OIG Partial Certification Memos Raise More Concerns Over OPA Investigations

by Carolyn Bick

In April of this year, the Emerald published a story about the Office of Police Accountability's recent decision not to sustain the most serious allegations against the Seattle Police Department officer who, in August of last year, drove onto a crowded sidewalk.

In its April story, the Emerald noted a curious addition to the Case Closed Summary (CCS) of the incident, which it had not seen in previous summaries. In this particular CCS, the Office of Police Accountability (OPA) stated that the Office of Inspector General (OIG) had declined to certify the OPA's investigation as objective or thorough. This meant that the OIG — which is part of Seattle's police accountability structure, conducting Seattle Police Department (SPD) and OPA audits, overseeing the OPA, and working alongside SPD and others to create and update SPD's policies and practices — had only partially certified the investigation. In its brief paragraph about this in the CCS, the OPA did not go into detail. It merely stated that the OIG's points of objection were "didactic and immaterial" and declined to address them further.

The Emerald recently obtained the OIG's certification memo for that case, as well as for eight other OPA investigations for incidents that occurred between April 2020 and May 2021, via a public disclosure request. The Emerald also obtained the OIG's memo for OPA case 2020OPA-0583, which concerned the overall decision by SPD officers to confront protesters in front of the Seattle Police Officers Guild (SPOG) headquarters in SoDo on Sept. 7, 2020. The Emerald published a story regarding that memo, which deemed the OPA's investigative shortfalls so severe that they "cannot be remedied" with a new investigation.

There are only a handful of partial certifications in total. OPA Dir. Andrew Myerberg told the Emerald in a brief July 6 email that in 2020, the OIG certified 96% of OPA investigations. However, based on the information contained within most of the partial certifications the Emerald obtained, OIG's points of objection appear to be important ones — and in the case of the officer driving onto the sidewalk, anything but "didactic and immaterial."

The Emerald has included in this story the full OIG partial certification memo and link to the OPA CCS about each incident.

Author's Note: For readers' reference regarding various quotes throughout this article, the OPA refers to officers named in complaints as Named Employee #X, where "X" is a number. Additionally, the OIG memos reference the OPA Internal Operations and Training Manual several times. Readers who may wish to refer to the manual in the course of reading the article can find it here.

Officer Drives Onto a Crowded Sidewalk
2020OPA-0515
OIG Certification Memo: "OIG is not certifying the investigation as thorough or objective."

As noted above, this investigation dealt with Sgt. Michael Tietjen, who drove onto a crowded sidewalk in Capitol Hill and later called protestors "cockroaches." It also dealt with two other officers included in the complaint.

The OPA cleared Tietjen of the most serious allegations against him but because it sustained two allegations against him, ultimately recommended suspension without pay and a disciplinary transfer (though at the time the decision was released, OPA's recommended discipline was listed as "pending," which is reflected in the Emerald's original story). The OPA recommended a written reprimand for a second officer who violated professionalism standards and cleared the third officer of any allegations.

However, the OIG certification memo reveals that there was another alleged incident related to Tietjen's driving onto the sidewalk and that several complainants referred to this second incident in the filing of the complaint against Tietjen.

"However, there is no reference by OPA in the IAPro [police software] file to this allegation, how it was resolved, nor were any of the people who submitted complaints interviewed," the OIG certification memo reads. "Per ordinance, during an investigation, OPA shall include 'the approach to addressing each allegation of possible policy violation or misconduct' and 'if OPA is unable to investigate an allegation…….the case file should indicate that this intentional decision was made.'"

The OIG memo goes on to state that the OPA did not respond to the OIG's inquiry about this alleged second incident and notes that "[t]he concern of missed allegations during an investigation is not new and has been raised previously by OIG. It has also resulted in other partial certifications."

Another area of concern the OIG flagged is that the OPA failed to "collect or address information directly relevant to a key underlying element of one of the policy violations under investigation." That specific policy violation was that of Tietjen's alleged "emergency driving," which the OPA ultimately did find violated policy. However, the OIG memo reads, additional fact-finding was necessary to assess the risk of Tietjen's actions.

The incident at issue was the fact that Tietjen drove onto a crowded sidewalk, allegedly to pursue a specific person who was fleeing on foot. "Thus, a key element of the allegation under investigation is to gather information related to both the need to pursue a fleeing suspect on foot in a vehicle, versus the safety risk posed by driving up onto a sidewalk directly towards a group of pedestrians to do so," the OIG memo reads.

The memo goes on to say that there were numerous risks involved, such as to the people on the sidewalk, the person Tietjen was allegedly pursuing, and the officers themselves. The memo said that there were also "several physical objects the vehicle had to navigate around (a telephone pole, a bus stop sign, and a bus stop), and Body Worn Video depicts an officer stating 'watch it' as the driver swerves sharply around one of those objects.

"OPA did not summarize or otherwise evaluate this evidence nor did they include any lines of questioning about it during their interviews with the Named Employees," the OIG memo reads.

But the OPA apparently disagreed, telling the OIG in its response that "analysis of the facts as they pertain to an allegation are not the domain of the investigative staff but rather the OPA Director."

The OIG baldly states that "[i]t is unclear to OIG how OPA can take the position that the collection and analysis of facts as they pertain to an allegation under investigation are not the domain of an investigator.

"The collection of pertinent and complete facts by an investigator is directly relevant to the OPA Director's ability to reach fair and consistent findings," the memo reads before going on to list the OPA's own directives, found in its manual. One directive found on page 31 reads, "It is the responsibility of the Investigator to collect all available information so that the OPA Director and the Chief of Police can make findings based on facts discovered during a complete, objective and thorough investigation."

The memo states that instead of conducting additional investigation as requested by OIG, the OPA "asserted that they adequately assessed risk during their investigation and that the driver of the vehicle was sufficiently questioned on this topic.

"OPA indicates the most notable example is when the Named Employee was asked during his interview 'Would you say there was a risk in driving on the sidewalk?'" the OIG memo reads. "For the record, the Named Employee's response to this question was 'in this situation, based on everything that I saw in front of me and what I was doing, I think this was, basically, the same kind of risk I would have in parking a vehicle.'"

Moreover, the OIG found that the OPA failed to preserve crucial video evidence that it relied on to form its decision. The video in question was available on Twitch for an unknown period of time, and while the OPA apparently had enough time to review the footage to make a decision, it did not download the video. In its response to the OIG's inquiry about this, the OPA said that this video had been deleted from Twitch before investigators could download it.

"Per Ordinance, criteria OIG should consider in reviewing investigations include 'whether all material evidence was timely collected' and 'whether applicable OPA procedures were followed and the intake and investigation were conducted in accordance with the OPA Manual,'" the OIG certification memo reads. "As noted in prior partial certifications, it is required by both the ordinance and the OPA Manual that perishable evidence be prioritized and preserved by OPA."

The OPA does not note in its CCS that it did not preserve the video, and it is unclear how long the video was available on Twitch before it was deleted.

The OIG also noted that this investigation could not be deemed as objective because of the subjective statements made in the investigation about one of the involved officers' conduct. The officer was caught on video yelling derisive comments at a community member. The OPA investigation states that the officer "mocked an individual" and later states that the officer gave "sarcastic commentary," both of which the OIG deemed subjective judgements.

The OIG requested that the OPA correct the subjective commentary, but the OPA did not. Instead, it said that "(w)hile the body of the Report of Investigation will contain the elements of a piece of evidence that are the greatest importance, it must be emphasized that OPA cannot reproduce every element of the evidence within the report." The OIG disagreed, saying that "[a] potential violation of SPD's Professionalism policy is under investigation. Therefore, when conducting a summary of the underlying video evidence related to that allegation, it is unclear how OPA can objectively argue that what can be seen and heard on that video is not of 'the greatest importance.'"

Finally, it appears that the OPA notably did not bother to assess the unedited video of the conversation between a protestor and Tietjen, in which Tietjen calls protestors "cockroaches." The memo says that this decision was made despite the fact that the OIG requested that the OPA assess the unedited version and that "the original contains additional statements that could be considered unprofessional."

The OPA instead asserted that it was unclear what could be gained from the full video and deemed the widely circulated — but edited — version found on Twitter to be of "greater evidentiary value."

"Thus, while this evidentiary deficiency was initially identified as related to the thoroughness of the investigation, OPA's response has now cast additional doubt on the objectivity element of this investigation in that there appears to be intentionality related to their decision to not include it in the record," the OIG's memo reads, explaining why the OIG decided to include this apparent investigatory shortcoming.

Officers Strike Young Woman in Chest With Blast Ball, Allegedly Target Medic Tent
2020OPA-0344 Part I
2020OPA-0344 Part II
OIG Certification Memo: "OIG has reviewed the Investigation for 2020OPA-0344 and is certifying the Investigation as timely, and objective, but not as thorough."

This two-part OPA decision grouped together events from the course of late at night on June 7, 2020, into the early morning hours of June 8, 2020. The Emerald wrote about these events in one single story.

In brief, SPD officers started using less-lethal weapons against demonstrators outside SPD's East Precinct on Capitol Hill after those demonstrators allegedly started throwing things at the officers. The first part of the OPA's investigation deals with one officer who threw at least four blast balls towards a line of protestors. One of these blast balls hit a young woman in the chest and she collapsed onto the ground. It was later revealed that she suffered a cardiac arrest and reportedly had to be resuscitated multiple times on her way to the hospital. Two volunteer medics with whom the OPA spoke about this incident said that the young woman's heart stopped at least once. In its final report, the OPA cited three medical personnel witness statements to this incident, including the two aforementioned volunteer medics.

In the course of its investigation, the OPA interviewed the officer who threw the blast ball that hit the young woman. The officer claimed he did not realize at the time that he had hit her (SPD policy regarding the use of blast balls and other less-lethal munitions requires that officers provide medical attention as soon as feasibly possible). The officer said that it was necessary to create space between officers and demonstrators. The OPA also said in its decision that it obtained the young woman's hospital records, which appeared to show acute alcohol intoxication, but it was ultimately unclear whether it was the blast ball to the chest or alcohol intoxication that caused her to go into cardiac arrest.

The OPA decided, in the case of this officer, that he violated SPD policy regarding the use of blast balls — he threw the fourth one, which hit the young woman in the chest, overhand towards her — but did not violate SPD policy regarding medical attention because he allegedly didn't know he hit her. The OPA also suggested management action for what the office deemed an unfounded allegation that the officer did not properly justify his use of blast balls. The OPA suggested that "SPD should endeavor to put in place a better process for documenting force used during demonstrations."

For his improper deployment of a blast ball — the one that struck the young woman — the OPA recommended that the officer receive a written reprimand.

The second part of the investigation ties directly into the first, as it deals, in part, with allegations by the medics who were treating the young woman. These medics alleged that SPD officers deliberately targeted their tent, in which they were treating the young woman and others. When the Emerald spoke with one of these medics last year, they told the Emerald that officers threw at least two blast balls into the tent.

The OPA interviewed witnesses to this incident, including the medics in the tent, who repeated this recollection and submitted sworn statements about it. The OPA also spoke with three officers named in that complaint, all of whom denied recalling seeing any medic tents. Ultimately, the OPA found that all the named officers did not violate policy — neither in deploying these less-lethal munitions nor in their professionalism — and labeled the Not Sustained findings as either Unfounded or Lawful and Proper.

But the OIG certification memo states that in their response back to the OPA in December 2020, it "highlighted several unexplained investigative gaps pertaining to this allegation and requested additional investigation."

Specifically, the OIG noted that there were five medical personnel witnesses — not just the three whom OPA cited in its CCS — who came forward to give statements in a public press conference setting with an attorney. The OIG wanted to know whether the OPA had interviewed the other two witnesses who gave public statements and whether it had gotten a complete, intelligible video of that press conference, as the audio in the submitted evidence was garbled in some places. It also wanted to know whether the OPA had followed up with the attorney from the press conference, as he had requested relevant videos from the audience.

In its response to the OIG's inquiry, the OPA wrote that it had spoken with the attorney present at the press conference about the OIG's requests. However, the OIG said the OPA returned this response to the OIG "just three business days" after having reached out to the attorney, indicating a short turnaround time that may not have given the attorney in question enough time to get the requested evidence to the OPA. The OIG also specifically notes that the OPA's response was returned "supposedly without [the OPA] yet receiving the requested evidence.

"Additionally, there is no noted attempt or offer for a civilian investigator to contact [the person] who did not want to speak with SPD but who is said to have pertinent information," the OIG wrote, referring to the fact that the OPA wrote in their response that the attorney said one of the people who spoke at the press conference was hesitant to speak with an SPD officer about the incident.

The OIG continued, writing that there are several factors it considers when called upon to certify an OPA investigation. These factors include whether witnesses were contacted and whether evidence collection was timely, as well as whether there was other information available to strengthen the claims made.

"In this case, OPA disregarded two potential witnesses, despite their public statements [at the aforementioned press conference] claiming first-hand knowledge of these allegations," the OIG wrote. "Additionally, OPA acknowledged corrupted audio/video evidence but failed to demonstrate a substantial attempt to obtain an intact file. OPA then re-submitted the investigation to OIG with the knowledge of these potential pending witness statements and video evidence."

The OIG said that it could not direct any additional investigation because the 180-day deadline for OPA to investigate complaints was fast approaching. "Thus, there is no time for OPA to conduct additional investigation," the OIG wrote.

In other words, the OPA had run out the clock on the investigation.

Officers Allegedly Use Excessive Force, Act in Retaliation Against Protestors
2020OPA-0533
OIG Certification Memo: "OIG appreciates the willingness of OPA to address multiple issues raised by OIG. However, ultimately, after reviewing the additional information provided by OPA, OIG cannot certify the investigation as thorough. OIG does certify the investigation as timely and objective."

In this case, one person made a complaint to the OPA on behalf of himself and a group of protestors about an incident on Aug. 16, 2020. He said that police had not only arrested him and several others as an act of retaliation but that they had subjected him and these others to excessive force.

The OPA summary of the investigation says that the arrests took place after protesters started throwing things, allegedly including improvised explosives, at the police. Shortly after the crowd began to disperse, SPD suggested over radio that officers arrest people in smaller groups to prevent them from causing damage. The OPA summary says that the officers saw four people start to spray paint part of a building and moved to arrest them. Three of these people appear to have started to run away. One of these people was the person who later made the OPA complaint. When one of the officers "contacted" the aforementioned person, "he pushed the Complainant into the wall of a nearby building," the OPA summary reads. It also says that the person punched this officer "at least once in the face."

The OPA summary says that the officer punched the person at least five times in the head and neck area and that another officer, who had come over to help, also punched the person. These officers and the person they were arresting used profanity. There was a continuing scuffle, which was recorded and put on Twitter.

When the OPA interviewed the person arrested, he said that he was flailing his arms, and that though his recollection was fuzzy, he was not resisting arrest. The OPA interviewed the two officers who arrested this person, both of whom said that their use of force was justified. Ultimately, the OPA cleared the officers of the allegations that they used excessive force, that they made retaliatory arrests, and that they were unprofessional, labelling all Not Sustained and recommending a training referral regarding the fact that the officers used profanity.

But the OIG found body worn video evidence that may have supported the allegation that the officers were making retaliatory arrests.

"In conducting a review of Body Worn Video (BWV), OIG discovered several clips not referenced in the Report of Investigation that OIG assessed as potentially relevant because they appear to express retaliatory intent on the part of officers," the OIG wrote in its certification memo. "It was in light of the comments heard on BWV and concerns with the depth of the investigation that OIG requested OPA conduct a more detailed exploration of the retaliation allegations."

The OIG memo also said that the OPA did not appear to have bothered to make a full, in-depth line of inquiry into retaliation allegations. Rather, the OPA simply asked the officers "if they were aware of any officers who retaliated against these protestors. There were no further questions asked or investigative efforts made by OPA relevant to the allegations of retaliation."

The OIG asked the OPA to conduct further investigation. However, the OPA declined.

"OPA claimed they could not advance their inquiries to investigate the allegations of retaliation against SPD. While acknowledging 'it is obvious how such comments could be perceived by the public as a form of retaliation,' OPA further stated there was an intentional focus on the investigation into excessive force allegations (not into the retaliation allegations) and stressed limitations relating to current OPA resources," the OIG's memo reads. "The comments heard on BWV that were pointed out by OIG as relevant were dismissed by OPA as 'being contributed to an individual officer and as such don't speak to the larger overarching complaints received of retaliation en masse.' For these reasons, amongst others, the OPA declined to further investigate the retaliation allegation."

While the OIG acknowledged that the OPA was dealing with a heavy caseload and limited resources, it also noted that there were multiple complaints that alleged retaliation. Retaliation constitutes serious misconduct and may result in termination, according to SPD policy.

"The investigative record indicates OPA did not ask officers detailed and probing questions concerning the retaliation allegations when they were interviewed, even though there are relevant and potentially revealing officer statements captured on BWV," the OIG memo reads. "OIG is not directing additional investigation at this time because OPA has specifically articulated they made an investigative resource-based decision to not conduct a full investigation into the retaliation allegations."

Officers Throw Journalist's Phone, Allegedly Use Excessive Force Against Her, Others
2020OPA-0557
OIG Certification Memo: "OIG has reviewed Investigation for 2020OPA-0557 and is certifying the investigation as timely and objective. OIG is not certifying the investigation as thorough."

On Aug. 26, 2020, people gathered to protest and mourn the death of Summer Taylor, a young activist who had been killed in early July 2020 when a man drove a car into a group of activists who were walking along a closed freeway in Seattle.

The OPA summary of its investigation into the allegations made against SPD officers with regard to their behavior during the demonstration per complaint number 2020OPA-0557 — which combines multiple allegations — states that officers arrived on-scene to monitor the demonstrators, who were being protected and escorted by a car brigade for safety. The OPA investigation involves three of these officers in two separate complaints. However, the OPA made a note that a third complaint, which alleged that officers targeted a well-known second journalist — allegedly specifically due to his status as a journalist — and pepper-sprayed and hit him with batons, would be "analyzed in a separate DCM [Director's Certification Memo]" because they had not at that time identified the officers involved and that this complaint is (or was) "governed by a different contractual timeline." A DCM is not released for public consumption and is different from a Case Closed Summary (CCS). This complaint number is 2020OPA-0567, according to the OIG's partial certification memo regarding 2020OPA-0557.

The OPA says that a lieutenant told demonstrators, who were near Interstate 5, that they needed to move the cars in the car brigade and their bodies from blocking the offramp and surrounding buildings. Officers then started to use force to push demonstrators in a different direction. Scuffles ensued, and officers started using less-lethal munitions, including pepper spray, against demonstrators. Officers also arrested some people.

During all of this, a journalist was recording the activity with her phone. She was moving with the line of protesters but was wearing a press badge and stated several times to officers that she was press. An officer pushed her back with a baton anyway, though the OPA summary states that she didn't stumble, fall, or indicate at all that she was in pain. When she told this officer that she was press, he said, "I don't care, move." One of the officers who was pushing the crowd back alleged that the journalist was deliberately shining her phone's light directly into his face, so he took it and threw it. The OPA summary states that near the end of the body worn camera video of this incident, the journalist reached out towards the body worn camera that the officer who pushed her back was wearing, after which the video stopped, which appeared to suggest the journalist made physical contact with that officer.

While the OPA said that the officer should not have thrown the journalist's phone and sustained the allegation that the officer violated the journalist's right to film in public based on SPD policy — a right that is covered, the Emerald would like to note, under the First Amendment — they did not sustain the allegation that this officer violated use-of-force policy. Similarly, the OPA found that another officer also did not violate the SPD's use-of-force policy or professionalism standards, and another officer named in the complaint properly issued a dispersal order to the crowd before beginning to move them back. The OPA combined the allegation of unprofessionalism against the officer who threw the journalist's phone with the allegation that he violated SPD policy in doing so, thus "removing" the standalone allegation of unprofessionalism by way of combination.

The OPA recommended a written reprimand for the officer who threw the journalist's phone.

However, as the OIG memo notes, it appears that the OPA never further addressed the complaint involving the second journalist, 2020OPA-0567, despite saying it would do so.

The OIG memo states that the OPA told the complainant in this particular case that he could track the status of his complaint through the one discussed in detail above, 2020OPA-0557.

"OPA combined a second complaint (2020OPA-0567) with this one and advised the Complainant in that case that he could track the issues he raised through the investigation into 2020OPA-0557," the OIG memo reads. "However, OPA appears to have not taken further action to investigate those allegations."

Upon searching the Complaint Tracker database, this message appears when that case number is typed in: "The status of this complaint is COMPLETE. The contact has been reviewed, documented by OPA, and no further action will be taken. Thank you for contacting us."

The listed date of completion for this complaint is Sept. 28, 2020. However, there is no OPA CCS for this complaint or any information about it listed in the Case Closed Summary finder.

Based on OIG's memo, it appears that an officer may have tampered with the phone of the complainant involved in 2020OPA-0567. But the OIG's memo says that the OPA did not follow up on this in a timely manner and apparently also did not interview the journalist at the center of 2020OPA-0557 about this other complaint (2020OPA-0567), despite the fact that she was a first-hand witness to the alleged events.

"OPA did not timely pursue additional information from the Complainant in 0567 regarding the extent of the damage to his cell phone, or if it was in fact recovered, where and when it was found," the OIG writes, appearing to suggest that the complainant's mobile phone was damaged and perhaps even lost for a period of time. "Additionally, despite being provided with the full name and contact information for a first hand witness (the journalist [from case number 2020OPA-0557] who identified herself as such and was complying with the dispersal order when her phone/camera was grabbed and thrown by one of the Named Employees), the OPA Investigator assigned to 0557 did not engage in subsequent efforts to contact or interview her."

Neither, the OIG states, did the OPA investigate allegations that officers trampled flowers and candles set up as a vigil for Summer Taylor.

Moreover, the OIG memo says, in case number 2020OPA-0557, the OPA did not "conduct any interviews (including of the Named Employee) relevant to the allegation of SPD officers pushing protesters without warning to move back (moves which also affected individuals who were peacefully protesting on the sidewalk and/or attending the vigil) and using less-lethal munitions on the crowd (impact weapons and pepper spray) prior to any dispersal order being issued.

"The information outlined above that was not gathered by OPA during the investigation speaks directly to the allegations and concerns brought forward in the multiple complaints that were combined under this case number," the OIG memo reads. "By not conducting follow up on actionable leads, OPA has limited the scope of their fact finding, and thus their ability to thoroughly assess the actions and intentions of the Named Employees."

The last objection the OIG raises is a technical one that would appear to have serious ramifications, particularly when it comes to meeting the 180-day deadline for all OPA complaints, which thus affects whether complainants see any form of justice.

"Finally, the Report of Investigation contains multiple contradictions regarding the identification of Named Employees, Witnesses and Complainants," the OIG memo says. "These types of errors not only confuse and delay the certification review process, but can also affect procedural justice for those involved. OIG is taking this opportunity to again urge OPA to conduct careful reviews of their investigations prior to submitting them to OIG for certification review."

Alleged Biased Policing
2020OPA-0369
OIG Certification Memo: "OIG has reviewed Investigation for 2020OPA-0369 and, based upon the additional information provided, is certifying the investigation as timely and objective. The investigation is not being certified as thorough because there was a key area of relevant questioning pertaining to the allegations that was not explored during the investigation."

In this case, a Black SPD officer came to work dressed in civilian clothing. According to the OPA CCS, a sergeant filed the complaint on this Black officer's behalf, making the Black officer the complainant of this investigation. The OPA summary says that another officer allegedly said to this Black SPD officer, "You look like a fucking thug!" When the officer confronted the officer who made this comment later on to express how he felt — the OPA CCS says that he told this officer, "I feel disrespected, because you said I look like a thug, and I didn't appreciate it!" — the officer who made the comment simply said, "You did look like a fucking thug!"

After this, the OPA CCS says, "a verbal altercation … ensued" and three other officers — the sergeant who filed the complaint and two other witness officers — had to step in to prevent a physical fight.

The officer who called the Black officer a "thug" later said during the OPA investigation that he didn't understand that this term can be derogatory towards Black people and apologized. Both the complainant and one of the witness officers involved in the case agreed that the officer named in the complaint may not have known that such a term could be derogatory.

The OPA agreed that the term "thug," when used towards Black people, is "an offensive and racially charged term." It also wrote that it believed that, had the officer towards whom the comment was directed been white, it was "inordinately unlikely" that the officer named in the allegation would have used the term at all (though noted that this was a "subjective determination" on the OPA's part). There was also no other evidence suggesting that the officer named in the allegation had used that term towards anyone else before.

The OPA said that it was "difficult if not impossible for OPA to establish that NE#1 knew that "thug" could be construed as a racial slur at the time he said it." The OPA ultimately found that the involved officer had acted unprofessionally but did not violate SPD's rules against biased policing. For this, it recommended suspension without pay for the involved officer. The CCS does not indicate how long a suspension was recommended, if any, and it is unclear whether this suspension has been carried out. SPD did not return the Emerald's request for comment on the matter or respond to the Emerald at all.

The OIG memo's objection to the OPA's investigation into the incident is short. During the investigation, the OIG memo reads, "information was provided that suggested the Named Employee repeated the comment to the Complainant and did not apologize, even after the Complainant told the Named Employee that the comment was disrespectful. However, despite this potential evidence of intentional bias, OPA did not question the Named Employee about his actions or words when he repeated the comment and refused to apologize to the Complainant."

However, once again, the OPA submitted the investigation to the OIG too close to the 180-day deadline for OIG to recommend further investigation, the OIG said, and "there is no time for OPA to remedy this deficiency."

Officer Allegedly Referred to Person of African Descent as "You People"
2020OPA-0231
OIG Certification Memo: "The Investigation for 2020OPA-0231 is being certified as timely and objective. The case is not being certified as thorough."

The OPA CCS for this incident says that a person of African descent made a complaint to the OPA in which he alleged that a parking enforcement officer referred to him as "you people" or "you guys," while issuing a parking citation. The complainant said that he felt the officer was using the term in a derogatory manner and that she gave him the ticket after he left an African specialty store.

The OPA wrote that it could not find any body worn video of the incident because, as a parking enforcement officer, the officer named in the complaint was not issued a body worn camera. The OPA said that there was body worn video from the witness officer in the case, an SPD sergeant who arrived on the scene later, but it was too late to capture the alleged interaction. The sergeant spoke with the parking enforcement officer after the complainant told him that the parking enforcement officer had used a derogatory term while issuing a citation. The parking enforcement officer denied that she had made the comment and said the complainant must have misheard. She said she was conducting parking enforcement in the area due to multiple complaints of cars allegedly illegally parked.

The OPA ultimately did not sustain any allegations in this case, citing lack of conclusive evidence.

But that does not appear to be the whole story.

The OIG writes in its memo that it is certifying the case as timely and objective — but not thorough — because "OIG finds that OPA did not sufficiently resolve two key areas identified by OIG. The nature of those deficiencies is significant enough that failing to resolve them impacts the ability to certify the case as thorough."

One of these key areas, the OIG says, is missed allegations at the intake — or very beginning — portion of the complaint. In this part, the OIG says that the "OPA notes in the case intake that the NE [Named Employee] had been the subject of five Bias Reviews since 2015, as well as the subject of two completed OPA investigations and one ongoing investigation with allegations of bias.

"However, OPA did not include a potential policy violation related to the NE not following policy related to Bias reporting nor was the NE asked any questions related to why she did not follow process in this instance," the OIG writes.

Additionally, the body worn video of "the Sergeant who reported to the scene appears to depict his not following Bias-Based policing policy by explaining the option to the Complainant of referring a complaint to OPA.

"Instead, the Sergeant hands the Complainant a card with OPA's contact information without explanation and states only 'if you feel it is necessary, this is the contact information for Office of Professional (sic) Accountability,'" the OIG memo reads. "Additionally, the Sergeant declines to investigate the matter on scene by speaking with a witness identified by the Complainant that purportedly supported his version of events."

The OIG says that it identified these missed allegations on March 18, 2021, and directed the OPA to conduct additional investigation into the matter. But the OIG memo states that the OPA said it "did not take action on this because 'there was no Bias reporting allegation in the classification report' and that 'the Sergeant was not a named employee in the case.'

"However, OPA did not offer any explanation as to why the preliminary investigation missed these allegations and did not identify them or an additional named employee at the time of classification," the OIG memo reads. "The OPA Manual states that when classifying a complaint, OPA considers 'whether the allegations listed in the Complaint Summary cover all concerns raised by the complainant or identified by OPA and whether allegations or named employees should be added or deleted' (p. 23)."

The OIG also found that the OPA did not sufficiently address conflicting testimony in its investigative interviews. Again, because it is unclear what situation is unfolding here, the Emerald will simply present the OIG's paragraph about this in full.

"The BWV [body worn video] of a witness officer and the Sgt [Sergeant] depicts the Complainant providing an account of what occurred that included his seeing the NE [Named Employee] before he ran into the store, and that he just ran in and out very quickly to pick up a plastic bag he had forgotten the day before. The OPA investigation did not include a thorough interview of the Complainant, and the NE was never asked to respond to the Complainant's version of events (which included her potentially seeing him before he ran into the store, and that she did not provide him time to move his car as she claimed)."

When the OIG asked the OPA to conduct additional investigation due to this conflicting testimony, "OPA's response was to state 'The NE explained in her interview her usual practice of arriving in an area with her lights on, waiting a few minutes and then issuing citations. The amount of time the Complainant was in the store is not relevant to the allegations.'

"OPA did not offer further explanation as to why the NE was not asked to respond to the Complainant's version of events, including that she saw him before he went into the store, and thus was aware of his race when she issued the citation to him, or that she did not give him an opportunity to leave before citing him," the OIG memo says. "OPA also did not request or include the 2nd citation issued by the NE or otherwise engage in efforts to examine the NE's version of events. The OPA Manual requires that Interview questions 'address the elements present in the allegation(s) raised against the named employee' (p. 31)."

Pending OPA Case Closed Summaries

Three of the OIG memos the Emerald obtained via a public disclosure request regard OPA investigations that have not yet been released to the public as Case Closed Summaries. It is therefore unclear exactly what transpired to trigger the complaints, but most of the memos give at least some insight into the allegations at hand.

However, the Emerald did think it important to release those partial certification memos for future reference when the OPA CCSs for those investigations do become publicly available.

The first partial certification memo OIG released to the Emerald is for OPA case 2020OPA-0233. The OIG writes that it is certifying the investigation for objectivity and timeliness but not for thoroughness.

In this case, the OIG memo gives a brief background into the incident that spawned the case. The memo says that "[t]his case involves an allegation from a community member that on April 13, 2020, the Named Employee (NE) pulled a gun on him when he approached the NE's parked patrol vehicle to ask about donating emergency supplies to SPD [Seattle Police Department] and SFD [Seattle Fire Department]."

Though the OPA interviewed the complainant in a timely manner and was able to identify the officer involved, as well as a witness officer, the OIG memo says the OPA let three months elapse before scheduling an interview with the involved officer. The officer ended up missing that interview, which was scheduled for Aug. 19, 2020. It's unclear why the officer missed the interview but shortly after that, the investigation was "tolled" — put on hold — because both the involved officer and the witness officer were on leave.

The OPA finally interviewed these officers on Nov. 17, 2020, but for some reason, the OPA does not appear to have actively continued with the investigation, as the OIG writes, "Thereafter, the investigation again lagged for more than two months until it was submitted to OIG for certification review on January 28, 2021."

The OIG memo gives no indication as to why this investigation dragged out so long.

The OIG memo goes on to give a brief description of one of the guidelines it uses to assess thoroughness, stating specifically that "OIG considers whether interviews were thorough, whether conflicting testimony was sufficiently addressed, whether additional clarifying information would strengthen the investigation and whether the investigation was conducted in accordance with the OPA Manual."

In this case, it appears that the OPA did not address conflicting testimony and was not thorough, "because neither of them was asked questions that were central to the allegation(s) at issue." The memo addresses the witness officer's (WE) interview first, saying that "specifically, during the WE interview, the witness was never asked any questions about what they observed regarding the Complainant's allegation that the NE pulled a gun on him.

"Of his own accord, the WE made a statement to the Investigator that confirmed he heard the Complainant say to the NE 'you pulled your gun on me'. The WE then stated, 'Never once was a gun ever pointed at him or shown to him,'" the OIG memo reads. "However, the OPA Investigator immediately switched subjects and never questioned the WE further on this point.

"Additional relevant questions to assess what the WE witnessed with regard to the allegation would have included how the WE knew the NE never pointed or showed his gun to the Complainant, what his line of sight was to the NE and the NE's weapon, whether he (the WE) had also pulled his service weapon, if the WE and NE had discussed unholstering their weapons before exiting the car, at what point in the encounter the Complainant was determined to not be a threat, and at what point he heard the Complainant make a statement to the NE about pulling his gun on him," the OIG's memo continues.

The OIG memo then moves on to address the conflicting information offered by the involved officer. In a similar manner to the witness officer's interview, the OPA investigator does not pursue a meaningful line of questioning regarding the key issue at play: that the complainant alleged the involved officer pointed a gun at said complainant.

"Similarly, during the NE's interview, the NE volunteered the information that the Complainant asked him 'you're pointing your gun at me?' and claimed this was said at the end of the encounter after he raised his gun above the door level when hanging it back up," the OIG memo states. "Again, the OPA Investigator immediately changed subjects and did not question the NE further regarding the Complainant's allegation.

The OPA suggests additional questions for the OPA investigator to have asked to determine whether the involved officer violated SPD policy. These questions "would have included why, once he recognized the Complainant and knew him to not be a threat, he did not put away his weapon sooner. Additionally, the NE could have been asked to respond to the Complainant's version of events that he could see the NE with his service weapon in his hand at his side during the whole encounter, how far apart the Complainant was standing from him during their interaction, and to describe in more detail how/when he hung up his gun and how his gun would have come up above the vehicle door and only into the Complainant's sight at that time."

The OIG also says that though there was no body worn video available at the time — it's not clear whether officers need to have their body worn video recording when they have their guns drawn and SPD did not answer the Emerald's question about this or respond in any capacity at all before publication — it did get ahold of security camera video from the Safeway parking lot in which this occurred. The OIG memo states that both the involved officer and the witness officer viewed the video. But "[d]espite having this additional objective evidence, OPA never questioned the WE or the NE about what could or could not be seen on the video during their interviews as part of their testimony.

"The OPA Investigator also did not conduct any independent assessment in the ROI [Report of Investigation] of what can be seen on the video as to whether it supported or refuted the testimony of the NE relevant to the alleged policy violations," the OIG memo reads.

"Finally, even though the investigation included a potential biased based policing violation based on the information provided by the Complainant, the NE was not adequately informed of the nature of the Complainant's allegation or questioned on all aspects of the allegation," the OIG memo continues. "Instead, the NE was asked a single yes or no question at the end of the interview to the effect of 'were your actions influenced by bias, prejudice or discriminatory intent?'"

The OIG memo appears to suggest that this violated the regulations set out in OPA's own manual, italicizing certain key words found in the manual that the OIG quotes in the memo: "[a]ccording to OPA's Manual, 'the Investigator must not avoid asking necessary questions. Specific and sometimes direct questions must be asked in order to address the elements present in each allegation' (emphasis added). The OPA Manual also states, 'Interview questions should address the elements present in the allegation(s) raised against the named employee' (emphasis added)."

The OIG also appears to suggest it would direct further investigation but that there is not enough time to do so.

"In the current case, OIG is not directing additional investigation. Unfortunately, in OIG's estimation, not only can the above identified deficiencies not be sufficiently remedied, but given the delays in OPA's investigative process, there is not enough time left in the investigation to address them," the OIG memo closes.

The second partial certification memo the Emerald received for an OPA case not yet released to the public is the memo for OPA case 2020OPA-0424. In this case, the OIG could only certify the investigation for objectivity but not for thoroughness or timeliness.

The OIG memo states that it can't certify the investigation as timely because the 180-day investigation deadline fell on Jan. 4, 2021, but the OPA investigation had been submitted to the OIG for review less than a month before that, on Dec. 17, 2020. Because of this, there was not enough time for OPA to conduct any additional investigation that it appears the OIG would have otherwise directed, according to the memo. The OIG also states that the OPA submitted the initial investigation for OIG review with "numerous errors regarding the identification of the involved parties, to the extent that the basic fact pattern could not be understood." The OIG would have also had to conduct a re-review of the investigation, but there was no time given the upcoming holiday, the OIG memo says.

As for thoroughness, the OIG says, the OPA had the complaint in-hand for six months but never interviewed the complainant. This is despite also having made contact with the complainant's mother, who said that the complainant would be available for an interview in September 2020. The complainant's mother also said that she wanted her son to speak for himself and give his own story. However, the OPA never bothered to follow up or make other efforts to try to interview him.

Moreover, the OIG writes, "there were two incidents that occurred more than a year prior. The Complainant alleged those incidents demonstrated harassment from SPD, not only because they both occurred on the same day, but also due to the nature of the contacts.

"There was information in this complaint that could only be provided by the Complainant. That information, which speaks to a community member's perceptions of professionalism or harassment from SPD, is integral to investigating an allegation involving a disruption of public trust," the OIG memo says. "While OPA did include an allegation of professionalism against both Named Employees, without the Complainant's participation, that area of questioning was extremely limited."

The final partial certification memo is extremely brief, and it is unclear exactly what the situation is. The OPA case number is 2021OPA-0016. For that reason, the Emerald will simply provide a link to this third memo here.

In his July 6 email to the Emerald, OPA Dir. Andrew Myerberg said that he did not have the bandwidth to respond to the Emerald's questions about points within each of the OIG's memos regarding the four publicly available CCSs addressed in this story. He said that "[a]ll of the OIG's comments/requests in their certifications are addressed via memos that are included within the OPA casefiles.

"You can request the full casefiles via public disclosure. I can't provide them to you outside of public disclosure as they have officer and witness names," Myerberg explained.

As of this writing, the Emerald has not filed a PDR for the aforementioned OPA memos. The Emerald would also like to note that once an OIG memo is issued, there is no further back-and-forth between the OIG and OPA, so it's unclear whether the OPA memos would address the Emerald's questions.

Originally, the Emerald had requested that Myerberg respond by 2 p.m. on July 7, with the intention of publishing a story on the morning of July 8. The Emerald followed up twice with Myerberg over the course of two days to ask whether he would be able to answer the Emerald's questions if the Emerald pushed out the date of publication, which would have given Myerberg several more days' worth of time to respond. Myerberg did not reply to either of these emails.

Regarding the partial certifications, Myerberg said that "[u]ltimately, disagreement is going to exist between OPA and the OIG concerning investigations and whether they are thorough and objective and this is a good thing for the system.

"This is also a result of the inherent subjectivity in reviewing investigations. We are not always going to be in [sic] the same page concerning the steps that need to be completed and, particularly, on interpretations of evidence/testimony," he said.

Carolyn Bick is a journalist and photographer based in South Seattle. You can reach them here, and check out more of their work here and here.

Featured image of Seattle Police Department riot police by Alex Garland.