Derek Hayden on February 16, mental health care advocates, police oversight leadership and state legislators were already leading efforts to shape a new approach to armed mental health crisis response.

Andrew Myerberg, the director of Seattle’s Office of Police Accountability—the civilian-led agency within SPD that conducts investigations into allegations of police misconduct—arrived on the waterfront later that night. Though the details of Hayden’s death were still hazy, Myerberg saw enough reasons for concern to launch an investigation into the shooting.

“The core of the investigation,” Myerberg said, “is whether the officers followed the department’s de-escalation policies.” Those policies emphasize that, when “safe and feasible,” officers should make an effort to buy time in tense situations by placing space and barriers between themselves and a person in crisis, and that officers should enter potentially volatile situations with some de-escalation plan in mind.

Myerberg noted that the tactics used by the other group of officers at the scene—following Hayden at a distance, for instance—may provide a vital point of comparison in the OPA’s investigation. “We’ll be asking whether the officers who stepped out of the car checked with the officers who were already on the scene about possible plans,” he said. However, Myerberg added that the Port Police officers’ unsuccessful attempts to disarm Hayden wouldn’t absolve the SPD officers from their responsibility to de-escalate when feasible. “Every officer involved has an obligation to try to de-escalate,” he said. Continue reading “Fatal SPD Shooting Highlights Debate About Responses to Armed Mental Health Crises”

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”

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”

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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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.”

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.

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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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: 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”

OPA Releases First Findings from SPD Protest Response Complaints

SPD officer seen placing his knee on a demonstrator’s neck on May 30 (Screenshot from video by Matt McKnight, Crosscut)

By Paul Kiefer

On Friday morning, the Office of Police Accountability (OPA) released the first set of five completed investigations into alleged misconduct by Seattle Police Department officers during the protests that followed the murder of George Floyd in May. These investigations amount to only a tiny fraction of the OPA’s remaining protest-related caseload. The office consolidated more than 30,000 complaints it has received about SPD’s response to demonstrations into more than 100 separate investigations.

The documents released Friday included two investigations stemming from high-profile incidents during the first days of the protests: One in which an officer was accused of kneeling on two demonstrators’ necks during an arrest downtown on the night of May 30; and a widely-publicized incident in which an officer pepper-sprayed an seven-year-old child earlier the same day.

OPA Director Andrew Myerberg only found evidence to sustain two of the four complaints that stemmed from the nighttime arrests. Based on video of the incident, Myerberg concluded that the officer had only kneeled on the neck of one of the demonstrators and instead kneeled on the other demonstrator’s head.

In an interview on Thursday, Myerberg said that “a knee on the head is not against [SPD] policy,” but added that “it’s not encouraged, and [officers] aren’t trained to do it.” Kneeling on a demonstrator’s neck, however, is now against department policy; at the time of the arrest, those restraints were only “strongly discouraged.”

If the OPA had been able to conclude that the officer had intentionally used a neck restraint to restrict the protester’s breathing, the office would have been able to recommend more serious disciplinary action. Myerberg said the SPD policy manual defines a prohibited neck restraint as the intentional application of pressure to a subject’s neck for the purpose of “controlling a subject’s movement or rendering a subject unconscious.” Myerberg said he couldn’t disprove the officer’s claim that he had unintentionally placed his knee on the man’s neck, but he did determine that “what the officer did was not proportional or necessary, because even if inadvertent, the risk of harm is pretty substantial.”

Therefore, the OPA concluded that the officer had unintentionally violated the department’s use of force policy. The OPA also sustained a complaint that the same officer had inappropriately cursed at and threatened demonstrators, calling one woman a “bitch” and telling a fellow officer that he would “fuck up” another demonstrator.

Interim Chief Adrian Diaz will now be responsible for determining how to discipline the officer for both offenses. ”

The OPA also sustained a professionalism complaint against a different officer for an  incident in which the complainant filmed him saying, “I have a hard-on for this shit and, if they cross the line, I will hit them” while responding to a demonstration. The officer in question admitted his wrongdoing to the OPA‚ saying he said he had been quoting a movie (“Top Gun”).

His admission of wrongdoing opened the door for Myerberg to make use of a new disciplinary track for SPD officers called rapid adjudication, which began as one of the accountability reforms proposed by former OPA Auditor and retired Judge Anne Levinson in 2014 and adopted in 2018 as part of the Seattle Police Officers Guild contract.

In a rapid adjudication case, the officer accepts a disciplinary action and waives the right to an investigation or an appeal, saving the city and themselves from an investigative process that could last up to 6 months. The goal of rapid adjudication, or RA, Levinson said, “was to create a department in which officers can admit their mistakes and acknowledge responsibility. Typically, union contracts prioritize due process‚ officers have the right to investigations, for instance—so there wasn’t room for officers to admit wrongdoing.”

In this case, the officer will only receive a written reprimand. At the moment, Myerberg’s office doesn’t measure the efficacy of disciplinary actions in changing officers’ behavior, but he hopes they will start tracking that data in the future. “We could look at recidivism,” he says, adding that a punishment as minor as a written reprimand could still incentivize good behavior because multiple reprimands are grounds for the department to suspend or terminate an officer.

Myerberg’s office did not sustain the complaint against the officer who pepper-sprayed the seven-year-old, concluding instead that the officer had not intended to spray the child and therefore hadn’t violated department policy. The OPA wasn’t able to interview the child or his father (who was pepper-sprayed alongside his child) after the family’s legal counsel didn’t respond to the OPA’s interview requests.

However, based on body camera footage and officer testimonies, the OPA found that the father and child were standing behind a woman who was trying to wrestle away an officer’s baton; when that woman ducked, the pepper spray hit the child. The bodycam footage also appeared to disprove the father’s claim that he and his child had been praying with members of their church just before the incident: the footage showed the father yelling obscenities at officers in the lead-up to the incident.

Because a picture of the child crying after being pepper-sprayed circulated widely on social media, Myerberg expects the OPA’s findings in that case to be unpopular, but he also doesn’t believe his office has legal grounds to push for disciplinary action against the officer. Instead, he said, the City Council’s crowd control weapons ordinance—the subject of an ongoing court battle—could provide recourse in similar situations in the future.

Because the ordinance bans the use of several less-than-lethal weapons (including pepper spray) in crowd-control scenarios, Myerberg said that in the future, “officers could be liable even for unintentional harm.” It would not, however, open the door to retroactively punish the officer for pepper-spraying the child on May 30.

The OPA also declined to sustain complaints in two other cases. In one, protesters alleged that an officers violated the department’s use of force policy by pushing them back with batons; one complainant added that because of his sexual orientation, the officers’ aggression “seemed homophobic.” After reviewing the bodycam footage, Myerberg found no reason to conclude that the officers had used excessive force, nor did he find evidence that the officers acted out of bias.

The second case arose from a complaint that an SPD officer pushed down an elderly man on Capitol Hill on May 30th. The person who filed the complaint, however, heard about the incident second-hand, and Myerberg’s office couldn’t find any witnesses or video evidence of the incident to back up the complaint.

The OPA will continue to release protest-related findings on a rolling basis. Myerberg’s office has not given a timeline for the next sets of investigations, but the OPA website includes a dashboard showing the progress of demonstration-related complaint investigations.

Seattle Mayor’s Proposal To Move Police Investigations Out of SPD Could Have Unintended Consequences

As calls to defund the Seattle Police Department continue, Mayor Jenny Durkan has proposed moving about $56 million out of the Seattle Police Department’s budget into other parts of the city budget—a ledger swap that could actually cost the city more money than the current system and could, advocates say, actually weaken the accountability system.

When announcing the transfers, Durkan’s office described the changes as “actions to transform the Seattle Police Department and reimagine community safety” by responding to requests from community stakeholders. However, it’s unclear where the impetus for the specific changes the mayor proposed—moving 911 dispatch, the Office of Police Accountability, and the Office of Emergency Management out of SPD—came from.

OPA is the city agency that conducts police misconduct investigations. Under the mayor’s proposal, it would move out of SPD and become its own department, most likely reporting “directly to the Executive and Council,” a spokeswoman for Durkan, Kelsey Nyland, says. “Our hope is that by making them a separate office from SPD, there will be an increase in community confidence in their independence from SPD.”

When asked where the mayor got the idea to move OPA of SPD, specifically, Nyland pointed to the “Blueprint for Divestment” produced by King County Equity Now and Decriminalize Seattle, which includes these three items at the end of a long list that includes a hiring freeze, the elimination of the Navigation Team, the elimination of community outreach implicit bias training, and communications, and the elimination of overtime pay.

The agencies that deal with police accountability, including the Community Police Commission—an independent oversight body—and the OPA itself, were apparently not consulted about the change or asked whether they had concerns. (The CPC only received notice about the changes the mayor was proposing a few minutes before her public announcement). But three years ago, when police accountability advocates like the CPC, the ACLU, and the Public Defender Association were crafting a sweeping police accountability bill, they explicitly kept OPA under SPD’s aegis because doing so allowed them direct access to unredacted SPD files and to SPD personnel.

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Retired judge Anne Levinson, the former OPA auditor whose recommendations for improvements to the accountability system were endorsed by the CPC in 2014 and incorporated into the 2017 accountability legislation, says the point of that ordinance was to create a firewall between the accountability agencies and SPD while preserving their direct access to data and records, case management systems, 911 calls, and other records.

“The usual progressive position is that in order to accomplish that, they also need to be totally outside of the department,” Levinson says—”not under the department’s organizational umbrella. But when we looked at others across the country, we frequently saw not only were they not well-resourced, but they did not have full, , immediate, and unfettered access to all the information they needed to do thorough investigations. Some have to issue subpoenas or public records requests just to get basic evidence. So we said that until the City can ensure no loss in full, direct, and unfettered access to systems and evidence, OPA should not be moved to a stand-alone City agency. It makes a very significant difference.”

Nyland says that maintaining “unfettered access to SPD data and case files” is the “north star” for Durkan, one that could potentially be achieved by by creating a new “data-sharing system between SPD and OPA” and amending the accountability ordinance.

Public Defender Association director Lisa Daugaard, who served on the CPC and worked on the 2017 law, says that “similar civilian-led oversight bodies in other cities have had extreme difficulty getting access” to records in a timely fashion and have had to resort to subpoenas. “Subpoena power still leaves the agency at arm’s length and taking a shot in the dark about what to ask for,” she says. “It’s extremely helpful that OPA can access the records and data it needs from within the organizational structure.”

OPA director Andrew Myerberg, who at the city attorney’s office in 2017 and worked on the bill, recalls that “the decision was made unanimously [in 2017] to keep OPA in SPD” in order “to preserve access to data and people.”

Myerberg says that not only would the changes likely be subject to collective bargaining (something Durkan acknowledged in her announcement), they would also require approval under a federal consent decree and amendments to the 2017 ordinance. For example, although moving OPA out of SPD could increase community confidence in its independence, Myerberg says, the legitimacy of OPA decisions might be called into question if no one from SPD is in the room when OPA is reviewing investigations. Continue reading “Seattle Mayor’s Proposal To Move Police Investigations Out of SPD Could Have Unintended Consequences”