Investigation Implicates 2 Officers in Jan. 6 Riots, Tests Limits of Subpoena Power

by Paul Kiefer

(This article originally appeared on PubliCola and has been reprinted under an agreement.)

In findings released on Thursday afternoon, Seattle's Office of Police Accountability ruled that two of the six officers who attended former President Donald Trump's "Stop the Steal" rally on January 6 violated department policy and federal law by trespassing on the grounds of the U.S. capitol while insurgents stormed the legislative chambers inside. The officers will now face Interim Seattle Police Chief Adrian Diaz, who will decide how to discipline the pair for their breach of policy; their supervisors have recommended that Diaz fire both officers.

The case dealt a blow to SPD's already suffering public image, but it also gave the OPA an opportunity to test the limits of its investigative power over members of Seattle's largest police union: the Seattle Police Officers Guild (SPOG). An ongoing dispute between SPOG, the OPA and Interim SPD Chief Adrian Diaz has re-ignited an internal struggle over the OPA's ability to subpoena information from the department's rank-and-file officers; the dispute could lay the groundwork for the OPA to finally secure subpoena power during the city's upcoming contract negotiations with SPOG.

The OPA investigators set out to determine whether any of the six officers known to have attended the Jan. 6 rally broke federal law and SPD policy by taking part in the attack on the Capitol building; at the outset of the investigation, Diaz announced that he would fire any officer who "participated directly in assaulting the Capitol."

But some members of the city council and Seattle's Community Police Commission argued that simply attending the "Stop the Steal" rally gave Diaz grounds to fire the officers. "I don't understand how we can derive any other decision other than they were there to spur what those people did to storm the Capitol," said CPC Executive Director Brandy Grant during a commission meeting in January. Officer Mark Mullens, the sole SPD officer on the commission, also questioned the six officers' ability to continue working for the department, adding that he and other Black officers felt particularly unsettled by their participation in the rally.

However, OPA Director Andrew Myerberg said he could not find any legal justification for treating the officers' attendance at the rally alone as a policy violation. "There are a lot of people out there, including in city government, who would disagree," he said, "but given the officers' First Amendment rights, we can't discipline the officers for being present for a political rally."

"In practice, we're very limited in how we can obtain information and documents from officers, but we've been told repeatedly that we don't need subpoena power because we can just order officers to turn over records. And obviously, given the union's objections to the order we issued, that's not really the case," said OPA Director Andrew Myerberg.

To track the movements of the six officers, OPA investigators relied on a variety of sources, including hotel records and live-streamed footage from the attack. The office also turned over pictures of each officer, and their phone numbers, to the FBI, which was conducting a search for any rioters who entered the Capitol building during the course of the attack.

Ultimately, the OPA could only determine there whereabouts five of the officers during the riot. The sixth officer denies that he trespassed on Capitol grounds, though neither the OPA nor the FBI could corroborate his claim; he will not face discipline, though investigator's didn't rule out the possibility that he trespassed on federal property.

Investigators confirmed that three of the officers left the rally before the crowd began its march towards the capitol building. A source with background knowledge on the case told PubliCola on Wednesday that two of those officers spent part of the day with former SPD officer Adley Shepherd, whose 2016 termination for punching a woman during an arrest devolved into a protracted legal battle that ended in April when a Washington State Court of Appeals judge upheld Shepherd's firing.

In the spring, the FBI provided the OPA with a video showing the remaining two officers standing near the steps of the Capitol as rioters climbed walls nearby. Based on records obtained by PubliCola, the two officers were Alexander Everett and Caitlin Rochelle, a married couple. (The officers' names were first publicized by researchers with the investigative outfit Divest SPD).

In interviews with investigators, both officers insisted that they were unaware that they were trespassing in a restricted area; they also maintained that they didn't see rioters clash with Capitol police officers on or near the Capitol steps. The OPA investigators weren't convinced by the officers' claims; in the office's report on the investigation, Myerberg wrote that the "video [provided by the FBI]… serves to undermine the officers' assertions that they did not have notice they were trespassing. Not only were there signs posted in that area, but there were ongoing violent acts, the use of less-lethal tools by law enforcement officers, and multiple other signs that being in that location was inappropriate and impermissible."

Because the pair violated federal law, Myerberg sustained the misconduct allegations against them. "The OPA has consistently found that ignorance of the law is not a defense," he wrote in his report. Unlike the other officers who attended the rally, SPD placed Everett and Rochelle on administrative leave; they have not returned to work.

"They didn't just lie to investigators," said Myerberg. "They were standing by as rioters attacked their fellow police officers and stormed the halls of Congress." Though the OPA found that both officers violated SPD policy and federal law, Myerberg told PubliCola that the two are unlikely to face federal charges. "From what I've heard from the Capitol police, anyone who was in the immediate vicinity of the Capitol Building was trespassing and should be prosecuted," he said, "but because of their limited time and resources, they're focusing on people who actually entered the building."

Instead, Diaz is now responsible for deciding how to discipline the officers. The department's Discipline Committee — including the officers' direct supervisors and Myerberg himself — has already recommended that Diaz fire both officers, but the chief won't make a decision until the two can plead their case during a disciplinary hearing in August. Everett and Rochelle may also face additional investigations for dishonesty.

One aspect of the OPA investigation may have more significant ripple effects than the findings themselves. In early May, Myerberg ordered the six officers under investigation to turn over receipts, texts, photographs and bank records from January 6 to help investigators piece together their whereabouts. For the order to have any effect, Myerberg needed Diaz's backing; the interim chief obliged, directing the officers to comply with the OPA's order or face termination. All but one of the six officers turned over some of the records OPA requested, though only one turned over his texts—the rest told investigators that they regularly delete their text messages.

In response, SPOG filed a grievance with Seattle's Labor Relations division, arguing that Myerberg's order unlawfully discriminated against the officers because of their "political ideology and political activities." As a remedy, SPOG President Mike Solan asked that the OPA destroy the officers' personal records and that Myerberg and Diaz undergo retraining on non-discrimination policies.

"Given the implications of [the OPA's order], we are probably going to push to narrow the office's ability to subpoena personal records from our members. Really, if they want to get ahold of things like text messages sent during off-duty time, I would ideally be able to tell them that they need to file a lawsuit," said Shaun Van Eyk of PROTEC17.

On Wednesday, Myerberg said SPOG's grievance highlighted the tensions surrounding the OPA's investigative powers. Although the landmark accountability ordinance passed by the city council in 2017 gave his office the authority to subpoena evidence during investigations, the city's current contract with SPOG, adopted in 2018, prevents the OPA from using its subpoena power to demand records from SPOG members. The order he issued to the six officers present for the January 6 rally, he said, became a test case for the office's ability to work around the barriers created by the SPOG contract.

"In practice, we're very limited in how we can obtain information and documents from officers," said Myerberg, "but we've been told repeatedly that we don't need subpoena power because we can just order officers to turn over records. And obviously, given the union's objections to the order we issued, that's not really the case."

The next step for SPOG's grievance is arbitration: an attorney will hear arguments from both the OPA and SPOG about the legality of the order and issue a binding decision. Whether or not the OPA prevails, Myerberg said that the dispute with SPOG is evidence that securing the OPA's subpoena power in the next contract with SPOG should be one of the city's top priorities.

"If we win, that means we have the ability to order [SPOG members'] personal records under the authority of the police chief," he said, "but if the next police chief doesn't back us up when we order officers to turn over documents, that's a problem for our investigators—we would be stuck."

If the arbitrator sides with SPOG, Myerberg argues, the case might galvanize the Labor Relations Policy Committee—a group made up of five council members, the mayor's policy director and the directors of Seattle's Human Resources and budget offices who set the city's bargaining priorities during union contract negotiations—to fight harder to allow the OPA to exercise the subpoena power it received under 2017 accountability ordinance. "It would prove that there really isn't a workaround for subpoena power," he said.

Shaun Van Eyk, a negotiator for PROTEC17 — a union representing an array of city employees, including many civilian SPD staff who fall under the OPA's jurisdiction — said the dispute between SPOG and the OPA has prompted him to consider whether his union can push to limit the OPA's subpoena power over its members in their next city contract in the interest of protecting its members' privacy.

"Given the implications of [the OPA's order], we are probably going to push to narrow the office's ability to subpoena personal records from our members," he said. "Really, if they want to get ahold of things like personal text messages sent during off-duty time, I would ideally be able to tell them that they need to file a lawsuit if they want to issue a subpoena." At the moment, PROTEC17's contract is silent on the issue of the OPA's subpoena power, which means that the OPA retains the ability to issue subpoenas to union members.

Despite SPOG's outcry, the personal records turned over to the OPA actually helped exonerate at least one of the officers, whose receipts from a restaurant and a drug store confirmed that they had left the National Mall before the attack on the capitol began. But one officer ignored Myerberg's order, refusing to turn over any personal records to investigators. Though the OPA determined that he did not trespass on federal property, he is facing a new investigation for insubordination.

Paul Faruq Kiefer is a journalist, historian, and born-and-bred Seattleite. He has published work withKUOW,North Carolina Public Radio, andThe Progressivemagazine, and he is currently working on a podcast forKUAFin Fayetteville, Arkansas. Paul reports on police accountability for PubliCola.

Featured image is attributed to blinkofaneye under a Creative Commons 2.0 license.