Tag: police accountability

Burien Makes “Camping” Ban Worse, Auderer Now on Red-Light Camera Duty, Harrell Order Subtly Improves New Drug Law

1. On Monday night, the Burien City Council expanded the number of hours per day in which being unsheltered will soon be illegal, changing the daily deadline for homeless people to be off the streets from 10 pm to 7 pm. The change, an amendment to the sleeping ban the council passed just one week earlier, bans people from “living on” public property between 7 in the evening and 6 in the morning.

During Monday’s meeting, Burien City Attorney Garmon Newsom II said the city decided to make the adjustment after learning that many shelters “begin making their decisions” about who to admit around 4:30 in the afternoon; by 10pm, most are closed and “it would be too late” to take people there. By starting the ban earlier in the evening, the city seems to believe it can plausibly say shelter was “available” and that people refused to accept it, making it legal for police to remove or arrest unsheltered people from the streets.

Signs of camping, according to the ordinance, include “bedding, cots, sleeping bags, tents or other temporary shelters, personal belongings storage, and cooking equipment use or storage.”

During the meeting, Newsom inaccurately claimed the new proposal actually increases “the amount of time they are able to camp” by allowing “camping” between 7 pm and 6 am; in fact, it does the opposite, making it illegal to be unsheltered in public spaces between those hours. Councilmember Cydney Moore, who opposed the underlying ordinance, tried to correct the record, prompting a brief back and forth with Newsom that Mayor Sofia Aragon cut off, saying Moore should limit her comments to “these technical changes.”

The council’s agenda also suggests proponents were confused about what the amendment does. According to the bill description, it “clarifies, consistent with the council’s previously stated intent, that there will be no camping outside of the hours stated in the ordinance. At this time, the proposed amendment would change the start time for camping from 10:00 p.m. to 7:00 p.m.” In reality, it changes the start time when “camping” is illegal.

Before voting for the change, deputy mayor Kevin Schilling said the King County Sheriff’s office had signed off on the change. A spokesman for King County Executive Dow Constantine told PubliCola Tuesday that the county still has not made a decision about whether and how to enforce the law.

2. Daniel Auderer, the Seattle Police Officers Guild vice president caught on body-worn video joking with guild president Mike Solan about the killing of 23-year-old student Jaahnavi Kandula by another police officer, Kevin Dave, has been reassigned to review red-light camera footage and sign traffic tickets, PubliCola has learned.

Only a handful of officers are assigned to red-light camera duty at a time. Often, these officers are near retirement or, like Auderer, have been removed from patrol duty because of a complaint or other problem with their performance.

Auderer’s comments came to light when the King County Prosecuting Attorney’s Office, which is considering criminal charges against Dave, released the video to PubliCola and a reporter for the Seattle Times in response to records requests.

The Community Police Commission has called on Police Chief Adrian Diaz to put Auderer on leave without pay until the OPA complaint is resolved.

The changes are subtle—so subtle PubliCola didn’t notice them when we wrote about the executive order last week. The order reinstates language saying officers “will” determine the level of threat and make reasonable efforts to divert people from arrest when possible, and restores language Nelson deleted saying that officers should not arrest a person “absent articulable facts and circumstances warranting such action.”

3. In his executive order order clarifying how SPD should implement a new law criminalizing public drug use last week, Mayor Bruce Harrell mostly restated the language in the underlying bill, which says police should try to divert people to social service programs that will help them address their drug use instead of resorting immediately to arrests. But the EO includes a couple of subtle tweaks that could undo changes Councilmember Sara Nelson inserted at the last minute to give officers extra discretion to make arrests.

The changes are subtle—so subtle PubliCola didn’t notice them when we wrote about the executive order last week. They’re about the words “will” and “may.” In her amendments, Nelson changed language stating that officers “will” determine whether a person poses a threat of harm to self or others, and language stating that officers “will make reasonable efforts to” use diversion rather than arrest to say that officers “may” do both things, making each decision completely discretionary.

Harrell’s executive order reinstates language saying officers “will” determine the level of threat and make reasonable efforts to divert people from arrest when possible, and restores language Nelson deleted saying that officers should not arrest a person “absent articulable facts and circumstances warranting such action.”

Mayoral spokesman Jamie Housen told PubliCola, “As was discussed extensively during Council debate, the legislative branch cannot direct the actions of executive branch employees through legislation. Mayor Harrell has made it clear that under this bill he wants officers to conduct a threat of harm assessment and that diversion is the preferred outcome rather than further criminal legal system engagement.”

Under the language Nelson added to the bill, there would be little recourse if officers decided, using their broad discretion, to arrest every person using drugs in public without determining if they posed a threat, and no legal reason for officers to try to get people into diversion programs instead of arresting them.  By changing both words back to “will”—in the implementing executive order, if not the legislation—Harrell strengthened the bill (which, we feel obligated to add, still does not require diversion or fund any new diversion programs).

As Questions Swirl About SPD Accountability, City Announces “Dual-Dispatch Pilot” for Low-Priority Calls

By Erica C. Barnett

On Thursday, during a press conference outlining his proposal to expand, reorganize, and rename the city department that responds to 911 calls, Mayor Bruce Harrell said he believed “the process is working” in the case of Daniel Auderer, a police officer and Seattle Police Officers Guild vice president who was caught on body-worn video mocking the death of 23-year-old student Jaahnavi Kandula with SPOG president Mike Solan. The video, which only captured Auderer’s side of the conversation, was recorded shortly after Officer Kevin Dave struck and killed Kandula on January 23.

Harrell was announcing $6 million in new funds for the Community Assisted Response and Engagement (CARE) department, formerly known as the Community Safety and Communications Center; that money will help hire 13 new staff, including behavioral health specialists, to respond alongside police to low-priority calls.

The question about Auderer came from a trainee at the 911 call center in SPD’s West Precinct where the announcement took place.

“Sometimes justice is not quick, due process sometimes is not quick, certainly not as quick as people would like to see,” Harrell said. “But everyone accused of misconducth as the right to due process and I will defend that process. We can’t be quick to judgment. … I have a member of my administration who was sentenced to prison for over 20 years without the possibility of parole. He was unfairly convicted because of the lack of due process. So I will defend due process … and hopefully we’ll see outcomes that people will say, ‘the system worked’.”

As PubliCola reported last week, an SPD employee saw the disturbing video and reported it to supervisors on August 2. Six days later, Auderer sent a letter to the Office of Police Accountability (OPA) attempting to minimize his and Solan’s comments, saying the two SPOG leaders were laughing at “the ridiculousness of how I have watched these incidents play out as two parties”—in this case, Kandula, who was killed by a speeding police officer just hours earlier, and SPD’s own lawyers—”bargain over a tragedy.”

Earlier this week, the Community Police Commission, a civilian oversight body, wrote a letter calling on Police Chief Adrian Diaz to immediately suspend police officer Daniel Auderer without pay while the investigation is ongoing.

SPOG released Auderer’s August 9 letter to a conservative radio commentator the day before PubliCola and the Times received the video in response to records requests, and posted, on social media on September 15.

Earlier this week, the Community Police Commission, a civilian oversight body, wrote a letter calling on Police Chief Adrian Diaz to immediately suspend Auderer without pay while the investigation is ongoing. The CPC also asked Diaz to “immediately engage in a workgroup consisting of the Seattle Police Accountability Partners and members of the community to address repeated concerns with the culture of policing and police practices at SPD.” The other accountability “partners” are OPA and the Office of Inspector General, an independent office that reviews and audits SPD as well as OPA.

Mayor Bruce Harrell and 911 dispatcher Jordan Wallace discuss a Priority 3 call about someone selling stolen merchandise in the International District Thursday.

Auderer’s statements, the three CPC co-chairs wrote, “are horrifying and raise serious concerns about his attitude toward and interactions with members of the community, and his ability to investigate cases equitably, accurately, and without bias and keep the City’s residents safe. While the [body-worn video] does not capture SPOG President Mike Solan’s comments on the other end of the call, there is simply no context that could possibly make these comments acceptable.”

As of Friday, CPC co-chair Joel Merkel said SPD had not responded to the letter; a spokesperson for SPD said they had no comment beyond the statement they released on their website shortly after we published the video last week.

The city has been promising to send civilian first responders to calls that don’t require a police response since 2020, when thousands protested police misconduct after the death of George Floyd. In 2021, then-mayor Jenny Durkan announced the launch of a new crisis response team within the fire department to respond to some crisis calls, but the proposal never got off the ground.

Harrell, similarly, has vowed since taking office in 2022 to create a new “third public safety department,” in addition to police and fire, that would include a new type of civilian first responder. This week’s announcement does include new civilian responders. But they won’t be going out to most calls involving people in crisis.

Instead, they’ll be deployed, along with police, to two call types that police have already determined do not necessarily require a police response. Priority 4 calls, the lowest priority, are non-emergency calls that generally don’t require a police response at all. Priority 3 calls are for minor issues that may or may not get a police response, depending on officer availability—everything from noisy neighbors to off-leash dogs to illegal parking.

Priority 3 calls do include “person down” calls, where someone is unconscious in public, and welfare checks—two call types that might benefit from a behavioral health response, Diaz noted. “Sometimes, a highly intoxicated [person] might actually be … experiencing some level of crisis. Not always, but in some cases,” Diaz said.

However, the majority of Priority 3 calls, Diaz said, are so-called “paper calls”—calls where the incident already happened and the only thing left to do is file a report. Harrell characterized the new program as a “dual dispatch pilot” that the city will evaluate in a year or two “to see where it makes sense… [and] where the data leads us.”

SPD, Diaz noted, already has an internal crisis response team; more than 60 percent of officers have also taken a 40-hour course in crisis intervention training.

“Write a Check for $11,000. She Was 26, She Had Limited Value.” SPD Officer Jokes with Police Union Leader About Killing of Pedestrian by Fellow Cop

By Erica C. Barnett

In a conversation with Mike Solan, the head of the Seattle Police Officers’ Guild, Seattle Police Department officer and SPOG vice president Daniel Auderer minimized the killing of 23-year-old student Jaahnavi Kandula by police officer Kevin Dave and joked that she had “limited value” as a “regular person” who was only 26 years old.

In the video, taken in the early morning after Dave hit Kandula in a crosswalk while speeding to respond to a call from a man who believed he had taken too much cocaine, Auderer says he has talked to Dave and he is “good,” adding that ” it does not seem like there’s a criminal investigation going on” because Dave was “going 50 [mph]—that’s not out of control” and because Kandula may not have even been in a crosswalk. Auderer added that Dave had “lights and sirens” on, which video confirmed was not true.

In fact, as we reported exclusively, Dave was driving 74 miles an hour in a 25 mile per hour zone and struck Kandula while she was attempting to cross the street in a marked and well-lighted crosswalk.

“I think she went up on the hood, hit the windshield, then when he hit the brakes, she flew off the car. But she is dead. No, it’s a regular person. Yeah, just write a check. Yeah, $11,000. She was 26 anyway, she had limited value.”—Seattle police officer Daniel Auderer, joking with police union president Mike Solan about the death of pedestrian Jaahnavi Kandula earlier that night.

“I don’t think she was thrown 40 feet either,” Auderer told Solan. “I think she went up on the hood, hit the windshield, then when he hit the brakes, she flew off the car. But she is dead.” Then Auderer laughed loudly at something Solan said. “No, it’s a regular person. Yeah.”

We have asked SPOG via email what Solan asked that made Auderer clarify that Kandula was a “regular” person, as opposed to another type of person Dave might have hit.

“Yeah, just write a check,” Auderer continued. Then he laughed again for several seconds. “Yeah, $11,000. She was 26 anyway, she had limited value.” At this point, Auderer turned off his body camera and the recording stops.

Joel Merkel, the co-chair of Seattle’s Community Police Commission, called the video “shockingly insensitive.

“I was just really struck by the casual laughter and attitude—this was moments after she was killed,” Merkel said. “You have the vice president of SPOG on the telephone with the president of SPOG essentially laughing and joking about the pedestrian’s death and putting a dollar value on her head, and that alone is just disgusting and inhumane,” Merkel said.

Rantz claimed Auderer had immediately “self-reported” his comments by filing his own complaint with the Office of Police Accountability (OPA). After this post went up, OPA confirmed that the initial complaint actually originated with SPD employee who reported the incident on August 2, not Auderer, whose letter is dated August 8.

Right-wing commentator Jason Rantz attempted to pre-spin the video as an empathetic response that included a bit of “gallows humor,” saying the comment was “being described as a ‘leak’ of the content to media members who are hypercritical of police.” Rantz claimed Auderer had immediately “self-reported” his comments by filing his own complaint with the Office of Police Accountability (OPA). After this post went up, OPA confirmed that the initial complaint actually originated with SPD employee who reported the incident to OPA on August 2—not Auderer, whose letter is dated August 8.

Rantz also claimed the two police union officials’ comments were meant to “mock city lawyers” who work on cases in which police officers kill or harm civilians, which, Merkel says, “doesn’t make it any better and possibly even makes it worse! Because [in that case] you have SPOG complaining or mocking or joking about police accountability, which is really at the heart of the consent decree.”

Last week, US District Judge James Robart lifted the majority of a federal consent degree over SPD that has been in place since 2012, finding the department in full compliance with the portions of the agreement that dealt with use of force and bias-free policing, while maintaining federal oversight of the departments crowd-control and accountability policies. The city is currently locked in contract negotiations with SPOG. The city’s most recent contract with SPOG erased or neutralized reforms the city council, which included now-Mayor Bruce Harrell, passed in 2017.

Although Robart has said he has no authority to get involved in SPOG negotiations, Merkel said he was encouraged that he also said he “felt he had the jurisdiction to impact the contract to the extent that it affects accountability” during last week’s court hearing in which the judge largely terminated the agreement.

PubliCola requested videos and documents related to the collision through the ordinary public disclosure process several months ago and has been receiving installments through the regular public disclosure process.

SPD did not respond to a request for comment. Half an hour after this post went up, the department posted the video on its website, along with a statement. According to the post, an SPD employee “identified” the video “in the routine course of business” and alerted their supervisor; when the video made its way to Police Chief Adrian Diaz’s office, the post says, his office sent it to the Office of Police Accountability (OPA) for investigation. Again, Auderer’s “self-report” came nearly a week after the initial OPA complaint

“As others in the accountability system proceed with their work, we again extend our deepest sympathy for this tragic collision,” SPD’s blog post says.

Auderer has been on the police force for 12 years and has been investigated by OPA for dozens of allegations, including several that involved violence against members of the public. In many cases, OPA has sustained, or upheld, the complaints.

In one incident, Auderer and his brother—a police officer for another jurisdiction—pulled a person out of their apartment without identifying himself as a police officer, failed to inform him of his Miranda rights, and did not report the incident to his bosses. Auderer was suspended for four days for that incident. In another, he chased down someone who was urinating in public and tackled him onto the concrete, injuring him. (Auderer later claimed he was trying to keep the man from running into traffic, which the investigator called “a logical stretch.”

“Indeed, this is not the first time that OPA has had such concerns. [Auderer] had numerous cases over the last two years in which it was alleged that he was unprofessional.”—Office of Police Accountability investigator

Many other complaints about Auderer involved alleged lack of professionalism. In one case, he threatened to break a person’s arm if he reached for his keys, asked if he was mentally ill, and failed to put a seat belt on him while he was handcuffed in the back of Auderer’s patrol car. Although OPA effectively dismissed the complaints in that case by giving Auderer a training referral, the investigator expressed concern with Auderer’s “general approach to this incident, his demeanor, and the way he interacted with the Complainant. Indeed, this is not the first time that OPA has had such concerns. [Auderer] had numerous cases over the last two years in which it was alleged that he was unprofessional.”

In another case, which was sustained, Auderer appeared to mock a woman who said she was developmentally disabled and had cognitive challenges that made it difficult for her to remember specific instructions during a DUI test. He then accused her of lying about being a veterinary nurse, suggesting she wasn’t capable of holding such a complicated job. “I know you usually get a reaction out of people, but you’re not going to get a reaction out of me,” Auderer told the woman, who appeared to be responding calmly and reasonably. He then informed another officer that she was “220,” code for mentally ill, in her presence, and said, “You also need to go see your mental health professional and I think you know that.”

Several other complaints against Auderer involved what appeared to be overzealous investigations of driving under the influence, such as a case in which he “effectuated an arrest” by another officer of a dead-sober man who briefly swerved his car because he was eating a hot dog. “I very much empathize with the subject who suffered through a Kafkaesque experience,” the OPA investigator wrote.

The King County Prosecutor’s Office has not yet decided whether to prosecute Dave in the case, which is under criminal investigation.

This is a developing story and will be updated.

SPD Chief Says He Doesn’t Know How Fake Tombstone for Police Shooting Victim Ended Up On Display In Precinct Break Room

Seattle Police Chief Adrian Diaz

By Erica C. Barnett

Seattle Police Chief Adrian Diaz appeared before the Community Police Commission Wednesday morning to address a body-worn video showing a fake tombstone with the name of Damarius Butts, who was killed by four SPD officers in 2017, displayed on a shelf above a microwave in a break room at the department’s East Precinct on Capitol Hill. The video also shows large Trump 2020 flag hanging on a back wall of the room.

The Office of Police Accountability (OPA) is investigating the incident.

During his comments, Diaz did not directly apologize for the display, saying only that he “acknowledged the impacts that we created after George Floyd’s murder, and I apologize for those impacts—those impacts that we’re here discussing today.” Diaz added that since 2021, when the video was taken, the department has taken a number of steps to create a “healthy environment,” including a relational policing program called Before the Badge and trainings in a system called Outward Mindset. He also noted that officers were under a great deal of stress during and after the 2020 protests.

“Over the last three years we’ve lost 575-plus officers, [so] our personnel since that time has changed. We are changing,” Diaz said. “We continue to move this department forward. But change takes time.”

“I want to know why this happened. I want to know why it was allowed to continue. I want to know if anyone has been held accountable. I want to know what is being done so it never happens again. I want to know why killing my son and getting away with with it wasn’t enough. I want answers and so far, I haven’t heard any.”—Stephanie Butts, mother of police shooting victim Damarius Butts

In response to questions from CPC member Adrian Leavitt, who is also the attorney for Butts’ surviving family, Diaz said he had no information about where the tombstone came from, how it ended up at the East Precinct, who propped it up on the shelf, how many weeks or months it sat there, or how many people saw it before it was finally removed.

“As far as some of the other details, as far as officers who saw it, who displayed and who put it up, those are stuff that I think OPA will hopefully be able to kind of unwind and be able to articulate what happened,” Diaz said. “We had a significant amount of officers that left the department, many officers from the East Precinct specifically, and so we still don’t know if some of those officers that left the department were a part of that.”

Butts’ mother, Stephanie Butts, said she was shocked when she learned SPD officers were “so callous that they were heating up food in a microwave below my son’s fake tombstone and didn’t see anything wrong with that. … I want to know why this happened. I want to know why it was allowed to continue. I want to know if anyone has been held accountable. I want to know what is being done so it never happens again. I want to know why killing my son and getting away with with it wasn’t enough. I want answers and so far, I haven’t heard any.”

In an official statement released last week, SPD suggested the tombstone may have placed outside the precinct by a protester, and referred to the shelf in the break room as a “storage shelf” where SPD stored items “until they were discarded.” The video does not show any other items in a similar state of “storage.”

According to Leavitt, the tombstone was taken from a nearby memorial for victims of police violence that featured many similar tombstones representing people killed by police.

Diaz said efforts to improve the culture at SPD have already started bearing fruit. “In a short time, our OPA complaints have seen a drastic reduction compared to four years ago and our use of force has seen a drastic reduction, a 40 percent reduction,” Diaz said. “And up until yesterday, we had not had an officer involved shooting involving a person in 13 and a half months.” On Tuesday, police shot a man in downtown who was suspected of stabbing another person a few blocks away. That shooting is currently under internal investigation, according to the department.


Arbitrator Reinstates Deputy Who Fatally Shot Driver; SPD Officer Fired for “Inexcusable” Twitter Posts Loses Appeal

1. A private arbitrator has reinstated a King County Sheriff’s Office deputy who was fired in 2021 after fatally shooting a man who was driving a stolen truck with a dog inside.

The deputy, George Alvarez, was driving an unmarked Yukon SUV and in plainclothes when he and his partner, Josh Lerum, began following a stolen truck driven by Black Diamond resident Anthony Chilcott.

According to a report from the county’s Office of Law Enforcement Oversight, after seeing the truck parked on the side of the road, Alvarez T-boned Chilcott’s truck with his Yukon, running it up onto some nearby boulders. When Chilcott tried to escape, the two deputies, whose clothes did not identify them as law enforcement, smashed out both of his front windows with sledgehammers, pistol-whipped him, and shot him in the head. The entire incident, from the initial pursuit to Chilcott’s death, took less than four minutes.

King County agreed to pay a $2.5 million settlement to Chilcott’s family in 2021. Then-Sheriff Mitzi Johanknecht fired Alvarez, but not Lerum, saying Alvarez had escalated the situation by pulling up on Chilcott when he was stopped, sticking his hand in the truck, and “continuing to break and pull out windows” when he knew backup was on the way, resulting in “in a series of bad tactical decisions.” Alvarez, according to a 2021 article in the Seattle Times, had shot at least five people while on duty in the past, and was the subject of a previous criminal investigation for “roughing up” an informant.

A spokesperson for King County said the county was “disappointed” in the reversal and “stands by its original disciplinary decision. … Given the arbitrator’s order and consistent with our collective bargaining agreement, our Human Resources team will be working with the Sheriff’s Office to determine the next steps for this individual to safely return to service, including determining what additional training is necessary.

The decision by California arbitrator Najeeb Khoury, which reinstates Alvarez without back pay, was posted on the state Public Employee Relations Commission’s website on Monday.

In the decision, the arbitrator argues that the sheriff’s department agreed that Alvarez had failed to de-escalate the situation as he had been trained to do, but said the sheriff’s department had given Alvarez “mixed messages” by encouraging that officers use de-escalation (which the decision describes as “a relatively new concept” at the time of the 2019 shooting) while simultaneously praising the SWAT team member for being a “hunter” who caught “bad guys.”

Additionally, the arbitrator said firing Alvarez was out of proportion to his “failure to perform up to standards on one occasion” and that his decision to use force was understandable given the circumstances.

“Sheriff Cole-Tindall has discretion to determine duty assignments, and the Sheriff does not intend for this individual to return to SWAT duties,” the county spokesperson said. “Deescalation training at the county has evolved since the original incident, and the latest versions help ensure that deputies are better able to respond to situations with best practices.”

According to a 2020 study that examined hundreds of arbitration cases over 15 years, independent arbitrators overturned or reduced police discipline more than half the time, and ordered police departments to rehire officers they terminated 46 percent of the time.

Tamer Abouzeid, the director of King County’s Office of Law Enforcement Oversight, told PubliCola that the decision—which the county has no authority to overturn—highlights the need to reform state law governing arbitration. “Only the state legislature has the power to create consistent standards around police misconduct investigations and discipline, including empowering oversight agencies and department chiefs to hold officers accountable,” he said.

“The decision also highlights that the Sheriff’s Office is using an unnecessarily high burden of proof in making findings, Abouzeid continued, using the high “clear and convincing” evidentiary standard to determine whether an officer violated policy, rather than “the widely accepted ‘preponderance of the evidence’ standard.” This, unlike the arbitrator’s ruling, is a matter of policy and can be changed. “While we do not know whether that would have led to a different result in this case, I hope this decision can act as an impetus for changing the burden in all administrative investigations” to a preponderance of the evidence, Abouzeid said.

2. Another police officer who was fired for his behavior, Seattle police officer Andrei Constantin, had his appeal dismissed on Tuesday after he failed to show up for his hearing in front of the Public Safety Civil Service Commission. The dismissal means that SPD Chief Adrian Diaz’s decision to fire Constantin over his “inexcusable” social media posts will stand.

The PSCSC, a three-member appointed body that hears appeals from police and firefighters who were fired, demoted or suspended, had blocked out two full days for the hearing. According to PSCSC chair Stacy Connole, who spoke briefly on Tuesday, the commission had “quite extensive discussions” about the schedule for the hearing and had tried to call, text, and email Constantin but was unable to reach him.

According to the SPD disciplinary action report explaining why Constantin was fired, the officer used an anonymous Twitter account to post dozens of “extremely unprofessional, offensive, derogatory, and entirely unacceptable” tweets that “celebrated violence against protesters, ridiculed human beings who were injured or killed, taunted the family members of deceased individuals, and publicly accused SPD of hating its employees, blamed victims of assault, appeared to celebrate a homicide, and stated George Floyd ‘got justice.’” In one case, he told the mother of an activist who was murdered, “Rest in piss bitch.”

Constantin had been the subject of at least nine other disciplinary complaints when he was fired, and received an eight-day unpaid suspension after shattering the driver-side window of someone’s car while they were sitting at a gas station.

Case of Cop who Killed Pedestrian in Crosswalk Referred to King County Prosecutor

The intersection of Dexter and Thomas, where police officer Kevin Dave struck and killed 23-year-old student Jaahnavi Kandula in January.

By Erica C. Barnett

The Seattle Police Department, which could soon be released from a federal consent decree imposed in 2012, has been noticeably silent about the outcome of its internal investigation into officer Kevin Dave, who struck and killed a pedestrian, Jaahnavi Kandula, in January while on his way to the scene of a drug-related 911 call nearby.

However, PubliCola has confirmed that SPD has referred Dave’s case to the King County prosecutor’s office, which is reviewing the case and will decide whether to charge Dave with a crime. According to the prosecutor’s office, it’s unlikely a decision will come before July.

SPD declined to respond to questions; a spokesperson said the department had “no updates or timelines in regards to the investigation of this case.”

The department has claimed that the officer, Kevin Dave, was responding “as an EMT” to an overdose; separately, both SPD and the Seattle Fire Department have said the reason Dave needed to get to the call quickly is that people coming out of opioid overdoses can behave erratically and violently, threatening the safety of first responders.

However, the audio of the 911 call, which PubliCola received through a records request, revealed that the caller had used cocaine, not opiates, and was breathing heavily but calm when he called 911 to report that he was “freaking out.” He met medics from the fire department outside his apartment and declined additional care.

The King County Prosecutor’s Office was not immediately able to say whether SPD’s referral was statutory—meaning the department was required by law to send it to prosecutors—or a case where the department believes the officer may have committed a crime. SPD declined to provide any information about the case, saying they had “no updates.”

Back in February, the Community Police Commission asked Police Chief Adrian Diaz to explain why Dave engaged in “emergency” (high-speed) driving; Diaz responded that Dave was “responding to assist the Seattle Fire Department with an overdose according to established interdepartmental protocols.”

In a followup letter on June 9, prompted in part by a KUOW report revealing that few officers have taken the emergency driving courses required by a new state law loosening restrictions on police pursuits, the CPC’s co-chairs asked Diaz for details about how many officers have completed emergency driving courses and to explain why the department’s requirements for emergency vehicle operations (what Dave was purportedly doing when he struck Kandula) are lower than its policies for pursuing a person who is attempting to flee.

SPD previously confirmed that it was conducting a criminal investigation into Dave. Earlier this year, the department “categorically” rejected PubliCola’s public disclosure requests for documents related to the investigation, citing the fact that the investigation was still ongoing. A spokesperson did not respond to our question about when we could file another request without it, too, being “categorically” rejected. Since the referral to the prosecutor’s office suggests that SPD’s internal investigation may be complete, PubliCola has filed another records request.

Dave is still employed by SPD.

City Asks Judge to End Consent Decree; Outstanding Issues Include Protest Response and Accountability

By Erica C. Barnett

The city of Seattle and officials from the US Department of Justice asked US District Judge James Robart to release the Seattle Police Department from federal oversight under a 2012 agreement known as the consent decree yesterday, asking Robart to find SPD in “substantial compliance” with the consent decree with the exception of two areas—crowd control and accountability—that the city says will finish addressing this year.

“After more than a decade of cooperation, the United States and the City of Seattle… agree that the Seattle Police Department (SPD) has implemented far­-reaching reforms and achieved remarkable progress through the hard work and dedication of SPD officers and civilian staff at all levels of the organization and from extensive contributions by community members and leaders throughout Seattle,” the draft agreement says. Specifically, the motion cites improvements SPD has made to its policies on use of force, investigative (“Terry”) stops, bias-free policing, and supervision of officers.

The city has been under federal oversight since 2012, after a 2011 DOJ investigation found police had engaged in unconstitutional policing practices, including bias and excessive use of force, and that it lacked meaningful oversight and accountability mechanisms to address unconstitutional behavior by officers.

Since then, Judge Robart has repeatedly declined to rule that the city has complied with terms requiring the department to address the problems outlined in the consent decree, citing incidents of excessive force and the city’s failure to implement an effective accountability system.

In 2019, Robart ruled the city out of compliance with the consent decree after the council adopted, and then-mayor Jenny Durkan approved, a contract with the city’s main police union, the Seattle Police Officers Guild (SPOG), that conflicted with historic police accountability legislation the council adopted the previous year.

And then, in 2020, police responded to protests against police bias and brutality by using force against protesters and tear-gassing Capitol Hill, prompting more than 19,000 complaints against the department.

The risk of a victory lap is obvious: The next time SPD uses force inappropriately or fails to be transparent about potential officer misconduct (as it has, most recently, with the January death of pedestrian Jaahnavi Kandula, who was struck by patrol officer Kevin Dave), the department could find itself back in Judge Robart’s crosshairs.

Although the agreement notes that the end of the consent decree will not end the department’s commitment to “continuous improvement” and ongoing reform, separate memos and statements from city officials make yesterday’s proposed agreement sound like a conclusive vote of confidence in SPD’s commitment to bias-free policing, accountability, transparency, and reasonable use of force going forward.

For example, the city’s official memo supporting the agreement, signed by City Attorney Ann Davison, calls SPD “dramatically transformed”—a department whose use of force “now presents a night-and-day contrast to the practices found by DOJ in 2011.” SPD’s dramatic use of force against people protesting against police violence in 2020 represented “one, temporary lapse” in the department’s reduced use of force in general, the memo says, and overall, “SPD’s hard work over the past decade has improved outcomes for the people of Seattle.”

The risk of a victory lap is obvious: The next time SPD uses force inappropriately or fails to be transparent about potential officer misconduct (as it has, most recently, with the January death of pedestrian Jaahnavi Kandula, who was struck by patrol officer Kevin Dave), the department could find itself back in Judge Robart’s crosshairs. Robart has demonstrated repeatedly that he’s willing to withhold a finding of full compliance and send SPD back to square one in the past, most recently after the 2020 protests, so overconfidence is probably ill-advised.

Many of the memos and statements supporting the new agreement, including a declaration by the city’s labor negotiator, Danielle Malcolm, explicitly mention the ongoing contract negotiations between the city and SPOG, highlighting the significant changes SPOG’s sister organization, the Seattle Police Management Association, accepted as part of their new contract in 2022. Those reforms included a higher burden of proof for arbitrators to overturn misconduct decisions; a change in policy that makes it harder for arbitrators to overturn the police chief’s disciplinary decisions, such as firing an officer for misconduct; and improved transparency into the arbitration process.

The implication is that any contract the city signs with SPOG will need to include similar reforms. However, the proof will lie in the contract itself; again, the city council, which included now-Mayor Bruce Harrell, adopted reforms in 2017, then immediately abandoned many of them in the SPOG contract it signed the following year.

The proposed short-term agreement acknowledges the police department still needs to make progress on “ensuring sustainable accountability and improving policy and practices for using force in crowd settings,” and commits SPD to adopting a revised crowd management policy and “alternative reporting and review process for force used in crowd settings”; in addition, the city will hire a consultant to make recommendations about the accountability system.

Many of the memos and statements supporting the new agreement, including a declaration by the city’s labor negotiator, Danielle Malcolm, explicitly mention the ongoing contract negotiations between the city and SPOG, highlighting the significant changes SPOG’s sister organization, the Seattle Police Management Association, accepted as part of their new contract in 2022.

According to a statement by SPD COO Brian Maxey, the changes to crowed management will include things like “meeting with event organizers ahead of a protest, maintaining a low-profile (less visible police presence) when feasible, and using social media to communicate information to protestors in real time.” Maxey also cites new officer trainings, including Before the Badge and a system called Outward Mindset, which was developed in Utah by the LDS-affiliated Arbinger Institute.

In a statement, Seattle City Councilmember and public safety committee chair Lisa Herbold said, “When I share the data that demonstrates SPD’s reduced rates of force use, I often hear concerns about growing racial disparities. I appreciate SPD’s commitment in the Agreement to identify, study, and work towards ‘eliminating policies and practices that have an unwarranted disparate impact on certain protected classes’ and ongoing work to ‘develop a plan that details the technologies, policies, and practices that it will seek to employ to reduce disparities in policing.'”

Critics of the consent decree have argued that it has, paradoxically, prevented the city from adopting reforms because substantial changes to the way the department functions, such as funding cuts or proposals to replace some police with civilians, would require approval by the federal monitor.

Once the consent decree is lifted in its entirety, which could happen later this year, the city’s Office of the Inspector General (established during the consent decree) will take over the bulk of the responsibility of ensuring SPD is complying with its commitments to reform—the so-called pillars of the consent decree.

This work could include providing more transparency into the work of the Force Review Board, which reviews serious uses of force, and expanding the scope of its investigations; doing a deeper dive into potential bias during stops and detentions; and making policy recommendations. The agreement notes that Harrell’s budget included funding for three new staffers at OIG—positions that will become permanent after the consent decree is lifted.

“Authentic” Harrell Doubles Down, Public Safety Director Myerberg Reassigned, Baseless Complaint Claims PubliCola Engaged in Pro-Cop “Quid Pro Quo”

1. Mayor Bruce Harrell doubled down yesterday on comments he made during a Seattle Police Department roll call that were subsequently leaked to Jason Rantz, a host at the conservative station KTTH, telling reporters he stood by “whatever people said I said.” According to quotes from the meeting, Harrell blamed at “inexperienced” city council members, the King County Regional Homelessness Authority, and service providers for the “mess” the city has become—calling out the KCRHA, in particular, for “working against” Harrell by publicly opposing encampment sweeps.

“I’ve been in the city my entire life. And there’s one thing about me, is I am authentic,” Harrell said. Gesturing toward his wife, Joanne, who was standing behind him, he continued, “[I’ve] been with my best friend and wife, we’ve known each other for close to four decades. By the way, she’s a tough critic. But she’s seen me say the same things over and over and over again. So it’s time to stop playing small ball. Let’s play big ball. Let’s attack racism. Let’s attack police reform. Let’s revitalize our downtown. That’s big ball.”

Harrell declined to say whether he would actually propose defunding the regional homelessness authority, which receives the bulk of its funding, about $70 million, from the city through its annual budget process. “We’ll present our budget in a few weeks, but you will see our clear recognition of a lot of the great work they are doing,” Harrell said. “You will see continued support. What I owe to the leaders in RHA is my expectations. And I think they share my concern that we have to get this work done. … I’m still very optimistic. I’m very optimistic. But I’m not going to look at any of the work we’re doing in the city through rose-colored glasses.”

Harrell has been publicly and privately critical of the KCRHA and its director, Marc Dones—complaining publicly, for example, about the agency’s request for city and county funding that would nearly double its existing budget to fund a slew of new projects. Privately, Harrell has reportedly questioned the need for the authority, which still lacks meaningful buy-in from suburban cities and is entirely funded by Seattle and King County.

On Wednesday, Harrell said removing Myerberg from his position was just part of a six-month evaluation that involved “moving people around,” but declined to say more about what Myerberg will do in his new role. “He’s still part of our strong part of our administration and literally sits 40 feet from my desk. We’re looking forward to our continuing partnership,” Harrell said.

2. Harrell’s erstwhile director of public safety, former Office of Police Accountability director Andrew Myerberg, has been reassigned to a vaguely defined new position—”director of special projects”—where he will reportedly head up efforts to get the city out from under a consent decree between the US Department of Justice and the Seattle Police Department.

Harrell has reportedly criticized Myerberg for his lack of connection to communities impacted by police policy, such as the ill-advised decision (supported by Harrell’s other chief public safety advisor, strategic initiatives director Tim Burgess) to crack down on “disorderly conduct,” including music, smoking, and shouting, at Third Avenue and Pine St. downtown.

On Wednesday, Harrell said removing Myerberg from his position was just part of a six-month evaluation that involved “moving people around,” but declined to say more about what Myerberg will do in his new role. “He’s still part of our strong part of our administration and literally sits 40 feet from my desk. We’re looking forward to our continuing partnership,” Harrell said.

Asked what qualities he’s looking for in Myerberg’s replacement, Harrell said, “We want a person who understands constitutional policing, seven minute response times, [and is] willing to do the hard research on what’s working in other cities, issues dealing with gun regulations, just a good director of public safety.”

3. Local police accountability gadfly Howard Gale has filed a formal complaint with the Seattle Ethics and Elections Commission alleging a “quid pro quo” conspiracy between me (Erica Barnett) and City Councilmember Lisa Herbold and/or the city’s Office of the Inspector General, which reviews police misconduct investigations to publish information flattering to the OIG and Herbold and, by extension, the Seattle Police Department.

The “whistleblower complaint” asserts that either Herbold or someone at the Office of Inspector General leaked a copy of a report to me, and only me, in advance, in exchange for my agreement to provide flattering coverage. My straightforward piece describing the contents of the external report, which included recommendations for avoiding improper certification of investigations into police misconduct, is here.

“I believe this is a clear ethical violation because it was done with the intent to avoid negative coverage for both the OIG and CM Herbold, and done for professional mutual benefit (quid pro quo),” the complaint says.

The only evidence for this utterly baseless claim is that Gale contacted nine unidentified “journalists” and “none can find any notice of the independent audit being released/available.”

The reality, as it often is with conspiracy theories, is much more mundane. The OIG released an embargoed copy of the report to a list of reporters, including me, on the afternoon of July 27, one day before the office released the report publicly.

An embargo is an agreement between journalists and a person or entity releasing information, such as a government agency or advocacy group, that journalists will get the information in advance in exchange for agreeing not to publish it until a certain time; such agreements are extremely common and allow journalists to absorb the information (for example, details in a technical briefing or lawsuit), ask clarifying questions, and write their stories before something gets released publicly. I may have been the only one who wrote about the report when the embargo lifted, but lack of coverage is not evidence of a conspiracy.

Report on Police Oversight Office Recommends Changing Process for Reviewing Misconduct Decisions

A protester talks with a Seattle police officer on May 31, 2020 (Flickr: Derek Simeone; Reproduced with a Creative Commons license).

By Erica C. Barnett

An external report commissioned by the Seattle Office of the Inspector General (OIG) after an investigator was caught approving, or certifying, investigations into police misconduct without proper review found multiple issues that led to poor oversight and communications within the office. But the report also concluded that most of the issues have been addressed since the incidents that prompted the review.

“Nobody likes to get a bad report card,” Inspector General Lisa Judge told PubliCola. “I believe that audits and reports like this that highlight areas for improvement and change make people and organizations better. This is the work that OIG does, so if I believe in it to help other organizations be better, I have to believe in it for myself and my organization.”

The OIG—a city office established by Seattle’s 2017 police accountability ordinance—is one of three entities charged with overseeing police accountability in Seattle; the others are the Community Police Commission and the Office of Police Accountability, an independent office inside the Seattle Police Department.

When someone files a complaint alleging police misconduct, the OPA reviews the complaint and decides, based on interviews and evidence, whether the complaint is valid and if it merits discipline; the police chief is in charge of deciding whether and how to discipline an officer. The OIG’s role in this process is to oversee the OPA and make sure their decisions are fair and valid.

The report, conducted by Los Angeles-based OIR Group, makes two substantive recommendations, along with nine recommendations that deal with management practices, employee wellness, and communications between the OIG and OPA.

According to the report, OIG moved Finnell out of what was then a two-person investigations unit in response to the complaint, “but no formal action was taken to investigate or address the allegations. Most significantly, there was no formal ‘course correction’ with the identified employee to ensure that Office expectations would be met for any future case reviews.”

First, it recommends that the office return to its previous practice of investigating reports the OPA closes without investigation by designating them as “Contact Log”—a determination that indicates that no officer was involved in an incident or that OPA doesn’t have enough information to investigate—individually, rather than doing quarterly audits of a sample of cases. This year, the OIG began reviewing individual contact log determinations after the fact, and will begin doing these reviews in real time next month. On Monday, city council public safety committee chair Lisa Herbold praised this new policy in her committee.

In 2021, the OIG’s annual report said that the office agreed with OPA’s “contact log” determinations 81 percent of the time, although that average reflected a dramatic drop, to 49 percent, after it switched to doing quarterly samples instead of individual reviews midyear. Many of the cases that were classified this way involved allegations of “serious misconduct,” including charges of bias and use of force during widespread protests against police brutality in 2020. The OIG made no judgment about whether the complaints themselves were valid or would have led to discipline.

Second, it recommends that OIG should have the authority to weigh in on OPA’s decisions before they go to SPD and to  what kind of discipline is appropriate for cops who violate policy or the law. “[I]nvolving the OIG in this process and requiring regular reporting on what it is finding would result in a level of transparency regarding this aspect of SPD’s accountability system that currently does not exist,” the report says.

The report itself came out of a series of complaints involving an investigator who was signing off on cases without reviewing them thoroughly. In 2020, an OIG investigator raised unspecified issues about another investigator, Anthony Finnell, and he was reassigned to another function that did not involve reviewing OPA investigations.

According to the report, after Finnell moved out of investigations, “no formal action was taken to investigate or address the allegations.  Most significantly, there was no formal ‘course correction’ with the identified employee to ensure that Office expectations would be met for any future case reviews.”

Later, apparently without Judge’s knowledge, Finnell was moved back to the investigations unit and started certifying cases was certifying OPA cases—determining that they were “thorough, timely, and objective,” as required by the 2017 ordinance—without looking at all the evidence.which eventually prompted a review of the unit that revealed a “broader problem” with investigations.

The South Seattle Emerald reported on Finnell’s certification of cases without reviewing evidence, and the fact that he continued to work in the investigations unit, last year.

Those issues surfaced in 2020 and 2021, but they were not the first time investigators had been discovered improperly certifying cases. In fact, another former employee who has since become an outspoken critic of OIG’s practices was fired by OIG in 2019 after certifying cases without fully reviewing evidence and changing dates to meet certification deadlines, multiple sources say.

“The buck does stop with me when it comes to the credibility of OIG,” Judge told PubliCola. “To the extent somebody working in my office wasn’t carrying out their duties in a way that fosters trust, [that] is not acceptable, so that’s why it was important to me to have an external person looking at this.”

The report refers repeatedly to “personality” clashes within the office between investigators who had very different approaches to the OPA and its work, ranging from adversarial to accommodating, and tremendous burnout and pressure to issue judgment on the OPA’s decisions in cases filed during the 2020 protests. “Within the office, tension among the Investigations team was palpable, with members hardly speaking to each other and accusations about one member’s work ethic and integrity being raised with management,” according to the report.

Many of these conflicts reportedly arose over whether to approach OPA with suspicion and confrontation—an approach that may turn up issues others miss but can foster ill will—or trust and accommodation, an approach that builds respectful working relationships but can lead to laxer oversight. At least four of the people who were involved in various iterations of this conflict, including Finnell, are no longer with the office.

Retired judge Anne Levinson, who served as the civilian auditor overseeing OPA before the OIG was established in 2018, said the report reveals the need for oversight agencies to continually examine their work and change their policies in response to new information and evolving expectations.

“Just as the oversight system works to ensure that police leadership regularly examine their policies, systems, and training when incidents, complaints, audits, or other indicators flag a need for improved practice, oversight officials too must adapt, examine, and improve,” Levinson said, pointing to recent legislation addressing complaints naming the police chief, the use of body-worn video, and reforms to the county’s inquest process. “I view this kind of report not as indication that the sky is falling, but rather as a good thing—OIG leadership recognized they could do better, and they asked for outside review and guidance.”

“In addition, with the appointment by the Mayor of the next OPA Director, the report is well-timed as the agencies can level-set and refine approaches to best follow through on these recommendations.”

In addition, Levinson noted, Mayor Bruce Harrell just appointed a new OPA director, Gino Betts, to replace former director Andrew Myerberg, who is now a public safety advisor to Harrell. “The report is well-timed, as the agencies can level-set and refine approaches to best follow through on these recommendations,” she said.

Most of the staff mentioned in the report are no longer with the OIG, and the investigations staff has grown from two investigators to three investigators plus a supervisor.

Council IDs Funds for 911 Alternative Pilot, Prosecutor Won’t Pursue Charges Against Police Who Killed Lyles

1. City council members Lisa Herbold and Andrew Lewis, who have advocated for creating an alternative response system for 911 calls that do not require police, sponsored a change to the city’s 2022 budget that sets aside $1.2 million originally budgeted for former mayor Jenny Durkan’s “Triage One” program to pay for a future “alternative response model” for these calls.

Although the money is currently frozen—Mayor Bruce Harrell’s office wants to reserve it to help backfill an anticipated budget shortfall next year—the amendment moves the money out of the Seattle Fire Department in case the council and mayor’s office can agree on a pilot proposal this year.

As we’ve reported, the city has backed away from its initial commitment to quickly fund alternatives to traditional police-based 911 response, made in the immediate aftermath of citywide protests against police violence sparked by the murder of George Floyd in 2020, and recently outlined a process for standing up a new public safety department in 2024. Council members have expressed frustration about the slow timeline, arguing that the city could create a pilot program now and see how it goes, rather than waiting years to start.

Using the cost estimates for Triage One, Lewis had council staff create a spreadsheet with a very rough estimate of what a pilot civilian response program, along the lines of CAHOOTS in Eugene, OR or the STAR program in Denver, would cost. The total for a three-person pilot—”basically one van,” Lewis said—came out to about $940,000, or about one-quarter of one percent of the $355 million the city budgeted for the police department last year.

Lewis noted that the cost could be lower if, for example, the new team used existing city cars instead of buying a $100,000 new custom Ford F150 (Durkan’s Triage One budget called for three) or if they found space that cost less than the previous estimate of $20,000 a month.

Ultimately, it will be up to Harrell’s office to decide whether they want to spend the money on a pilot program for new responders, or to help fill the city’s budget gap, which could total well over $100 million. The city budget office will release its latest revenue forecast next month.

2. King County Prosecutor Dan Satterberg announced Thursday that he would not prosecute the two police officers who shot and killed Charleena Lyles in her apartment in 2017, citing the fact that the law in place at the time effectively exonerated officers who acted “without malice and with a good faith belief that [a shooting] is justifiable.”

In a memo explaining his decision not to prosecute, Satterberg cited testimony during the inquest from experts who agreed “that the use of deadly force was necessary given the circumstances.” Hearing similar testimony, Satterberg wrote, “a criminal jury would likely conclude that the use of deadly force was necessary.”

An inquest earlier this month found that the officers did not violate the law or SPD policies on use of force when they killed Lyles, a 31-year-old Black woman whose history of mental illness was known to both officers, in 2017.

After voters passed Initiative 940 in 2018, the state legislature removed the “malice” standard and required officers to go through additional training in de-escalation and mental health.

In a memo explaining his decision not to prosecute, Satterberg cited testimony during the inquest from experts who agreed “that the use of deadly force was necessary given the circumstances.” Hearing similar testimony, Satterberg wrote, “a criminal jury would likely conclude that the use of deadly force was necessary.”

The inquest process itself is designed to make very narrow determinations about responsibility; in Lyles’ case, the six-person jury was only instructed to answer “yes,” “no,” or “unknown” to a list of 170 factual questions. King County reformed its inquest process in 2018 to give families access to an attorney and to give inquest juries more latitude in deciding whether officers followed department policy. The inquest into Lyles’ shooting was only the second inquest, and the second to find a police shooting justified, since the state supreme court allowed inquests to restart under the new rules last year.