by Carolyn Bick
The Emerald's Watchdragon reporting seeks to increase accountability within our city's institutions through in-depth investigative journalism.
This article is part three of a multi-part series concerning the protests that took place in Seattle in late 2020. It describes the apparent inaccuracies in the Office of Police Accountability's (OPA) official report of the events as documented in the police oversight entity's Director's Certification Memo, which appears to have been signed off on as final by the OPA director. It also connects the dots between the certification memo and the recent ethics complaint filed by a former Office of Inspector General auditor, as reported here. Find the first article in this series here.
In late June, the Emerald published a story about an Office of Inspector General auditor's memo detailing concerns with the way the OPA investigators handled a case about last year's Labor Day protest at the Seattle Police Officers Guild headquarters. That protest has been a topic of contention throughout Seattle for a number of reasons, including the amount of force the Seattle Police Department used against protesters and whether officers were actually responding to a credible threat in the crowd, as they claim.
OPA Director Andrew Myerberg told the Emerald in a June 28 email that he was planning on finalizing the Director's Certification Memo and releasing the Case Closed Summary related to complaints filed in the wake of the incident the following week.
As of this writing, not only has the OPA still not released the Case Closed Summary — more than a year after the protest — but the Emerald has learned through an email it obtained, as well as the Director's Certification Memo (DCM) itself, that the DCM appears to have been finalized in early April. Myerberg told the Emerald in a Sept. 20 email that the DCM will be amended — an issue the Emerald addresses at the end of this story — but did not deny that it had been finalized in April, despite saying in June that "I was planning on finalizing the DCM that week [the week of July 5]."
Additionally, though Myerberg has said that he will amend the DCM, it is unclear what could change, particularly given the rules governing OPA investigations and the fact that the OPA has already publicly issued part one of a Case Closed Summary for a different but intimately related case that appears to be based on this exact same narrative.
This story aims to contextualize the problems with the seemingly finalized DCM and its apparent inaccuracies, as laid out in the documents that informed the story referenced above, as well as in the breaking story that followed, about the ethics complaint filed against Office of Inspector General's (OIG) top staff. This story also draws on new, supplemental City documentation from the OIG that the Emerald obtained regarding problems with the DCM.
Despite Myerberg telling the Emerald that the DCM for this case — 2020OPA-0583 — was not yet finalized, according to the DCM, Myerberg sent it to the Chain of Command (COC) on April 8, 2021 with a 180 Date — the investigation end date — listed at the very beginning of the DCM as April 12, 2021. According to the OPA manual, sending the DCM to the COC is the step that takes place after the DCM is finalized. Myerberg also specifically said in an April email (which the Emerald will address later in this story) that the investigation's 180-day deadline was April 12, a date he acknowledges was agreed upon between the Seattle Police Officers Guild (SPOG) and the OPA.
The DCM for 0583 contains a slew of "Not Sustained" findings against multiple Seattle Police Department (SPD) officers and two "Sustained" findings against one officer and states that "a Discipline Meeting will be scheduled" for the Sustained findings, again as per the OPA's manual, and again, indicating that the DCM was indeed finalized.
The DCM also bears Myerberg's initials next to his name. A former City employee who declined to be named confirmed that this indicates that the DCM was finalized — and had been finalized for several months — at the time Myerberg told the Emerald it wasn't.
In some cases, an investigation will be tolled (or put on indefinite hold), but there is no indication that this case was. And according to a November 2020 email from SPOG President Mike Solan that the Emerald recently obtained, the submission date for this DCM was already a 30-day extension to the original deadline. The original deadline appears as though it would have fallen in March 2021, had SPOG not granted Myerberg a 30-day extension. The OPA typically has 180 days from the day a complaint is filed to conduct and close an investigation, not including any granted extensions. Thus, the extension request pushed the deadline to April 2021. As referenced above, Myerberg would also later request a backdated investigation deadline extension for an officer belonging to a different guild in an April 2021 email. The extension request specifically put the deadline at April 12. As stated above, the Emerald will address this email more in-depth later in the story.
While Myerberg did ask for an additional four-day extension on the case, it was for COC officer Assistant Chief Thomas Mahaffey, who was on vacation. The extension would have been for Mahaffey to provide comment on the DCM, not for the OPA to conduct additional investigations or retool the DCM, again as per the OPA manual.
The DCM names nine SPD employees singled out via complaints submitted to the OPA, several of whom face more than one allegation. Five face allegations of excessive uses of force and one — a captain, at the time the DCM was issued — faces five different allegations.
The DCM opens its summary of events by stating, "Numerous complainants alleged misconduct by named and unknown SPD employees during a Labor Day demonstration at the Seattle Police Officers Guild (SPOG) headquarters.
"In general, the complaints alleged that officers dispersed the crowd without cause, used excessive force in doing so, and used undercover officers to commit acts of violence justifying the dispersal," the DCM states, referring to post-protest speculation that SPD had planted at least one officer in the crowd to create a reason for police to move in on protesters. The DCM then goes on to convey a dizzying narrative of the events that transpired that day.
But almost from the outset, the Computer-Aided Dispatch (CAD) report and the associated TAC9 audio (police radio) from the Labor Day protest disputes the narrative set forth in the DCM. The apparent inaccuracies identified in the aforementioned OIG memo included in the ethics complaint start almost at the very beginning of the 35-page DCM.
After stating that a group of about 200 protesters arrived to no visible police presence at SPOG, the DCM states that, at 6:07 p.m., SPD intelligence reported that the protesters' signal to act would be a plume of white smoke.
At least one person present that day caught on camera bicycle officers and at least two officers in a vehicle, all of whom were stationed in the SPOG parking lot. The DCM states that other officers were stationed at a neighboring building, which conflicts with the notion that there was no visible police presence when protesters arrived at SPOG.
The DCM says that two minutes after the protesters arrived, "[i]ntelligence reported that a male in the crowd wearing tan clothing and a pink bandana possessed approximately twelve Molotov cocktails in a box of Corona beer."
But the evidence doesn't support this. And this is where things get difficult to follow: Various individuals are described by their clothing and what they were holding across multiple reports, which the OPA ostensibly attempts to reconcile in the DCM but fails to do. And in some cases, it's unclear how the OPA came to the conclusions it did if one follows the evidence.
In order to follow along, the Emerald suggests beginning this journey with this: Three unique individuals are described in the evidence that is summarized in the DCM and related official documents of the events that day. One was wearing "tan dress" (clothing) and a pink bandana (who allegedly had "a Molotov"). The Emerald will refer to this person as Pink Bandana. Another person was wearing a blue mask, a dark grey or blue hoodie, and yellow or tan gloves. The Emerald will refer to this person as Tan Gloves. The third and final person was wearing black clothing and a grey backpack and carrying a trash bag. The Emerald will refer to this person as Black Clothes.
Somehow, the OPA manages to conflate all of the aforementioned, apparently unique, individuals and related information into a single suspect and then determines that SPD was justified in using force to attempt to apprehend that suspect in the crowd that day in the interest of keeping the peace.
There is also conflicting evidence surrounding whether there was just one alleged Molotov-cocktail-wielding protester and/or someone with a Corona 12-pack box full of them. The DCM never mentions the possibility of one Molotov cocktail, despite the police radio report.
The CAD report states that "[i]n the crowd, there is male with a Molotov, tan dress and pink bandana. No eyes on yet," which seems to indicate that the alleged suspect was holding just one Molotov cocktail, not 12, as the DCM claims. It also suggests that the officer — who was speaking over the TAC9 police radio frequency — apparently has not even sighted this person. The source of the information about the alleged suspect in question is from SPD's intelligence officer in the crowd, but this officer is never identified.
The OPA's DCM links this verbal report to someone SPOG's security video caught on camera (and included in SPOG's YouTube video of the protest) and initially conflates the two into one person, whom it calls "Subject #1." But the attire of the person described in the CAD report doesn't match that of the person sighted on SPOG security video. The person on the security footage was wearing a bright blue mask, a dark grey or blue hoodie (as the DCM notes), and light tan gloves. Moreover, the person sighted on the SPOG security video was not found until after the fact, according to supplemental City documentation.
"The Corona Beer suspect was not discovered until AFTER the protest, when the beer box was discovered in front of SPOG. This is confirmed by numerous SPD personnel, including the OPA Investigator assigned to this case," the memo attached to the ethics complaint reads.
The OPA appears to have come to the conclusion that the person wearing tan dress and a pink bandana (Pink Bandana) and holding "a Molotov" was the same person sighted on SPOG security footage wearing a blue mask, dark hoodie, and yellow/tan gloves (Tan Gloves) and the DCM paints a narrative that officers moved in to arrest an individual suspect allegedly carrying an incendiary device (or perhaps as many as a dozen of them), despite the clear contradiction in the suspects' descriptions.
This appears to be a clear inaccuracy.
Additional information accompanying the partial certification memo regarding this case further points out that the OPA contradicted themselves in a statement made to OIG wherein the OPA investigator on this case reportedly said that the "man seen with the Corona beer box" has "no bearing on the officer's [sic] initial entry into the crowd to arrest the incendiary device suspect. The box of Molotov cocktails was located later and the suspect was identified later, based on SPOG video." A footnote in the ethics complaint also notes that the OPA in the same statement said that the "man throwing the bag of trash" was also unconnected to the attempted apprehension of the suspect with the Molotov cocktail(s).
But because the OPA appears to have decided, per the DCM, that Pink Bandana was Tan Gloves, it claims that officers moved in to arrest this person and makes no mention of the clear contradiction between these two individuals.
While the TAC9 audio reflects that officers may have started to try to find a person with tan dress (clothes) and a pink bandana, the evidence suggests they did not in fact try to find or approach Tan Gloves, who was the person caught on the security footage. And this makes sense, as the person identified in the security video was not identified as being in possession of any incendiary devices or discussed whatsoever on police radio.
It should be noted that the OPA says in the DCM that it created the summary of events based on both body-worn video (BWV) and third-party video of the day's events. However, both third-party and BWV appear to dispute the OPA's claims regarding officers targeting Tan Gloves.
Footage that reporter Chris Rojas shared with the Emerald illustrates this. And not only did officers not approach the person caught on security footage, but this person was caught on both BWV and third-party video walking around in front of the officers. Rojas' footage, which the Emerald has included below, shows that this repeated behavior elicited no response from the officers at all.
In the section of the DCM titled, "Initial Crowd Contact and Perimeter," the OPA describes the moment officers on bicycles moved in to make at least one arrest. But here, it claims that "[v]ideo from a sergeant who led the arrest maneuver showed that, when officers contacted the crowd, a man in tan clothing matching the description and appearance of Subject #1 was visible."
Supplemental City documentation states that this is "grossly inaccurate," as an OPA investigator on this case told the OIG that Pink Bandana "'was never captured on BWV.'"
"OIG revealed from detailed BWV analysis, individual target of the arrest" — in reference to the third person who was actually targeted for arrest, Black Clothes — "was carrying a bag of trash, was not wearing gloves and WAS NOT IN TAN CLOTHING [sic]. Numerous screenshots show this individual [Tan Gloves] was not the molotov [sic] cocktail suspect, who was not noticed until later video analysis," the supplemental documentation reads.
The memo attached to the ethics complaint also reflects this, as it notes that "[t]he individual seen on BWV who the Sgt attempted to arrest was not wearing tan clothing and did not match the description or appearance of Subject #1. See attached photo comparison taken from BWV and arson flyer for Corona Beer suspect." The arson flyer is a reference to a poster created by SPD after the protest.
And again, Subject #1 — according to the OPA in the DCM — is Pink Bandana and Tan Gloves.
But the person police actually attempted to arrest for allegedly having at least one Molotov cocktail, per the BWV and the SPD flyer depicting the suspect's image, was actually wearing black clothing, had a grey backpack, and was carrying a black trash bag (again, Black Clothes).
The DCM continues with the narrative of events guided by its own false premise that the person targeted for arrest was the same person caught on SPOG's security footage (again, Tan Gloves) and that this person was caught on BWV (false in reference to Pink Bandana; true in reference to Tan Gloves, whom BWV shows officers made no attempt to arrest). The DCM says that when officers tried to arrest this person, protesters formed a wall preventing them from doing so. However, the DCM says, officers then managed to separate the crowd into two different groups, "allowing officers to establish a perimeter and begin moving the crowd north on 4th Avenue."
"At least three arrests occurred during this initial interaction between officers and the crowd. Also during this section of the incident, a large plume of white smoke was visible from within the crowd. At the time, the CAD log and radio reports suggested that this smoke was 'bear spray.' It was later determined to be a fire extinguisher," the DCM reads. This is true, according to the CAD report and the associated TAC9 audio the Emerald listened to.
The DCM then states that officers on bicycles "made initial contact" with the group of protesters, dismounting and using their bicycles to push the crowd back and that one person started to film the officers at close range but that an officer sprayed her with pepper spray. The person fell to the ground and a group of between seven and 10 protesters, including someone who was also filming, ran up to her.
Because this group of protesters was in the officers' way — the officers were still advancing, at this point — officers told them to move back. The second protester who was filming did not move back, so one of the officers named in the complaint sprayed her with pepper spray. Soon after, officers arrested another demonstrator who threw something at the officer who had pepper sprayed the second protester.
As this was happening, a second group of officers was busy pushing the second group of protesters in a different direction (south). The DCM claims that "Subject #1 (the Molotov cocktail suspect) appeared to be part of this group, but, after the initial contact, officers appeared to lose sight of him as demonstrators with shields attempted to prevent the officers from making arrests or moving the line." Again, this would have been impossible to determine, as Pink Bandana was never caught on BWV and, as previously noted, footage shows that officers never approached or appeared to mind the person whom the DCM also claims is Subject #1, Tan Gloves.
The DCM goes on to describe several arrests and pepper spray deployment. It also states that one of the officers named in the complaint (Named Employee #6 or "NE#6") assists with an arrest. The DCM says that, per BWV footage, this officer punches the person being arrested, referred to as Subject #3, in the face once with a closed fist. The OPA does not take issue with this in the summary, and does not sustain against this officer the allegation of excessive use of force — in fact, it later deems that officer's decision to punch this person in the face "Lawful and Proper." It bases this conclusion in part on the claim that both of the person's hands were beneath his body, stating "it was proportional to the threat that Subject #3 might attempt to use a weapon secreted on his person," due to the fact that a person concealing their hands under their body could be holding a weapon.
But the claim that this person's hands were concealed appears to be false.
Earlier in the DCM, describing the arrest, the OPA claims that the protester "was on his front with his left arm under his body and face, visibly struggling with officers. NE#6's BWV recorded NE#6 striking Subject #3 once in the face with a closed fist. This caused Subject #3 to move his arm out from under his body to shield his face. NE#6 and another officer took control of his left arm and placed it behind his back while officers on Subject #3's right side did the same with his right arm."
Later in the DCM, the OPA repeats the claim that the individual's hands were hidden from view, writing that the protester's "hands were under his body at the time and not visible."
However, supplemental City information regarding this DCM says that this is inaccurate, and that only one of the protester's hands was under his body, while his "[l]eft hand (side [NE#6] was on) was shielding his face and clearly visible" on BWV. The supplemental City material also states that this is a noted discrepancy in the officer's interview, as the officer claimed to OPA investigators that he could not see the person's hands.
Curiously, though the DCM records the pain response of NE#6 after a protester kicks him in the head — it states that "BWV recorded him [the officer] gasping in pain before he ultimately re-joined the police line" — it does not record the pain response of the person NE#6 punched in the face, which NE#6 later told the OPA was explicitly a learned tactic meant "to distract him [the protester] and obtain pain compliance."
The DCM then summarizes what it calls "Crowd Movement North and Shield Group." It describes a police tactic called a "power slide," which involves officers dismounting their bicycles, while still in motion, and sliding the back wheels into a line of people. The DCM says that this maneuver itself is not intended to be a use of force but also says that BWV shows the bike wheels hitting protesters' legs.
At least one officer pepper-sprayed at least one person, and two other officers used their bike wheels to hit protesters' legs in an effort to induce them to move forward. One protester, the DCM says, appeared to attempted to hit or grab an officer (Named Employee #5 or "NE#5"). This movement, which the DCM says was not fully captured on NE#5's BWV, showed both NE#5 and the protester falling down, after which NE#5 cursed at and arrested this person. Soon after, he told another officer that he had arrested the protester for assault.
In the following section called "Crowd Push North," the DCM describes similar situations as the above — officers using their bikes to push the crowd north — and states that some of the protesters are moving "notably" more slowly than others. It also notes that at least one protester appears to have bumped into an officer, after which the officer swung his bike around to hit her. This impact, according to the BWV, the DCM says, caused her to stagger but not fall over, and she continues to move away. A similar situation appears to happen with a different protester during this time, too, the DCM says.
The DCM continues on to discuss the point at which someone apparently within the crowd of protesters throws a Molotov cocktail, which bursts into flames. This happens during the time officers are herding the crowd north and east on South Holgate Street, just after one officer directs the crowd to "run," and another officer tells protesters to "start fucking running," as per BWV.
The Molotov cocktail explodes right in the middle of the more than half-street gulf between protesters and police, with a line of police almost across the street in a hook-like formation from the protesters who have been pushed to the sidewalk. Shortly after this, police threw blast balls towards the crowd, which the DCM says were deployed at the "edges" of the crowd, presumably indicating they were not targeting protesters. However, BWV shows that these devices explode very close to peoples' legs and at least one person can be seen limping away from the police on BWV after a blast ball explodes. This was not the first time during the summer 2020 protests when police use of "less lethal" weapons has hurt someone, as demonstrated in this case and this case.
It is at this point that the DCM wraps up the summary, saying that the police managed to push the protesters onto 6th Avenue South and towards Judkins Park, after which the protesters dispersed. It should be noted that 6th Avenue South crosses South Holgate Street two miles away from Judkins Park.
The DCM then summarizes the complaints submitted about that day. The first was that police had no justification to move in on the crowd and that their actions were unprovoked. Several complainants alleged that SPD falsified the narrative of a person suspected of carrying a Molotov cocktail. Some complaints also alleged that SPD planted an operative in the crowd with a Molotov cocktail in order to incite violence.
Another common complaint alleged that officers did not give dispersal orders before moving in. The Incident Commander for that day admits to this, but also gives a reason for it, which will be discussed shortly. However, it should be noted that at the time police moved in on the protesters, SPOG President Mike Solan had decided to start blaring country music — a song called, "Save A Horse, Ride A Cowboy" — so it's possible that the protesters would not have been able to hear any commands issued, even if they were.
A third common complaint alleged that at least some, if not all, of the arrests made that day were illegal, because they lacked probable cause. A fourth common complaint alleged that police used excessive force against protesters, both generally and during arrests. Third-party video shows protesters sobbing and rolling around on the ground after police have either taken them down — in at least one case, police piled on top of a person — or arrested them.
Finally, a fifth common complaint alleged that the police also targeted medics, specific demonstrators, and legal observers during the protest. Though video evidence does not appear to support this allegation, it should be noted that targeting legal observers was not then a new allegation: Just a few weeks prior, the National Lawyers Guild (NLG) accused SPD officers of the exact same thing.
The Emerald reached out to the NLG for comment, but they declined to speak with the Emerald for this story. The letter the NLG put out in July, 2020, that alleged police targeted legal observers no longer appears on the NLG's website.
The DCM also summarizes the video evidence from the day. However, there are glaring problems with this summary from the beginning, as the OPA continues with the narrative that Pink Bandana is the same person as Tan Gloves. As the Emerald noted above, not only was this latter person not identified until later, but police never moved in to arrest him, according to both official documentation and third-party video.
The DCM continues, discussing SPD records, the first of which is a brief recap of the CAD report. Here, the DCM states that "[t]he initial description provided stated that the suspect was wearing tan and a pink bandana [Pink Bandana]. OPA notes that this is not an accurate suspect description for Subject #1, who was wearing a dark blue hoodie and tan gloves [Tan Gloves]."
However, the DCM then goes on to claim that "[i]ntelligence provided an updated suspect description which was an approximate match for Subject #1." This is false and there appears to be no evidence to support it. Updated intelligence, according to TAC9 audio, identifies Black Clothes, not Tan Gloves — but even then, Black Clothes is never cited as carrying Molotov cocktails. As supplemental City documentation critical of the OPA's conclusions in this DCM notes, the person the DCM alleges was carrying a box of Molotov cocktails was wearing a dark hoodie and yellow or tan gloves (Tan Gloves), but this does not equal a person in black clothing with a grey backpack carrying a trash bag as the ultimate suspect was identified to be (Black Clothes).
"Intelligence reveals individual is wearing black clothing, with gray backpack, carrying trashbag," the supplemental City documentation reads, referring to the person in officer BWV who was later targeted for arrest but who is clearly not carrying a box of Molotov cocktails in the BWV. In fact, supplemental City documentation shows that when the officer grabs the bag during the attempted arrest and opens it, there are no Molotov cocktails visible inside and the officer appears to have grabbed the bag with enough force to have knocked any Molotov cocktails in a box loose. However, the picture SPD later claims to be the box of Molotov cocktails in question is neatly arranged.
The DCM then discusses the Use of Force (UoF) incidents, which the OPA says it attempted to match to specific arrests and the incidents it detailed throughout in the narrative summary preceding the section. Here, the OPA says that when they are used to strike people, bicycles should be counted in UoF incidents, per the SPD manual. However, the OPA states in the DCM that it "did not identify use of force statements for any of the bicycle strikes or pushes detailed above, including the strikes by NE#6 and NE#8 which involved lifting at least one wheel of the bicycle from the ground to strike a person. Similarly, no Use of Force reports or statements were made when officers used the front tire to push or hit a person's legs."
The OPA also repeats again the claim that NE#6 could not see the hands of one of the people he assisted in arresting, which the Emerald detailed above — however, again, as mentioned earlier in this story, that person's left hand was visible in BWV.
The DCM briefly covers bicycle crowd management methods, which were then current as of 2019. The OPA here states that "[a]s described in that training, point officers (the officers leading the movement to deploy a new line) are directed to stop at the center of a desired line formation and to do so 'as close to the crowd as safely possible, without making contact.'" It also says that 2018 prisoner control methods "describes a range of responses, beginning with control holds and escalating to closed-fist strikes for noncompliant subjects." It is immediately unclear to what document the OPA is referring.
The DCM moves on to discuss witness interviews, the first of which is from SPOG President Mike Solan. The OPA says that there are allegations that SPD and SPOG coordinated crowd response by using the music SPOG played that day as a cue for crowd control. Solan denies this and says that he played the music to drown out the crowd. The DCM also said that Solan stated he "had been informed by SPD that an individual in the crowd might attempt to use violence or commit property destruction, and noted that on prior occasions members of the public had attempted property damage or vandalism at the SPOG building."
A second witness employee who did not interact with protesters but who was a supervisor that day, discussed bicycle tactics and said that though officers are not supposed to "power slide" into people, it's a "trained tactic" and that he didn't believe that it should be reported as a UoF unless there was a complaint of pain. He furthermore stated that, in this particular situation, he believed that the reporting requirement would fall on the Incident Commander.
The DCM then covers Named Employee interviews. The first person whose interview is discussed is Named Employee #1 (NE#1), who the DCM says was Incident Commander (IC) that day. The Emerald has learned that this person was Capt. Matthew Allen.
In his interview, Allen recaps the day's events for investigators. However, the DCM claims that he "noted intelligence about Subject #1, who was observed with Molotov cocktails." According to official supplemental documentation, this is false. Allen actually stated in his OPA interview that he was not aware of the person carrying the box of Molotov cocktails and says that he didn't find out about that until later. It is unclear why the OPA would continue this inaccurate and easily disproved narrative that the person targeted for arrest (Black Clothes) was the same person captured on SPOG security footage (Tan Gloves).
The DCM continues with this false narrative. It goes on to state that Allen and other supervisors worked together to plan for the arrest of this person allegedly carrying Molotov cocktails. However, as noted several times at this point, this would have been impossible, since the person who was actually targeted for arrest — wearing all black and a grey backpack, carrying a trash bag (Black Clothes) — was not the same person as Tan Gloves, and Tan Gloves was not spotted, much less identified in connection with the Molotov cocktails, until later.
Allen also states in his interview that he did not coordinate with SPOG to play music nor did he order officers to strike people with their bike tires.
The DCM then directly contradicts its own claim about what Allen said: "During the incident itself, he was not aware of an individual specifically carrying a box of Molotov cocktails and only learned about the Molotovs when the box was later recovered by SPD's bomb squad." It is unclear how Allen could have directed the arrest of a person carrying Molotov cocktails if he did not have specific intelligence about it.
The DCM also includes summaries of interviews with several other officers, all of which readers can find in the DCM itself linked above. These interviews cover allegations of excessive uses of force, improper use of less-lethal weapons, and unprovoked arrests. The DCM does not appear to contain any misinformation about these issues in its interviews with Named Employees #2—5 and #7—9, but it repeats the false claims the Emerald has outlined above with regard to NE#6.
The OPA then analyzes the allegations brought against each of the officers. It states that the substance of the first allegation against Allen is that "in ordering the arrest of Subject #1, [Allen] and subordinate supervisors effectively dispersed the demonstration crowd without meeting the requirements imposed by SPD policy."
This is, however, inaccurate. As supplemental City documentation points out, it appears unlikely that Allen ordered the arrest of the person originally deemed Subject #1 (Tan Gloves), the person caught on SPOG security video. Allen didn't even know this person existed until after the fact. Tan Gloves was neither the person originally described over police radio — Pink Bandana — nor the person actually eventually targeted for arrest (Black Clothes).
But because the OPA appears to have decided in the course of the DCM that the person targeted for arrest was simultaneously Pink Bandana, Tan Gloves, and Black Clothes, it determines that "the decision to arrest Subject #1 was imputable to [Allen] as the Incident Commander, even if the actual order to do so and the timing of that arrest were actually made by his designees. As [Allen] noted in his interview, he participated in this decision and received intelligence updates throughout."
The evidence contradicts this.
The OPA continues, saying that it "finds that the decision to conduct a targeted arrest was not, in itself, a decision to disperse the crowd. First, the record clearly shows that [Allen] intended to use targeted arrests as an alternative to crowd dispersals. Second, OPA's examination of the CAD report, radio traffic, and interviews all suggest that the decision to disperse the crowd was reached independently from the decision to attempt a targeted arrest of Subject #1, that [Allen] had a factual basis for reaching that conclusion, and gave the required orders as analyzed below."
Again, there was no targeted arrest of the person (Tan Gloves) that the OPA claims was SPD's target. There was an arrest attempt of Black Clothes, per the DCM and BWV, and officers relayed a description of Black Clothes over police radio that day, according to the CAD report and TAC9 audio. However, both third-party video and BWV appear to disprove the idea of a targeted arrest, as these videos show officers heading into the crowd in an unspecific direction — not toward a single individual — and almost immediately arresting and using force against many protesters. This throws into question the claim that SPD's aim was not to disperse the crowd but only to target one person allegedly carrying a dangerous weapon for arrest.
However, the OPA appears to ignore this and, further, appears to convey a specific reason for doing so: The OPA writes in the DCM that it "declines" to reach a conclusion that, under the Federal Consent Decree, would legally bar SPD from policing demonstrations, because the OPA claims that these protest situations could become dangerous without police. For that reason, the OPA writes, it will not sustain this allegation.
It is unclear how this conclusion aligns with the Consent Decree, as OPA's purpose is to hold SPD and its officers to account.
With regards to the second allegation against Allen, which deals with crowd management and dispersal, the OPA uses the false narrative of a targeted arrest to prop up its conclusion that Allen's actions were within policy bounds. In its conclusion regarding Allen's failure to give an immediate dispersal warning, the OPA writes that "[d]ispersal orders must be given when 'feasible,' and at the time [Allen] ordered the crowd dispersed officers were already in contact with the demonstrators based on their attempt to arrest Subject #1. This rendered any 'warning' moot. This is certainly not an ideal outcome. However, in situations such as this where a clear exigency exists, OPA agrees that feasibility considerations can overcome the requirement for warnings to be given."
Once again, officers never tried to arrest Tan Gloves, the person originally deemed "Subject #1."
Additionally, though the the DCM does not address this, the Emerald would like to note that it's unclear why officers would have waited to move in on a group of people among whom is a person carrying a dangerous weapon (the situation, as the OPA puts it, "where a clear exigency exists") until said group got to SPOG headquarters — the very place and people inside of which SPD officers later claimed they were trying to protect.
While the OPA writes in the DCM that it finds Solan's decision to play music to "drown out" the protesters "juvenile and entirely improper," it also says that "there is no evidence connecting the actions of SPOG with those of [Allen], his designees, or any of the officers assigned to the demonstration." In other words, the OPA did not find that this was a coordinated effort on the part of Solan and Allen and does not sustain this allegation against Allen. It further writes that it could not find a link between the music and the time officers began riding towards protesters, which it says was one minute and nine seconds after the song began.
With respect to the allegation against NE#2, which states that the officer employed excessive force as it pertained to using his bike to push protesters, the OPA writes that though it does not find that this was excessive use of force, it still recommends management action. This particular recommendation suggests that SPD should "select a group of officers and supervisors with particular expertise in bicycle tactics and crowd control to critically evaluate the tactics described above, with the goal of determining the proper applicability of these tactics to different crowd control situations and any limits that should be placed on their use." It also recommends that SPD engage the community and accountability bodies with an eye to any needed policy development. It recommends similar management action in its second unsustained allegation finding against NE#2.
The OPA clears NE#3 of an improper arrest allegation, and then moves on to NE#4, who faced allegations of improper pepper spray use. While the OPA clears the officer of the allegation that he should not have used pepper spray, it once again bases this conclusion in part on the false narrative of the targeted arrest of Suspect #1.
"At the time, [NE#4] had reason to believe that the arrest was targeting Subject #1, the Molotov cocktail suspect, and that this arrest was therefore both a matter of exigency and one which presented a particular risk of violence if interference occurred," the OPA writes. "OC spray was necessary to secure the arrest against the potential for interference, and it was proportional to the risk that members of the crowd who approached the police line might engage in violence."
The OPA then uses the same justification with regards to two other people against whom NE#4 used pepper spray.
The OPA clears NE#5 of allegations of excessive use of force, retaliation, and lack of professionalism before addressing the allegations against NE#6. As the Emerald noted above, the DCM repeats the false claim that NE#6 could not see the hands of the person in whose arrest he was assisting and therefore clears him of the allegation of excessive use of force in that instance. It also clears him of an excessive force allegation with regard to using the back wheel of his bike to strike another protester, due to the chaotic situation and the fact that "at the time he used force, NE#6 had a fractured knee and was almost certainly suffering concussion-like symptoms."
The OPA similarly does not sustain an excessive force allegation against NE#7 but it does against NE#8 for striking two people in the back with his bicycle and another for lack of professionalism. The DCM does not contain the suggested discipline for NE#8. There are no sustained allegations against NE#9.
In response to a number of questions from the Emerald, Myerberg said in a Sept. 20 email that he would soon be publishing an amended DCM that would answer most of the Emerald's questions. However, it is unclear how an amended DCM could address the discrepancies or fundamentally change the outcome of this case — or indeed how the document itself can be substantially changed, since the law prohibits the OPA from redoing an investigation. The OPA has publicly released the Case Closed Summary for part I of OPA case 2020OPA-0587, which appears to be based on the same core narrative as 0583.
As the Emerald referenced earlier in this story, it also obtained an April 2021 email from Myerberg that appears to suggest nothing will fundamentally change. The email is dated April 5, 2021.
In the email, Myerberg specifically requests an administrative extension for Allen, who belongs to the Seattle Police Management Association (rather than SPOG), purely to align deadlines with regard to the investigation and the original 30-day extension Myerberg had sought for the case in November 2020, which he references in this email. In this email, Myerberg specifically says that the extension sought would move the investigation deadline to April 12.
"This extension will not prejudice Captain Allen as the portion of the case involving his actions has already been drafted and all the findings against him are Not Sustained. It will simply align the SPOG/SPMA deadlines as originally intended," the April 5, 2021, email reads.
The Emerald responded to Myerberg to ask how an amended DCM could change anything in this case, given the law. In this follow-up email, the Emerald also specifically mentioned OPA case 0587 and how it's already been publicly released, as well as Myerberg's April 2021 email. Myerberg did not respond further to the Emerald, so the answer as to what could change with an amended DCM, as well as the answers to the Emerald's other questions, remain unclear.
Additionally, despite being listed as "active" on the City of Seattle's data portal, the investigation for 0583 bears an end date of April 8, 2021, the same date listed on the DCM.
The Emerald also sent questions directly to Assistant Chief Thomas Mahaffey, who is listed at the top of the COC in the DCM. Mahaffey responded to tell the Emerald that it needed to send questions to SPD's media department. The Emerald responded to note that the answers to these specific questions appeared to have been ones only Mahaffey could have known, unless SPD's media arm is privileged to know information about OPA investigations. Mahaffey did not respond, and the Emerald sent questions to SPD's media officer Sgt. Randall Huserik. Huserik said that because the investigation is still marked as "active," SPD could not comment on the matter.
Finally, the Emerald learned via email evidence that Seattle City Councilmember Lisa Herbold has been aware that the DCM appears to have been finalized since April and that it appears to be riddled with discrepancies for more than a month, at the time of this writing.
The Emerald reached out to Herbold on Sept. 22, who copied the OPA in her response the same day to ask whether the case had been granted an additional 180-day extension. She also said that the case has not been closed per the OPA Demonstration Complaint tracker.
However, as the Emerald noted in its reply to her, the end date listed on the DCM is April 8, and any conclusions it has reached are final per the rules defining the OPA's powers.
On a related note, the Emerald also pointed out in its email to Herbold that, as previously noted in this article, OPA case 2020OPA-0587 — which also dealt with complaints related to the Labor Day 2020 SPOG protest — has been closed. The Emerald noted that, based on the first part of that case's public-facing CCS, it appears that the conclusions reached in that case were also based on the apparently factually faulty narrative present in 0583. However, despite the OPA already releasing part of case 0587 in public-facing form, the OPA has made no public mention of this case and the narrative upon which it and the OPA's conclusions are based, which appears to mean that the OPA did not find the issues within the core of the narrative worthy of note.
Herbold replied that she confirmed with the OPA that while the case did not receive an additional 180-day extension, "[t]he case was submitted to the discipline committee in advance of a discipline meeting on April 15, 2021." Herbold here was speaking about the disciplinary meeting held to discuss NE#8's two sustained allegations, in accordance with procedure outlined in the OPA manual.
"Based on the discussions at the meeting, the Director decided to amend his findings. That amendment has not yet been completed based on workload issues, so that's why the case has not been finalized and closed," Herbold's reply read.
However, as the Emerald pointed out in its reply, it is still unclear how an amended DCM would change anything, because once an investigation is closed or the deadline has passed, the OPA cannot reopen an investigation and it cannot reinvestigate officers for the same allegations. Even if it chooses to sustain allegations past the 180-day investigation deadline, the OPA manual states that no discipline can be imposed. Moreover, Myerberg said in his April 5 email regarding aligning deadlines that the OPA's decision not to sustain allegations against Allen would not change, regardless of the 30-day extension. SPOG iterated this in its email back to Myerberg: "We further understand that Allen's complaint status of "Not Sustained" will not be impacted or altered by the agreement."
Given this context — as well as the fact that the disciplinary meeting in question was specifically to discuss the Sustained finding against NE#8, again as per procedural rules described in the OPA manual on pages 7 and 39 — it appears unlikely that anything would substantially change, except that the OPA may instead sustain no allegations against any officers. The OPA manual clearly states on page 39 that "[u]nless, based on the discussion, the OPA Director amends all Sustained findings to Not Sustained findings, a disciplinary recommendation is discussed."
The Emerald also pointed out that the first part of the CCS for 0587 — which, again, also appears to be based on the same flawed narrative — had been publicly released 15 days after the disciplinary meeting (though it should be noted that the issue date on that CCS is April 9). It is unclear why the OPA would choose to delay the release of findings for 0583 but not 0587. It also raises the question of how thoroughly investigation results are scrutinized and whether the narrative was the central issue at play in the decision to delay the release of findings for 0583.
Additionally, the Emerald would also like to point out that it would have been impossible for the OPA to stop the clock on the investigation deadline for 0583 at the disciplinary meeting on April 15: The investigation deadline, which had already been extended by 30 days, had passed three days prior, on April 12, according to the deadline date (180 Date) listed on the 0583 DCM, as well as Myerberg's April 5 email, which states, "We sought a 30-day extension to the 180-day deadline for this case for SPOG named employees … This was granted by SPOG and extended their deadline to 4/12."
Therefore, the only deadline that would not have passed would have been the deadline for the COC to comment on the findings — which, per the OPA manual, happens after an investigation has ended — but that is not the same thing as an OPA investigation deadline. By the time the disciplinary meeting happened on April 15, there was no investigation deadline clock to stop. It had already stopped by virtue of the investigation deadline having passed.
Lastly — again, per the OPA manual — disciplinary meetings do not occur if the investigation portion of a case is still active.
Herbold's legislative assistant Newell Aldritch responded to the Emerald on the evening of Sept. 23 with a terse message that acknowledged none of the Emerald's points contained in its Sept. 22 response to Herbold: "[T]he case isn't closed yet; CM Herbold wants to be able to read it first, and not speculate w/o reading it. Thanks."
As of this writing, the Emerald has not heard back from anyone at the OPA.
The Emerald will continue its examination of the events of the Labor Day 2020 protest at SPOG headquarters in a future article.
📸 Featured Image: Screen capture from video by Chris Rojas of the police action against protesters at SPOG on Labor Day 2020.
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Before you move on to the next story …
The South Seattle Emerald™ is brought to you by Rainmakers. Rainmakers give recurring gifts at any amount. With around 1,000 Rainmakers, the Emerald™ is truly community-driven local media. Help us keep BIPOC-led media free and accessible.
If just half of our readers signed up to give $6 a month, we wouldn’t have to fundraise for the rest of the year. Small amounts make a difference.
We cannot do this work without you. Become a Rainmaker today!