Unreleased Investigation Sheds Light on Police Use of Tear Gas on Protesters in 2020

Report reveals officers who made decisions to permit police tear gas use were treated only as witnesses by OPA.

by Carolyn Bick

The Emerald has obtained documents that reveal new information regarding one of the two open 2020 protests-related investigations into former Seattle Police Department (SPD) Chief Carmen Best. The documents the Emerald obtained are draft reports that specifically regard the investigation into the use of tear gas on protesters on June 7, 2020, into the early hours of June 8, 2020. The incident ties into the abandonment of the East Precinct on June 8, 2020.

While these documents are technically drafts of a forthcoming report by the Seabold Group — the outside agency the Office of Police Accountability (OPA) contracted to investigate the two cases involving Best — they appear to highlight several key points, based on the investigative interview snippets contained within. Based on the file names of the documents the Emerald received, Seabold submitted its first draft report on Oct. 26, 2022, and an amended draft report on Jan. 4, 2023. The Emerald will be focusing on the most recent version of the draft report, dated Jan. 4, 2023. Neither draft report contains conclusions.

Summary

According to the draft report, between May 31, 2020, and June 5, 2020, Best had temporarily given officers full-scale authorization to use tear gas (also known as CS gas). This authorization was replaced on June 5, when Best limited its use, but the draft report appears to show that Best was not solely responsible for the use of tear gas when it was deployed two days later, during the June 7—8 protest.

The report reveals that SPD Assistant Chief Thomas Mahaffey believed himself to be acting on authority from Best, per a conversation in which Best delegated protest response authority to him, prior to the June 7 protest. Mahaffey also cited delegated authority when OPA investigators interviewed him about the East Precinct abandonment in 2020.

However, Seabold's report also shows that Mahaffey did not receive an explicit directive from Best to act as her designee in relation to the order limiting the use of tear gas. Based on what Mahaffey told the Seabold investigator, because he was the operations commander for the event in question, it appears Mahaffey considered himself to have the authority to order or allow police to use tear gas on protesters.

The document also reveals that now-former SPD Capt. Matthew Allen, who was on scene at the protests, appears to have called for police to use tear gas with the understanding that he had explicit permission from Mahaffey. Allen states there was a report of someone with a gun in the crowd — a statement Mahaffey echoes, stating there were "several" such reports, but additional sightings are not documented in Seabold's draft. A footnote in the draft cites a report of a person with a gun, which had been documented about two hours prior to Allen's order allowing police to use tear gas. The report does not cite any other specific reports of a person with a gun.

Though there had been a shooting earlier in the evening of June 7, an internal SPD email the Emerald has separately obtained shows that by just after 9 p.m., SPD deemed it unrelated to the protests and that the police had already apprehended the person responsible.

Allen said in a November 2020 OPA interview that Mahaffey told him "to keep our officers safe and defend the East Precinct. He told me if things turn violent and there is a life safety need to use CS then I was authorized to do so."

Following that call, Special Weapons and Tactics (SWAT) officers made individual decisions to use the gas on protesters, according to the documents the Emerald obtained.

The documents regarding the investigation cite attachments — such as Mahaffey's November 2020 interview, his later interview with the Seabold investigator, other officer interviews the OPA conducted in 2020, and several other pieces of documentation.

The Emerald asked SPD's public disclosure unit twice for the attached records, on May 12 and May 15, but SPD's public disclosure team has not provided the documents, though they were directly attached to the original draft reports, per footnote notations throughout. Instead, SPD told the Emerald on May 15 that it would have to file a new records request for them. The Emerald will address this claim later in this story.

The Emerald asked SPD's communications unit on May 18 whether there were any other protest-linked sightings of firearms during the June 7—8, 2020, protest, in addition to the sighting two hours prior to Allen permitting officers to use tear gas. It also asked about the internal email. SPD's communications team responded on the morning of May 19, telling the Emerald, "Unfortunately your questions are not ones that can be answered without a fair amount of time consuming investigation of our own. Due to the amount of events happening as well as being down staff we just don't have the time to do this type of research.

"Please feel free to turn [sic] a Public Disclosure request to review documents that may answer your questions," the email ends.

As of this writing, the OPA has not publicly updated anything about this case since August 2020, per the department's complaint tracker.

Neither the OPA nor Seabold responded to the Emerald's requests for comment. The Emerald sent the OPA and Seabold questions on the afternoon of May 18 and followed up with the OPA again on May 22. In its communications with the Emerald for the story about the Seabold Group's contract, published earlier this month, the OPA had asked the Emerald to give a two-day grace period for questions, which the Emerald provided, as asked, for this story.

Due to the depth of this story, the Emerald has broken the article into sections.

The Draft Report From January 2023

The documents the Emerald received about this investigation are two draft reports. The Seabold Group submitted a first draft to the OPA in October 2022 and an amended draft report in January 2023. Though the draft reports are undated, they contain quotes from the interviews of several officers involved in the complaint in varying capacities. Per the contract with the Seabold Group, one of Seabold's principals, Kris Cappel, was the lead investigator on the case.

Because it is the most recent version now available to the public via this story, the Emerald will be detailing the amended draft report submitted to the OPA in January 2023.

The draft report states that these interviews were conducted as early as November 2020, which appears to indicate that these investigations remained virtually stagnant until the spring of 2022.

These interviews also reveal that the OPA only treated Best as an "involved officer" and treated two decision-making officers as what the OPA calls a "witness officer." Witness officers are those officers who are simply interviewed as witnesses and do not face the possibility of discipline for the allegations outlined in a case, while involved officers are officers who are directly named as facing allegations and possible discipline.

The draft report also appears to show that the Seabold Group re-interviewed only Mahaffey, and only attempted to contact Best and Allen for interviews. Best and Allen declined to be interviewed, because they were no longer part of SPD when Seabold began its investigation.

However, based on the evidence cited in the Seabold draft report, it does not appear the OPA conducted any interviews with Best about this case in 2020. It is unclear why, considering the OPA opened an investigation into the case in June 2020, while Best was still chief of police. Best did not resign until September of 2020. The Emerald asked the OPA about this, but the OPA did not respond.

It is unclear why Cappel did not attempt to contact any other officers who would have insight into the case. This includes Lt. John Brooks, the only other named witness officer, who is still with SPD, and any SWAT officers or other officers on the ground at the protest in question. It is equally unclear why the OPA did not identify more witness officers, given how many were at the protest and the amount of footage available via officers' body-worn video to identify them.

Moreover, the draft report appears to show that the Seabold Group relied on preexisting OPA and SPD documentation as its primary sources, as well as publicly available media, such as protest streams. It is unclear whether Seabold independently searched for evidence available in the public media, or whether it only relied on public media sources the OPA had used in its original case file. The Emerald asked the OPA and Seabold this question, but neither responded.

The draft report makes no mention of attempting to obtain additional internal texts, emails, or other documentation, though, as outlined above, it does note where interview attempts failed. Presumably, if the Seabold Group had attempted and failed to obtain further documentation, the draft report would have noted it.

The Emerald asked the OPA whether the Seabold investigator re-interviewed any of the other officers, including Brooks, or made any attempts to obtain texts or other documentation. It also asked the OPA why OPA investigators did not interview Best between when the agency opened the case (June) and when she resigned (September), as well as why it only named her as the involved officer. As noted earlier in this story, the OPA did not respond.

Complaint Summary

The draft report opens with a complaint summary. It quotes from an internal SPD email, sent through the department on June 5, 2020 (the draft report does not name an author), which stated that "the temporary authorization for personnel, other than trained SWAT officers, to deploy CS canisters for purposes of crowd control has been rescinded."

The email continues, "Where SWAT is on-scene, consistent with Manual Section 14.090(4), SWAT will follow all department policies and procedures regarding the use of specialty tools, to include the use of CS gas, in life-safety circumstances and consistent with training. "In such instances, and until further notice, any deployment must be approved by the Chief or the Chief's designee."

A footnote states, "Ordinarily, only Special Weapons and Tactics (SWAT) officers are authorized to use CS gas as a crowd control tool. Chief Best, however, had temporarily authorized patrol officers to deploy CS canisters during the demonstrations that occurred May 31, 2020, through June 5, 2020, because the department had depleted its other less lethal tools."

However, as the draft report notes, that changed within a matter of days:

On June 8, 2020, at 12:14 a.m., former SPD Capt. Matthew Allen authorized members of SWAT to deploy CS gas during a protest event near the East Precinct located in Seattle's Capitol Hill neighborhood. The order was rescinded at 12:46 a.m. During that 32-minute period, only SWAT members deployed CS gas. This use of force incident is referred to as Event 2020-183044. On June 9, 2020, the City of Seattle's Office of Police Accountability (OPA) received a citizen complaint alleging that SPD employees used CS gas after it had been "banned" by Chief Best. A preliminary intake investigation was conducted by OPA Investigator Sgt. Leslie Smith and the Case Summary — Report of Investigation was submitted on June 30, 2020.

In other words, investigations into police use of tear gas on protesters were already well underway by the end of June 2020.

However, as noted in the Emerald's first story in February 2023 regarding this matter, it appears former Mayor Jenny Durkan's office pushed for the OPA to delay any investigations involving Best. Documentation detailed in that story also shows that former OPA Dir. Andrew Myerberg appears to have suggested that, per City policy, the Mayor's Office can opt to hire an outside investigative agency.

The draft report states that the OPA and SPD retained the Seabold Group to conduct an investigation into Best, but it does not note the length of time that passed between the initial case summary submission and Seabold's retention.

According to emails detailed in the Emerald's first story, the Mayor's Office and the OPA were going back and forth about investigations regarding Best in late July 2020. The Seabold draft report touches on officer interviews the OPA conducted in late 2020, but further documentation the Emerald has obtained shows the investigations do not appear to have continued in any particular capacity until 2022, when the OPA started working with the Seabold Group.

In discussing the complaint itself, the draft report cites several complaints made to the OPA about the use of tear gas on protesters, in a non-specific way. It states that the OPA itself is the complainant, rather than any group or individual community members. The OPA named Best as the only involved officer in the complaint. As the draft report later reveals, the OPA interviewed both Mahaffey and Allen only as witness officers, rather than involved officers, despite the fact that Mahaffey authorized Allen to permit police to use tear gas.

It is unclear why the OPA would only name Best as an involved officer. The OPA did not respond to the Emerald's question about this.

The draft report states that the "OPA alleged that the deployment of CS gas on the morning of June 8 may have been an abuse of discretion, unprofessional, and undermining of public trust and confidence in the Department," citing a number of alleged SPD policy violations.

The report also says it believes two other policies involving both chain of command and truthfulness are at issue.

Notably, the OPA manual that was in effect until the end of 2021 — and, thus, during the initial OPA investigation into this matter — states, "Dishonesty by SPD employees may be admissible in court and used to impeach their credibility, rendering an employee potentially unable to perform his or her duties involving court testimony (see below). Dishonesty by SPD employees may also result in discipline, up to and including termination, as well as possible civil penalties, criminal prosecution and loss of Washington State law enforcement certification."

No such language exists in the current OPA manual, which was submitted to the Federal Court in October 2021, and enacted on Jan. 1, 2022. The Emerald asked the OPA for the rationale behind removing it. The OPA did not respond.

The draft report states that for the investigation in question, "Seabold Group reviewed OPA's June 30, 2020 Case Summary — Report of Investigation, and the accompanying documentary records.

"Those records are incorporated herein by reference and will not be restated in this report," the draft report says. "Seabold Group also conducted an extensive review of publicly available records, including social media posts and various media reports relating to the deployment of CS gas on June 8, 2020."

Additionally, the draft report cites in a footnote that an investigation classification — which, according to the OPA, indicates how a complaint "will be processed" — notification to Best is attached as Exhibit 3.

Several such footnotes noting attachments exist throughout the draft report, including a footnote that cites a new, Seabold-conducted interview of Mahaffey on June 17, 2022. SPD's public disclosure team refused to provide the attachments to the Emerald, an issue the Emerald will detail later in this article.

Post-June 7—8 Protest: Events Summary and Summary of Factual Findings

The draft report summarizes the events following June 8, citing multiple suits against the City of Seattle "alleging the use of excessive force during protests that occurred from May 29 through the date of the filing." The draft report states "the federal complaint" is attached. While the Emerald was not provided with this attachment, the draft report is talking about the ongoing suit by Black Lives Matter Seattle-King County's (BLMSKC) against the City of Seattle on June 9, 2020.

In the original filing on June 9, the plaintiffs asked for a temporary restraining order (TRO) to keep the police department from using chemical irritants and projectiles. The court granted a partial TRO, stating SPD officers could not use chemical irritants.

However, Seabold's draft report notes the court also said this ruling "did not preclude individual officers from taking necessary, reasonable, proportional, and targeted action to protect against specific imminent threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property.' In its ruling, the Court referred to video-evidence taken during June 1 protests, but there were no specific findings as to the deployment of CS gas on June 8, 2020. As part of its investigation, Seabold Group reviewed the docket and litigation records that were available as of the date of this report."

Seabold's draft report then gives a summary of factual findings in its investigation. It states that on June 5, 2020, Best rescinded a temporary order that had allowed ground officers other than SWAT officers to use tear gas. The report says she announced this publicly and internally, and that it was "inaccurately" described by some as a 30-day ban.

"In fact, the order restored SPD's policy, which provided that under normal circumstances, SWAT members were authorized to use CS gas," the draft report reads. "The amended policy continued to authorize SWAT to use CS gas for crowd control purposes. The only apparent modification to SPD's policy was that SWAT needed approval from the Chief or her designee before deploying CS gas."

The draft report then goes on to state that, per SPD's command structure, Best "had the discretion to delegate her authority, but she remained responsible for her subordinates' decisions. [Assistant Chief (AC) Thomas] Mahaffey was the incident commander at all relevant times and he believed he was the Chief's 'designee' for purposes of the June 5, 2020 directive.

"On June 7, 2020, AC Mahaffey delegated his authority to order the deployment of CS gas to Capt. [Matthew] Allen, who was the operations section chief. On June 8, 2020 at 12:14 a.m., Capt. Allen exercised his discretion as the operations chief and ordered SWAT to deploy CS gas based on his assessment of the public-safety issues at the time," the report continues, before stating: "It does not appear that Capt. Allen sought or obtained approval from AC Mahaffey or Chief Best before issuing his order."

However, the draft report states, Mahaffey claims Allen did not need his or Best's approval to use tear gas. Mahaffey tells the investigator that Allen "had the authority and the discretion to issue the order if he deemed it necessary and appropriate under the circumstances."

But the report suggests this is incorrect, as were the reports pinning the decision on Best — thus appearing to suggest the OPA's sole focus on Best was too narrow:

On June 11, 2020, Chief Best explicitly stated during a press conference that it was her decision to deploy CS gas on June 8. The totality of her public remarks gave the impression that she had been consulted before the order was issued and agreed that the circumstances warranted the use of CS gas. Based on the evidence gathered in this investigation, it appears that Chief Best learned of Capt. Allen's order to deploy CS gas after it had been issued. And though Chief Best may have intended to take responsibility for her subordinate's actions, after-the-fact, her public statements were not as forthcoming or transparent as they could have been. Chief Best could have stated that she had delegated her authority to her command staff, and that based on a review of the information available to her, she agreed with Capt. Allen's decision to order the use of CS gas.

The original complaint submitted to OPA seems to have assumed that Chief Best issued the order to deploy CS gas two days after she had announced that she had banned its use for 30 days. Neither of those factual predicates were accurate. [Latter emphasis the Emerald's]

Officer Interviews

Former Capt. Matthew Allen

The draft report then summarizes its investigation. It quotes from several different officer interviews originally conducted by the OPA, beginning with Allen.

The draft report says Allen drafted a "detailed" use of force (UOF) report concerning the events of June 7 and June 8, 2020, and notes that a copy of the draft report is attached. In the UOF report, Allen writes "that he had worked six shifts in a 'demonstration management role'" prior to June 7, 2020. On June 7, 2020, he attended a roll call along with Lt. John Brooks, the day's assigned deputy operations chief. The draft report quotes some of Allen's statements to officers during that roll call, which readers can find in the draft report itself, linked at the beginning of this story.

"In his UOF report," the Seabold Group's draft report reads, "Capt. Allen also stated that he was familiar with the Chief's June 5 email placing limitations on the use of CS gas and said that he had spoken to AC Mahaffey about the Chief's directive. Capt. Allen said that AC Mahaffey told him he (Mahaffey) was the Chief's 'designee' for purposes of the email and instructed Capt. Allen 'to keep our officers safe and defend the East Precinct. He told me if things turn violent and there is a life safety need to use CS then I was authorized to do so.'"

The report then outlines events Allen noted in his UOF report that eventually culminated in his order permitting police to use tear gas on protesters. He states, "I then heard someone on the radio announce that there was a man with a gun at 11th and Pine St. and I was gravely concerned that someone was going to get shot and killed. There had already been one person shot earlier in the evening and I did not want there to be another."

A couple of key footnotes accompany this section.

One regards the use of body-worn video in investigative efforts. It shows that the Seabold investigator did not review the action on the ground, because she did not deem it to be within the scope of the investigation. It states:

Officers were ordered to activate their body cameras at approximately 7:35 p.m. (1925 hours) [The Emerald has noted the time mismatch here, neither the OPA nor Seabold responded when the Emerald requested clarification regarding the correct time.]. As such, there should be numerous recordings available that show the conditions on the ground as the evening progressed. This investigator did not request to review those videos because the actions of the officers and command staff were not within the scope of the investigation. The scope of this investigation was limited to whether Chief Best abused her discretion in ordering the deployment of CS gas or otherwise engaged in misleading or unprofessional conduct.

Another states, "There had also been earlier radio communications reporting a man with a gun (10:06 p.m.)." This footnote says SPD's dispatch log, showing this, is attached, but it was not part of the documents SPD gave the Emerald. It is unclear whether this was the only report of a gun, and whether it was this report Allen cites, because Allen does not give an approximate time for the report he said he received.

As indicated earlier in this story, the Emerald asked SPD's media team on May 18 about whether there had been any additional protest-linked firearm sightings. SPD's media team said it could not answer the Emerald's question. Neither the OPA nor Seabold responded to the Emerald.

Additionally, as mentioned earlier in this story, the Emerald separately obtained an email showing that, just after 9 p.m. on June 7, SPD officers had determined the shooting was unrelated to the protests, and just occurred on the same block.

"In case you do not get the info from another source. We just had a shooting in the area of our ongoing protest in our East Precinct. The suspect is in custody. … The shooting is not directly related to the protest," then-SPD Lt. Grant Ballingham writes in a June 7, 2020, email. The email is addressed to a "Sarge" DeMarco — whose first name is unknown, but appears to start with a "D" — at an email address associated with the New York and New Jersey division of the U.S. Office of National Drug Control Policy. Ballingham also CCs then-SPD Sgt. Shane Anderson, citing Anderson in the email as the point of contact.

It is immediately unclear why Ballingham would be sharing this with a drug policy enforcement office. As indicated earlier in this story, the Emerald asked SPD's communications team about this email, and specifically asked why Ballingham would be sharing such information with a federal drug policy officer based out of the New York-New Jersey area. SPD said it could not answer the Emerald's question.

The Emerald followed up on May 19 to ask specifically whether officers on the ground or at the Seattle Police Operations Center (SPOC) knew the shooting was not protest-related, before Allen gave ground officers permission to use tear gas. SPD said in an email back on the same day that "these two questions fall into the same category as the first two and would require research that unfortunately we don't have the time to do."

The draft report says Allen claims in his UOF report that "[f]urther deescalation efforts were neither safe nor feasible," but does not say why. He says he directed SWAT Commander Lt. Trent Bergmann to use tear gas on protesters, "with the expectation that it would help quell the violence and further disperse the crowd."

Allen's UOF report later states, "Per the SPOC log, at approximately 0046 hours there is a notation that if the crowd stays static then there would be no more CS and that the only munition to be deployed if necessary, is OC spray."

An OIG-led accountability panel repeatedly noted that SPD officers' actions appeared to be unhelpful to 2020's large-scale protest scenarios, such as when officers hemmed in and pushed protesters back onto themselves, creating a crush of people in high-tension situations. Videos and livestreams of the police response to protesters did not give the protesters any option to "stay static." He also does not appear to state in his UOF who gave the "notation" regarding the cessation of tear gas, if protesters stopped moving.

Seabold's draft report states that Allen transferred command to SPD Capt. Keith Swank, and then moves on to summarize Allen's investigative interview with the OPA, which the OPA conducted on Nov. 5, 2020, treating Allen as a witness officer.

The draft report notes that Allen's interview is consistent with his UOF report. However, the report also states that in his interview, "Capt. Allen further reported that as the evening progressed into the early morning, his officers and members of the National Guard were taking on more projectiles. One such incident that occurred around midnight triggered the deployment of OC spray by one of his officers, which appears to have escalated the situation." (Emphasis the Emerald's.)

The object in question was a water bottle, according to the draft report.

Seabold's footnote here reads, "Whether that officer's deployment was justified under the circumstances is not within the scope of this investigation."

It was at this time that Allen gave the order to use tear gas. Following that order, the draft report states, "individual SWAT members used their discretion whether to continue deploying CS gas based on their assessments of the then-existing threat. None of the SWAT officers who deployed CS gas during this event were named employees, and whether they properly exercised their discretion is not within the scope of this investigation."

The draft report states that when OPA investigators asked Allen whether using tear gas was a proportionate response to a protester throwing a water bottle, he told the investigators the decision "was not based on that one incident. He said it was based on the 'totality of circumstances' he previously described, including radio communications that a man with a gun had been observed in the crowd, the fact that there had already been one shooting that day, and that the crowd was becoming increasingly violent toward his officers."

The draft report specifically notes that OPA investigators did not ask Allen whether he spoke with Best prior to the event, and that he did not mention it in his UOF report. The draft report states that OPA investigators asked Allen whether he spoke with Best after the event, to which he replied that he did not remember doing so, but that Mahaffey may have.

Lt. John Brooks

The draft report then moves on to Lt. John Brooks' investigative interview, which the OPA conducted on Nov. 12, 2020. The report states that while Brooks was deputy operations chief during the June 7—8 protest event, the OPA only interviewed him as a witness officer. It does not appear the Seabold investigator reached out to Brooks for an interview, since the amended draft report was submitted to the OPA in January 2023, and Seabold's contract ended in December 2022, without renewal, according to what the OPA told the Emerald for the prior-linked story. Additionally, as indicated earlier in this story, the Seabold investigator notes where interview attempts failed. Neither the OPA nor Seabold answered the Emerald's questions about this.

In his interview, Brooks cites Best's June 5 directive not to use tear gas, but that he understood Best could designate her authority to another officer. He claims in his interview that tear gas is "probably the least dangerous" of available crowd control munitions, and that it's used to disperse people. However, he does not acknowledge the June 5 joint recommendation that the City's accountability agencies — the OPA, the Office of the Inspector General (OIG), and the Community Police Commission (CPC) — issued regarding the use of tear gas during an airborne pandemic, which came the morning of the press conference during which Best announced her decision to limit its use.

Brooks says he "was advising Captain Allen. And he made [the] decision to authorize the deployment of CS [gas]."

Brooks then goes on to state that "if I would have been in [Capt. Allen's] shoes … I would authorize CS. I believe that the decision was made on — it was predicated on extreme emergency and exigency. … [W]e only had two choices. Either we charged moving forward or we had to do something to disrupt the crowd, or people were going to get hurt — seriously hurt.'"

Assistant Chief Thomas Mahaffey

The Seabold investigator writes that she interviewed Mahaffey on June 17, 2022, as a witness. As the Emerald mentioned earlier in this story, the OPA had designated him only as a witness officer when it opened the investigation in 2020. The transcript of his interview is noted as an attachment to the draft report, which, like all other attachments, SPD did not provide to the Emerald.

In this interview, Mahaffey tells the investigator that "'overall command of the event, sets the — what the intent is for the operation, what the goals are, and then it's up to the operation section chief to put the plan together' to achieve those goals. '[T]he actual deployment in the field will fall under the operations section chief.'"

The Seabold investigator writes that when questioned about the June 5, 2020, directive from Best limiting the use of tear gas, Mahaffey said he was "familiar" with the order, but could not recall why she issued it.

He also stated that "he did not recall that Chief Best formally named him a "designee" for purposes of the directive" — the limitation on and conditional authorization to use tear gas — "but he said that he was the 'on-duty incident commander for all of these protests,' starting on or near June 2 or 3 of 2020.

"As such, AC Mahaffey said, 'it would be logical sense for the assistant chief that was overseeing the operation to be the Chief's designee. The chief … can't be available at all hours, so there's delegation of authority to the commanders.'"

In other words, Mahaffey did not have explicit instruction that he had authorization to override Best's limitation on the use of tear gas.

However, he tells the investigator he did not see it that way then, and still does not see it that way now.

"AC Mahaffey stated that as the incident commander, he also had the discretion to delegate his authority to order the deployment of CS gas to Capt. Allen without requiring Capt. Allen to first obtain AC Mahaffey's approval. He said that he told Capt. Allen he would have this authority in the following circumstances: '[I]f it's so severe that it's a life-safety emergency that you feel it's necessary to deploy gas immediately, i.e., you're in the field, you're viewing what's happening in front of you, you're getting the information in real time.'"

Mahaffey says he felt it was "too cumbersome" to have Allen get a hold of him over the phone, if there was a perceived life-safety emergency.

Mahaffey also states he did not believe he had to talk with Best before handing over his perceived authority as her designee in the use of tear gas to Allen.

Mahaffey tells the Seabold investigator that he tried to get into the East Precinct on the evening of June 7, 2020, but turned back when he saw it had been barricaded. He says he believed there to be a "potential for confrontation if I needed an escort to try and get in, so I didn't try to get in through the perimeter; I went back [to] the operations center."

From the operations center, Mahaffey says he believes he spoke with Allen, but does not recall the specifics of any conversation. He says he does not believe he spoke with Allen before Allen gave the order for police to use tear gas on protesters. Instead, he says, the order was "very immediate," and allegedly came after "several reports" of someone with a "firearm" in the crowd.

Mahaffey says he spoke with Best following Allen's order allowing police to use tear gas on protesters. He says he does not recall speaking with Allen before calling Best, but that it was "possible."

Mahaffey tells the investigator he does not recall the specifics of his telephone conversation with Best. However, he says he believes "he reviewed the incident and the reasons for deploying CS gas based on live-stream video that was available to him and on radio communication."

A footnote here states that Mahaffey tells the investigator that the department "was continually monitoring open-source video" — in other words, streamers and news media — "during this period. He said '[t]here was [sic] a lot of people live streaming through this area, various social media-type accounts that was [sic] open to anyone … to see. So I think that's where we got the majority of our video from.'"

Mahffey says Best was not in SPOC that evening, and that he does not know whether she was monitoring communications or events as they unfolded. By the time he spoke with her, Mahaffey says the order to use tear gas "had been withdrawn because the 'emergency had passed.'"

This means there was at least a 32-minute delay between Allen issuing permission for officers to use tear gas and Mahaffey getting in touch with Best. The report does not state when Mahaffey reached Best.

The report continues: "[Mahaffey] stated, 'We had a matter-of-fact conversation about what occurred and what the reasoning was for the gas being used.' AC Mahaffey said that Chief Best never suggested to him that he or Capt. Allen had exceeded their authority or abused their discretion in connection with the use of tear gas that morning.

Mahaffey tells the investigator that he knew the decision to allow Allen to give the order permitting police to use tear gas on protesters would be "problematic," stating, "[W]e had reason to believe, based on statements that we had seen online and what people were chanting in the crowd, that there was potential for significant violence against police officers and the building itself."

When asked whether he thought Allen had spoken with Best before using the tear gas, Mahaffey said, "He knew that I was in his direct chain of command. We had the conversation about expectations for that evening, how things would go, so I have no reason to [believe] that."

When asked about the June 11, 2020, press conference Best gave — in which she mainly focused on the abandonment of the East Precinct, but in which she also addressed the use of tear gas and said it was her decision to use tear gas — Mahaffey "said he didn't recall hearing that statement at the time and that Chief Best 'might have just been taking ownership as being the leader of the organization, but I don't remember her specifically saying that.'"

The draft report also includes quotes from Mahaffey's original sworn declaration, filed on June 9, 2020.

In this declaration, Mahaffey states that "SPD received a report of a white male individual in possible possession of a gun in his front pocket," and says this caused concern, because of a shooting earlier that evening. However, he does not time-stamp this observation. Given that he recalls both movement and confrontation between that statement and use of tear gas — time-stamping its use as "shortly before midnight" — it appears some length of time passed between that observation and the order.

Notably, Mahaffey does not cite another report of this or a different gun sighting, despite telling the Seabold investigator two years later that there were "several" reports.

The investigator notes that "AC Mahaffey's declaration … was the most contemporaneous statement he has provided regarding this event." A footnote states it is attached to the draft report. The Emerald is not in receipt of this attachment.

Former SPD Chief Carmen Best

The investigator writes that because Best declined to participate in the investigation, the investigator relied on available public documentation and witness statements. The Seabold investigator does not mention any OPA interviews of Best. It does not appear the OPA investigators interviewed Best about this case, despite opening said case in June 2020 — months before she resigned — and naming her as the sole involved officer. It is also unclear whether the investigator attempted to find other sources of information, such as text messages or emails that were not provided in the OPA's original casefile. Neither the OPA nor Seabold responded to the Emerald's questions about whether the OPA interviewed Best and whether the Seabold investigator attempted to find other sources of internal documentation beyond what the OPA or SPD had provided.

Last year, the Emerald published two stories regarding the abandonment of the East Precinct, which focused on then-newly unearthed text messages among SPD command staff and an email from the Office of Emergency Management (OEM) that appeared to tell a different story than what officers had told OPA investigators. Therefore, there may be more records yet to be uncovered that could shine more light on the events surrounding the June 7—8 protest.

The report cites the OPA's, the OIG's, and the CPC's June 5 memo to Durkan and SPD — linked above in the section about Lt. John Brooks' interview — and briefly discusses the afternoon press conference Durkan and Best gave that day.

While Durkan incorrectly referred to the directive limiting police's ability to use tear gas on protesters as a "ban," Best subsequently clarified that "'only specialized trained SWAT personnel' were authorized to use tear gas, and 'only in situations where [there are] life safety issues,' and 'only if I approve it.'"

It's unclear whether Durkan's apparently incorrect messaging regarding the use of tear gas was at play in the misunderstandings that ensued.

The report states that confusion surrounding messaging regarding the use of tear gas ensued, in both the general public and in media outlets. It cites a June 10, 2020, Seattle Times article, titled, "How ambiguity and a loophole undermined Seattle's ban on tear gas during George Floyd demonstrations."

"[T]he Times reported that during the June 5 press conference, Mayor Durkan and Chief Best failed to clearly articulate that the 'SWAT exception would apply during the ongoing demonstrations,' while also noting in that same article that 'at 9:44 p.m. Friday, several hours after the news conference, a post to SPD's website for the first time explicitly stated that SWAT officers could still deploy tear gas 'for purposes of crowd control.'" the report reads.

In the June 11, 2020, press conference — which primarily focused on the abandonment of the East Precinct — the report notes that Best differentiates between the decisions to use tear gas and for officers to leave the East Precinct:

For the tear gas, it was my decision. I think I prefaced that and made it very clear that we did not want to use any of the pepper spray, flash bang, blast balls or tear gas, and we suspended the use for 30 days unless there was a life-safety situation. And that was the exemption. I was keeping abreast of what was happening in the precinct. They had a shooting earlier in day [sic], [and] at some point it got unruly. There was a man with a gun in the crowd. The officers felt like it was a life-safety situation based on what was occurring and I concurred. And I own that decision. I made that decision and I will own any decision when I think it is in the best interest of everyone's public safety … I totally own that decision. (emphasis added [by Seabold investigator])

The report then briefly cites the ongoing federal litigation (linked above in Post-June 7—8 Protest: Events Summary and Summary of Factual Findings section), and a June 12, 2020, OIG report, entitled, "Less Lethal Weapons Usage in Protests."

In the portion regarding the use of tear gas, the OIG quotes from the International Association of Chiefs of Police (IACP). The OIG writes, "CS should be used with caution in crowd control situations, as [quoting from the IACP,] 'uncontrolled use can have negative consequences with respect to efforts to control, management [sic] or disperse crowds. … [U]se of CS may escalate violence and 'the crowd should be warned prior to CS deployment and provided with avenues of egress.'"

After briefly discussing the OIG's Sentinel Event Review (SER), specifically the SER's Wave 2, which covers several events, including those of June 7, 2020, through June 8, 2020, the draft report appears to abruptly end. It is unclear whether more will be added, but the draft report does not appear to contain any final conclusions. The ending is identical in both the October 2022 version and the January 2023 version.

The Draft Report's Attachments

As indicated above, SPD's public disclosure team did not provide any of the draft report's attachments, despite the fact that the Public Records Act (PRA) does not appear to provide an exemption in this case, particularly since none of Seabold's draft report was redacted, including names of officers and full case document numbers. SPD also did not provide an exemption log for any records.

Beginning on May 12, the Emerald has also asked SPD's Public Disclosure Request (PDR) team several times for these attachments. It asked again for all cited attachments on May 15, and SPD responded that the Emerald would have to file another records request for those documents.

However, the Emerald's original public disclosure request to SPD from Jan. 31, 2023, asked for "Any and all records regarding the outside agency hired to investigate allegations against and/or the actions of former Seattle Police Department (SPD) Chief Carmen Best during the 2020 protests. … These records include, **but are not limited to**: Emails, memos, investigatory documents, receipts, meeting notes, and reports. I prefer to receive these records in their original electronic format."

According to the Cambridge Dictionary, "regarding" encompasses "about," "concerning," and "in relation to."

The original, Seabold Group-created documents cite those records as part of its investigation, which means it does, in fact, regard Seabold, as they are specific investigatory documents that relate to the agency in its capacity as a contractor for this specific investigation.

But regardless of how the word "regarding" is parsed, it does not appear to matter: As stated earlier in this story, Seabold states in no uncertain terms in footnotes throughout its draft reports that the attachments accompany said draft reports and it does not take extra searching to find them — or a new records request — because they all exist together as a complete package. It appears SPD separated this package and thus deliberately handed over only partial documentation to the Emerald.

Specifically, one of the documents noted as attached to the draft report that SPD's PDR team will not release to the Emerald is the Seabold Group's interview of Mahaffey. This interview would seem to be covered under the Emerald's specific public disclosure request outlined above, since it — like the Seabold-generated invoices provided to the Emerald under this public disclosure request — was generated by the Seabold Group.

Additionally, as recently as late April, SPD had tried to "group" the Emerald's outstanding requests, pushing out any projected dates of records turnover to Dec. 29, 2023. If an agency groups a requestor, it means it can claim the number of a single requestor's outstanding requests impede public disclosure officers' ability to treat fairly all other outstanding requests. Specific City public disclosure request policy language can be found here, in section 5.2.3.

It is unclear whether SPD has violated the PRA by withholding these documents from the Emerald, but violating the PRA is an ongoing issue for the City of Seattle. The City recently made national news for having to pay out just north of $2 million in an ongoing suit regarding Durkan's deleted text messages.

The Emerald will continue to try to obtain these documents.
The Emerald also asked the OIG on May 18 for status updates regarding the Seabold investigations into Best, but the OIG did not respond.

Featured Image: Seattle police disperse demonstrators with flash bangs and pepper spray near an SPD precinct. June 6, 2020. Photo via Mauro Pedro da Silva/Shutterstock.com