SPD Chief Diaz Overturns OPA Decision, Declines to Specify Discipline

by Carolyn Bick

On June 1, 2020, people took to the streets of Seattle to protest the murder of George Floyd and to renew calls for racial justice. These mass protests, which would continue throughout 2020 and into early 2021 in varying forms, had begun just a few days before, on May 29, following Floyd's murder on May 25, 2020.

These protests were met with a heavily armed police response that included Seattle Police Department (SPD) officers using blast balls, tear gas, pepper spray, full-body takedowns, arrests, and more against protestors in numerous instances that have been documented in hundreds of videos, photographs, and audio recordings shared across several different social media platforms and reported on by different media outlets.

In response to the thousands of complaints filed against SPD officers, the City of Seattle's Office of Police Accountability (OPA) created a special dashboard to keep track of the status of demonstration-related complaints. It has been releasing its decisions in batches since late 2020. Many of these complaints allege SPD officers used excessive force against protestors and violated multiple policies in the SPD manual. Thus far, few of the OPA's decisions in these cases have resulted in serious sustained allegations against officers.

But the outcome of one of the complaints that arose out of SPD actions at the large June 1, 2020, protest proved to be an exception: the OPA sustained two major allegations against SPD officer John Brooks for his actions in what would come to be known as "the pink umbrella incident." The OPA specifically found that Brooks should not have given orders to disperse the crowd, nor should he have escalated dispersal techniques to include the use of blast balls and pepper spray. In the section of the decision in which it records suggested discipline, the OPA writes, "Disciplinary decision pending before the Chief. [Case Closed Summary] CCS will be updated when discipline is final."

The OPA handed down its decision to sustain some allegations in the pink umbrella case in late December 2020. But in a May 12, 2021, letter to Mayor Jenny Durkan and Seattle City Council President Lorena Gonzalez, SPD Interim Chief Adrian Diaz effectively overturned the OPA's decision, downgrading the finding to "Not Sustained — Training Referral."

The OPA's manual states this about a training referral on page 40: "When a 'Not Sustained' finding is recommended and there may have been a minor violation of policy, but it was not willful and did not rise to the level of misconduct, OPA can require the employee's chain of command to provide appropriate training, counseling and/or review the situation for deficient policies or inadequate training. This encourages the chain of command to address well-intentioned mistakes through education and counseling."

Diaz's decision — which comes months after the OPA handed down its findings, thus appearing to indicate that Brooks has received no discipline whatsoever in the time between the OPA's decision and Diaz's decision — means that Brooks may ultimately only need to complete a few hours of training, if that, per the OPA's manual.

In his letter, while he agrees that "the circumstances were not such that dispersion was warranted at the time," Diaz takes the blame away from Brooks. But instead of clearly placing it higher within the SPD's chain of command — in other words, on someone else's shoulders — Diaz is ambiguous about who he believes is responsible, writing instead: "There is little question that the events of last summer generally posed considerable challenges to the Department and exposed flaws in our command structure as we attempted to manage the multiple events that were occurring simultaneously in different locations around the city.

"Decisions were made at levels of command above the Named Employee that bore directly on the Named Employee's action and thus actions taken by officers in the field. As a simple matter of fairness, I cannot hold [Brooks] responsible for circumstances that were created at a higher level of command authority and for carrying out decisions made at a higher rank. For that reason alone, I would change the finding," Diaz writes.

Here, Diaz does not directly attribute the actions or decisions of a single higher-ranking employee. Instead, he invokes the environment in which all of SPD was working — one of "considerable challenges" that saw heavily armed police facing off with civilian protestors for nights on end in multiple locations — and offers a brief moment of reflection regarding the "flaws in [SPD's] command structure."

Diaz then goes on to attribute Brooks' actions to higher-ups' decision-making processes (the latter in the passive voice) and ultimately says that the blame rests on these higher-ups. However, it is unclear whether these "levels of command above" Brooks that Diaz references exist solely within the SPD or also within City offices, such as that of Mayor Jenny Durkan and the Seattle City Council, as these City entities were also actively making decisions over the course of the protests.

In the next section, Diaz appears to make his feeling known that other City offices also share some of the blame for Brooks' actions: "[T]he events of this past summer, occurring in the midst of a deadly pandemic where staffing and communications were already challenged, were unprecedented in their scope, duration, and in some instances, violence and intensity. As was the case in jurisdictions across the nation, I believe we must acknowledge that these events overwhelmed not just the Seattle Police Department's capacity, but indeed the City's capacity, at all levels of government — including planning, command, and operational levels.

"Certainly, as evidenced by policy revisions recently approved by the federal court, reflecting in large part tactical adaptations in the field guided by the Named Employee, lessons have been learned; I have no doubt that as reviews continue on parallel tracks, and as additional facts and circumstances become understood, there will be ongoing opportunity to question the decisions and tactics of many," Diaz writes. He leaves "many" unspecified, punctuating the previous sentiment that the City "at all levels of government" had been overwhelmed by the combination of the COVID-19 pandemic and the protests.

Diaz goes on to state that "mistakes were made" — again, using the passive voice to describe unspecified people's actions — before saying that the SPD "did not have the same benefit of time, video compilations, after-the-fact reporting, and the interviews of many in making real-time decisions in the midst of the unprecedented circumstances at hand."

Diaz assures the reader that "[t]his observation is by no means intended to downplay the seriousness or the impact of decisions made" — again, passive voice, no specific decision-maker — "it is simply to note that under the circumstances, based on the information and equipment available at the time, including life-safety considerations known and foreseeable, I do not believe I have a basis from the record before me to sustain the allegation …"

But this decision shows that, ultimately, the SPD can simply choose to throw out its oversight entity's decisions, thus raising questions about what the OPA exists for in the first place.

It appears that this decision also caused grave concern within the ranks of the Community Police Commission (CPC). The CPC issued a formal statement a few hours after Diaz's letter became public, saying that it was concerned about the ramifications of Diaz's decision, which include an erosion of trust in the SPD and the entirety of the City's police accountability system (which has already been facing widespread backlash, most often on social media platforms like Twitter).

"In his decision to overrule the [OPA], Chief Diaz states that officers were overwhelmed and uses the fact that the situation was complex as justification for this police officer's use of force, despite the fact many officers involved in that same incident did not commit similar misconduct," the CPC writes. "He says the decision to meet peaceful protesters with force was made at a 'higher level of command' but does not detail how he will be holding that higher level of command accountable."

It appears, too, that the irony of Diaz's decision was not lost on the CPC, as the CPC's statement continues: "In doing so, he denies justice to thousands of Black Lives Matter protesters who marched against police brutality only to be met by indiscriminate police violence."

The CPC continues, pointing out that "SPD has repeatedly pointed to its cooperation with ongoing OPA investigations as proof of its commitment to accountability" and that there have been "tens of thousands of complaints against SPD over the past year, but only a handful of investigations have met the high bar OPA has set to find police officers have committed misconduct," referencing the fact that the OPA rarely sustains allegations against officers.

"This case met that high bar. Chief Diaz's decision to overturn OPA's decision is detrimental to community trust in SPD and Seattle's entire police accountability system," the CPC writes.

The CPC closes by writing that "This decision illustrates why the [CPC] has repeatedly called for a ban on SPD's use of weapons like tear gas and blast balls — since even when it is clear an officer abused these weapons, SPD refuses to hold them accountable.

"Finally, the CPC was not given any advance notice of Chief Diaz's decision. We were informed through SPD's social media post. In the spirit of partnership, notice of this decision in advance as envisioned by the Accountability Ordinance would have been appropriate."

Converge Media journalist Omari Salisbury, who took the widely-shared video of the pink umbrella incident, contacted OPA Dir. Andrew Myerberg to get his take on Diaz's decision. Salisbury shared those emails with the Emerald.

In his first email, Salisbury asks, "Wondering if I can at a minimum get a written statement and maximum get a recorded statement or a few minutes live in the 11am hour tomorrow regarding Chief Diaz' decision to challenge your findings on the Pink Umbrella?"

Myerberg responds: "If it's okay, I'll provide a written statement.

"OPA stands by its decision in this matter and believes that its findings are supported by the evidence. However, as set forth in the Accountability Ordinance and while a rare occurrence, the Chief of Police has the ultimate right to disagree with OPA in full or in part and/or to decline to impose discipline as happened here. Given this, even though I do not concur in the rationale or result, I accept Chief Diaz's decision as within the scope of his authority," Myerberg writes, before inviting Salisbury to ask any other questions.

Salisbury asks two: "Do you feel this decision weakens OPA in the view of the public, a public that already feels OPA has no teeth?" and "Who are the people impacted supposed to hold accountable?"

Myerberg candidly responds: "I don't know the answer to your first question. I expect that it will weaken the view of OPA for some. However, it's not a secret that OPA cannot, itself, impose discipline. I think we discussed this exact issue during the first interview we did together. If anything, this case is a good example of this limitation in practice and will provide community members insight into the way the accountability system functions and, perhaps, how it should function in an ideal state.

"With regard to your second question, people who were affected by this incident will need to seek accountability through other mechanisms, including the civil court system, the political process, and advocating for changes in policies and local laws," Myerberg closes.

Salisbury also shared a brief, two-paragraph response from the Office of the Mayor, which he received late in the day on May 13.

"The Mayor fully expects the Chief to hold the appropriate officers accountable for the disproportionate use of force that OPA found occurred that day," the response reads. "She will be further reviewing the report from the OPA and further discussing with Chief Diaz and OPA. She understands from the Chief that while he disagrees with the OPA findings as to this particular officer, the matter is far from closed."

The response closes: "Like so many in Seattle, the Mayor watched this event on the live feed, and immediately expressed her concerns about the disproportionate use of force, tactics, weapons and tools used by SPD. The Mayor met the day after this event with OPA and [the Office of Inspector General] and requested that they do a thorough investigation and analysis of both actions of individual officers and of the Department response as a whole."

📸 Featured Image: Interim Seattle Police Chief Diaz (Photo: Susan Fried)