Tag: police accountability

Police

Auburn Cop Convicted of Murder and Assault Is First Sentenced Under 2018 Accountability Law
Auburn Police Officer Jeffrey Nelson

By Andrew Engelson

King County Superior Court judge Nicole Gaines Phelps sentenced Auburn police officer Jeffrey Nelson to 16 years and 8 months prison for the 2019 fatal shooting of Jesse Sarey, a 26-year-old homeless man who was experiencing a mental health crisis. In June, a jury convicted Nelson of second-degree murder and first-degree assault, making it the first conviction under Washington’s police accountability law, which went into effect in 2019.

Nelson was first charged in 2020, but the case was plagued by delays including a pause during the COVID-19 pandemic. 

Phelps’s sentence was not as severe as the prosecution had asked for, but was at the high end of the range. Addressing Nelson directly, Judge Phelps said, “You failed to follow your training. You failed to de-escalate or do something else.”

Phelps was referring to Initiative 940, a voter initiative that passed in 2018. I-940 removed the high bar of “malice” or “bad faith” previously required to prosecute police officers for misconduct, saying, “The law people voted for is about this type of situation.” She noted, “You were a police officer. You had a duty under the Washington state constitution to protect and serve.”

“You will be away from society for a significant amount of time,” the judge told Nelson. “You will never have a gun or badge again.”

According to court testimony and footage from a video surveillance camera, Nelson shot Sarey twice. The second-degree murder charge was for the first, fatal shot. Prosecutors brought the first-degree assault charge for Nelson’s second shot to Sarey’s head, which testimony and video indicated happened after Nelson paused to clear his gun of a jam and as Sarey was lying incapacitated on the pavement.

“[Sarey] wasn’t a danger to himself or others.” Phelps said.

Phelps also criticized the Auburn police department for defending Nelson, even though testimony showed he had a long history of excessive use of force. Sarey’s killing was the third time Nelson had killed someone as an officer. During a traffic stop in 2011, Nelson fatally shot Brian Scaman, and in 2017 he fatally shot Isaiah Obet, leading to an unusually speedy $1.25 million court settlement.

“This officer has a past that no one in the department acknowledged,” Phelps said, noting that this sent a message that “the Auburn police Department will stand behind an officer no matter what.”

The trial was the second prosecution under I-940, and the first conviction. In December 2023, a jury found three Tacoma officers not guilty of manslaughter and murder in the death of 33-year-old Manuel Ellis.

King County Prosecuting Attorney Leesa Manion said in a statement, “The sentence reflects the very serious nature of Jeffrey Nelson’s crimes.  We have always known how impactful this case is to the individuals involved and to the community as a whole. Our thoughts continue to be with the family and loved ones of Jesse Sarey.”

Police

Kevin Dave, Officer Who Struck and Killed 23-Year-Old Student in 2023, Appeals His Firing
The intersection of Dexter and Thomas, where police officer Kevin Dave struck and killed 23-year-old student Jaahnavi Kandula.

By Erica C. Barnett

Kevin Dave, the Seattle police officer who struck and killed 23-year-old pedestrian Jaahnavi Kandula in January 2023, is appealing his firing and seeking reinstatement as a police officer, PubliCola has learned. Interim police chief Sue Rahr fired Dave earlier this month, noting that he had violated several SPD policies on emergency driving as well as the law.

Dave was driving 74 miles an hour—about three times the speed limit—on a wet, rainy night two years ago when he hit Kandula, who had just entered a marked crosswalk on Dexter Ave..

Last year, the King County Prosecuting Attorney’s Office declined to prosecute Dave, finding that he was responding to a “legitimate emergency”—a reported overdose in South Lake Union. Former police chief Adrian Diaz claimed at the time that Dave was responding “as an EMT” with training in overdose reversal.  However, a disciplinary report signed by Rahr in October found that Dave met all three of the requirements for vehicular homicide—regardless of whether the prosector’s office, using a higher standard of proof, charged him with a crime.

Dave told OPA investigators that he was “responding to a ‘life or death situation,'” the report says, and that he would not have been able to reverse the overdose in time if he had driven more slowly. However, PubliCola’s reporting revealed that the person who called 911 to report the “overdose” was, in fact, “freaking out” after taking too much cocaine; he walked down to the street outside his building before calling 911 and was lucid and relatively calm.

Overdose reversals—which involve rescue breathing or Narcan— are for opiates, and their purpose is to get an unresponsive person breathing again. There is no such thing as an overdose reversal for cocaine.

According to Dave’s discipline report, he told Office of Police Accountability investigators that in the seconds prior to the collision, he “saw a ‘long straight road’ ahead [and] had a ‘clear line of sight,'” so didn’t feel the need to activate his siren before accelerating rapidly. (Dave also claimed he wanted to avoid community complaints about the noise).

But, Rahr’s report notes, “OPA found that you drove faster than was reasonably necessary to safely arrive at the scene under the circumstances, citing, again, the multiple crosswalks and reflective signs indicating the possible presence of crossing pedestrians.”

As for possible “community complaints” about siren noise, the report says, “It is difficult to imagine a more appropriate circumstance for using a continuous siren than the factors [you] faced.”

“When OPA noted that an independent investigative entity concluded that the collision might have been avoided if you had been traveling at 50 MPH, you described this as ‘hindsight’ and stated that if you ‘had been doing 20 miles an hour, a collision wouldn’t have occurred, but that speed isn’t reasonable for someone who’s going to have brain damage in under five minutes because of an overdose,” the report continued. Dave also told investigators that Kandula’s “inattention” and the fact that she “ran out in front of” his car were partly to blame for her death.

“You said:  ‘I’m not a jerk, I haven’t s[o]wed mistrust in the community,” Rahr’s report notes, as “an apparent attempt to distinguish your conduct from that of” Daniel Auderer, the officer who was fired after joking with his fellow police union leader Mike Solan about Kandula’s death.

Dave’s attorney argued that he couldn’t possibly have anticipated a pedestrian stepping out into a crosswalk on Dexter Ave., and argued that he was dazzled by all the signs, lights, and reflective construction barriers that lined Dexter Ave. at the time. But Rahr said these factors “should have caused you to slow down,” not speed up.

“The signs warning you that pedestrians might be crossing ahead, the reflection of your lights off of those signs, the oncoming headlights in your eyes, the construction barriers lining and narrowing the lane and inhibiting your view, and the presence of well-marked crosswalk itself, all should have caused you to proceed cautiously rather than speed through the obvious hazard zone. ”

“The most basic foundational principal of emergency vehicle operation is your duty to exercise due care for the safety of all persons when responding to an emergency. It is inconceivable to me that you didn’t understand that at the time of the collision,” Rahr wrote.

“Or that you did not understand the risk to pedestrians that YOU created by driving through a crosswalk at freeway speed, on a dark, wet night, through a construction zone with limited visibility,” Rahr’s report continued. “The risk you created FAR outweighs the risk to a possible overdose victim suffering potential brain damage if you had arrived a few minutes later so you could drive at a safer speed. As it was, you never made it to that call at all.”

The Public Safety Civil Service Commission will hold an initial case conference meeting on Dave’s appeal on January 16, but it could be months before the full commission considers his request for reinstatement. Dave remained a paid SPD employee for two years after killing Kandula.

Police, public safety

SPD Fires Officer Who Struck and Killed Pedestrian Jaahnavi Kandula Two Years Ago
photo of Jaahnavi Kandula
Jaahnavi Kandula

By Andrew Engelson

On Monday, interim Seattle Police Chief Sue Rahr sent an email to SPD staff announcing that she had fired officer Kevin Dave, who struck and killed 23-year-old graduate student Jaahnavi Kandula in a South Lake Union crosswalk in January 2023 while driving 74 miles per hour. 

PubliCola obtained the email, which was first reported on by The Stranger, from SPD. In it, Rahr noted that the Office of Police Accountability found that Dave had violated four SPD policies. Officers must adhere to laws; officers should modify emergency response when required; officers are responsible for the safe operation of their vehicles; and officers should use emergency lights during emergency responses.

 “I understand and accept that many will not agree with this decision,” Rahr wrote, adding that Dave was trying to get to a “possible overdose victim” and “did not intend to hurt anyone that night.” Rahr concluded, however, that “I cannot accept the tragic consequences of his dangerous driving. His positive intent does not mitigate the poor decision that caused the loss of a human life and brought discredit to the Seattle Police Department.”

The “possible overdose victim” was actually lucid and standing outside his South Lake Union apartment building when he called 911 to say he was “freaking out” on cocaine, telling the 911 dispatcher that his symptoms were “starting to go away.”

PubliCola previously reported that SPD knew before hiring Dave that he had been fired from the Tucson Police Department in 2013 for a “checkered past” that included discipline for several incidents, including one for a “preventable” collision. Dave was also questioned in an erratic driving incident after his firing; a Tucson police officer who spoke with Dave reported that he “appeared to be on some type of narcotic.” PubliCola also found that at the time of the collision with Kandula, Dave did not have a valid Washington driver’s license.

King County Prosecutor Leesa Manion declined to press charges against Dave. City Attorney Ann Davison issued Dave a $5,000 second-degree negligent driving ticket, which he initially challenged, but later agreed to pay.

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Kandula’s killing became an international outrage after police union vice president Daniel Auderer was caught on a body cam video taken shortly after the crash joking with police union president Mike Solan that SPD should “write a check for $11,000” because the young woman had “limited value.” Last July, Rahr fired Auderer, who responded with a $20 million tort claim for wrongful termination. 

In September, Kandula’s family announced they were suing the city of Seattle for $110 million plus $11,000, in a direct reference to Auderer’s comment about her “limited value.”

A PubliCola analysis of GPS data from SPD vehicles during the month of January 2023, when Kandula was killed, found that officers, including Auderer, regularly drive at excessive and dangerous speeds. In November, SPD updated its emergency vehicle operations policy, which had been extremely vague—instructing officers to  “drive no faster than their skill and training allows and [what] is reasonably necessary to safely arrive at the scene.” 

Courts, Mayor Harrell, podcasts, Police

This Week On PubliCola: December 21, 2024
Not Art, say the city and county: A memorial mural for tagger Joseph “Gride” Johnson, whose personal struggles were documented in the film “Make It Rain.” Both the mural and the film were used as evidence in this week’s felony graffiti case.

The mayor’s war on graffiti, ex-police chief Adrian Diaz fired, and much more.

By Erica C. Barnett

Monday, December 16

Council Amendments Could Restore Some Oversight in Bill Removing Restrictions on “Less-Lethal” Weapons

The city council will take up Mayor Bruce Harrell’s proposal, sponsored by council public safety chair Bob Kettle, to repeal most of the legal restrictions on their use of “less-lethal” weapons for crowd control, in January. Cathy Moore and Alexis Mercedes Rinck were discussing amendments to the bill that would restore some guardrails, such as requiring council approval for new weapons and putting police from other departments on desk duty if they won’t agree to follow Seattle policies.

Tuesday, December 17

Head of Anti-Eviction Group Leaves for Job at Homelessness Authority, Ferguson Appointment Could Shake Up Legislature

Edmund Witter, the longtime head of the Housing Justice Project, is leaving to become general counsel for the regional homelessness agency; two top King County human services staffers will also take top roles at the agency. Also: Council president Sara Nelson went on KUOW to gaslight Tammy Morales, who’s leaving the council, in part, over a toxic work environment, and some Gov. Elect Ferguson-adjacent news that could lead to a search for another Seattle state legislator.

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Wednesday, December 18

Mayor Harrell Fires Former Police Chief Adrian Diaz

After praising ex-police chief Adrian and calling him a “good man” and a friend earlier this year, Mayor Harrell officially fired the former police chief this week, citing an investigation that found he had an affair with a woman, Jamie Tompkins, whom he as his chief of staff, bypassing a standard check and violating four SPD policies, including one requiring honesty.

Seattle Police Chiefs Routinely Minimize Discipline; City Will Pay to Defend Former Chief Diaz Against Lawsuits

An audit from the city’s Office of Inspector General (who conducted the investigation into Diaz) concluded SPD has not made progress on problems identified several years ago, including chiefs’ tendency to impose the lowest possible discipline for officers who violate policy. Also, the city attorney’s office confirmed that taxpayers will fund lawyers for Diaz, who currently faces four lawsuits by women who say he sexually harassed or discriminated against them.

Friday, December 20

“Illegal Vandalism” Is “Not Art”: Prosecutors Announce Felony Graffiti Charges

City, county and state prosecutors and police have been working for much of this year to build felony cases against 16 local taggers who they say are responsible for nearly $100,000 in damage. Officials, and the business reps they invited, spent a surprising amount of time defining what “art” is and isn’t and trying to distinguish between appropriate “murals” and illegal “graffiti.”

Seattle Nice: Harrell Fires Ex-Police Chief, Metro Killing Raises Transit Safety Questions, and What IS Art, Anyway?

We discussed the biggest news of the week (with details from the investigation that were first published on PubliCola) before turning to the tragic killing of a Metro bus driver this week, which (I argued, and believe) was immediately and inappropriately politicized by fear-mongering politicians who want infinite spending on police. Finally, we talked about graffiti: I’m fine with it (and like quite a lot of it), Sandeep says Seattle will look like NYC in the ‘70s if we don’t send a strong message that graffiti is unacceptable.

Police

Seattle Police Chiefs Routinely Minimize Discipline; City Will Pay to Defend Former Chief Diaz Against Lawsuits

1. The city’s Office of the Inspector General just completed an audit into the city’s disciplinary system for police officers accused of misconduct, which found that in a majority of cases, officers who are disciplined receive punishments “at the minimum of recommended ranges, and sometimes below,” largely because former police chief Adrian Diaz gave more weight to mitigating factors, such as an officer’s length of services, than aggravating ones.

An audit in 2021 reached similar conclusions, indicating that under Diaz, SPD did not address the the concerns OIG raised about previous police chiefs’ disciplinary decisions three years ago.

The audit, released Monday, got lost in yesterday’s news about an OIG investigation into Diaz that resulted in Mayor Bruce Harrell firing the former chief, who has been on SPD’s payroll since his demotion in May, for dishonesty, lack of professionalism, and other violations related to an alleged affair between Diaz and his former chief of staff.

As in the 2021 audit, the OIG concluded that the police chief often decided to impose the lowest possible discipline after meeting with an accused employee in a Loudermill hearing—an opportunity for employees to tell their side of the story.

A “pattern of lower discipline highlights the imbalance between officers who are entitled to speak with the Chief before a disciplinary determination, and complainants who do not have a similar avenue to provide their perspective” to the police chief, the audit notes. This, in turn, can lead the arbitrators who consider officers’ disciplinary appeals to lean more and more into the lower end of the disciplinary range, lowering penalties for misconduct over time, according to the audit.

The audit also found that there is still a massive backlog of 106 officer appeals awaiting arbitration, with most of those (82) still unresolved since the 2021 audit. Almost three-quarters of these appeals involve cases where an officer received a verbal or written reprimand or no discipline at all, but still appealed the decision.

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2. The Seattle City Attorney’s Office confirmed that the city will continue to defend former police chief Adrian Diaz in the claims several women have filed against him for sexual harassment and gender discrimination. A spokesman for City Attorney Ann Davison’s office said the city will continue to defend Diaz because the lawsuits “involve actions allegedly taken (or not taken) by [Diaz] in the course and scope of his employment as the Chief of Police.”

Diaz filed a $10 million tort claim against the city in October, claiming Mayor Bruce Harrell and other city officials discriminated against for his sexual orientation after he told a local right-wing talk show host that he was gay.

On Tuesday, the city’s Office of Inspector General released its report on an investigation that concluded Diaz had an inappropriate relationship with a employee, Jamie Tompkins, failed to disclose his relationship with her, lied about it, and behaved unprofessionally.

The investigation does not weigh in directly on whether Diaz was lying in that interview, but does note that Diaz brought up being gay “as a basis for why an intimate or romantic relationship with” Tompkins. “Based on a preponderance of the evidence provided,” the investigator wrote, “I find that Mr. Diaz and [Tompkins] had an intimate or romantic relationship.”

It’s unclear how much defending Diaz in the lawsuits against him (and any future lawsuits about his alleged behavior as chief) will cost the city. The amount the city spends on civil lawsuits against the city, including outside lawyers and settlements, has been rising steadily every year. As a result, the city has begun adding $10 million or more to its existing judgment and claims fund every year to deal with “extraordinary” or “increasingly expensive” claims; in the budget that just passed, the city added $10 million to pay for “extraordinary, high-cost cases” that involved “higher-than-anticipated expenses.”

City Council, Police

Council Amendments Could Restore Some Oversight in Bill Removing Restrictions on “Less-Lethal” Weapons

By Erica C. Barnett

Legislation to repeal Seattle’s current restrictions on police officers’ use of “less-lethal” crowd-control weapons is moving forward quickly, with a committee vote scheduled for January 14, shortly after the council returns from a winter break that starts this Friday afternoon.

That leaves just five days for council members to propose amendments to the bill; council public safety committee chair Bob Kettle, who’s sponsoring legislation sent down by Mayor Bruce Harrell, told council members in an email last week that he needs amendments to come in early “in part to ensure transparency but also because of the unique aspects of the Federal Monitor, DOJ, and the Court as this impacts the Consent Decree process.”

The legislation repeals a law governing SPD’s use of less-lethal weapons that has been in effect since 2021. SPD has never followed that law, which their legal counsel argued would “compromise public safety”; instead, the department created its own “interim policy” that does not specifically restrict or bar police from using any less-lethal weapons. (The 2021 law replaced a total ban on less-lethal weapons that the federal district judge overseeing the consent decree, James Robart, enjoined earlier that year).

The bill the council is considering empowers SPD to come up with its own crowd control policy, guided by with a list of “values and expectations” in the legislation—effectively instituting a lightly amended version of the interim policy SPD has been using, in defiance of existing law, for more than three years.

The passage of the crowd-control bill could set the stage to end the 12-year-old consent decree between the city and the US Department of Justice.

Council public safety chair Bob Kettle, who’s sponsoring the legislation sent down by Mayor Bruce Harrell’s office, was unavailable for comment Friday, so we weren’t able to ask him directly why he wants to push the legislation through so quickly. After all, the council and mayor have known for years that the Seattle Police Department considered the law on less-lethal weapons unworkable, and took no action.

Last week, Councilmember Cathy Moore expressed concerns about the timing, noting that passing a new crowd-control law isn’t a guarantee that Judge Robart will release the city from the consent decree.

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“I appreciate that we want to get out of the consent decree,” she said. But given the many unknowns, Moore added, “I just don’t think there can be a false sense of urgency that we’ve got to get this done so we can get the consent decree lifted. There’s no guarantee that what we do here today is going to result in the consent decree being lifted, and I think we need to use this opportunity as we are to be very thoughtful about this policy going forward.”

Moore (who, like Kettle, said through a spokesperson that she was unavailable on Friday) is expected to propose several amendments, including some co-sponsored with new Councilmember Alexis Mercedes Rinck.

The first potential amendment would require the mayor to approve the use of blast balls—grenades, used widely during the protests against police brutality in 2020, that can cause serious injuries—in addition to tear gas, which requires mayoral approval under a recently passed state law.

In a November memo suggesting changes to the legislation to improve safety and accountability, the Seattle Office for Civil Rights included several examples of injuries caused by police using “less lethal” weapons. At a meeting last week, Councilmember Rob Saka appeared to dismiss these examples, saying they were from “all across the world.”

A second amendment would require council approval for new less-lethal weapons that emerge in the future. The current proposal gives SPD carte blanche to approve new technologies, as long as the department believes they comply with the “values and expectations” laid out in the legislation. According to a central staff memo, the change would let SPD use new weapons against the public “without the delay associated with the legislative process, and without drawing the Council into technical, rather than policy-level, judgements about appropriate tools and methods.”

Saka praised this aspect of the mayor’s bill last week and suggested expanding it, saying he saw no reason the council needed to approve surveillance technologies like “throw phones” used in hostage standoffs.

Another potential amendment would require police departments outside Seattle that provide “mutual aid” during large events to either follow SPD’s policies or be assigned to desk duty, freeing up Seattle officers to respond on the street. The legislation, as written, exempts mutual aid agencies from following Seattle’s law, or SPD’s internal policies, when doing crowd control on the city’s behalf.

Finally, council members are exploring whether to retain a private right of action, included in the 2021 law the new legislation would repeal, for people injured by police using less-lethal weapons. “It is important to provide accessible opportunities for residents to pursue their claims under city law rather than under state or federal law where the proof required is more stringent and the doctrines of qualified immunity and public duty may prevent them from receiving damages for their injuries,” SOCR wrote in its memo.