If the Officer Had Punched Twice, He Would Likely Have Been Within Policy: OPA Releases New Complaint Findings

by Carolyn Bick

Had the Seattle Police Department officer only punched the demonstrator twice, and for a slightly shorter period of time, the Office of Police Accountability said it may not have found that the officer violated policy when he and another officer — both of whom appear to have been wearing helmets — punched a demonstrator in the course of arresting him on the night of May 29.

This finding was included in one of the case closed summaries into five demonstration-related complaints against Seattle officers released on Oct. 23. In these findings, the Office of Police Accountability (OPA) did not sustain allegations in three complaints and only partially sustained allegations in two complaints against Seattle Police Department (SPD) officers.

One of the complaints alleges that two SPD officers — called Named Employee #1 (NE #1) and Named Employee (NE #2) in the report — used excessive force when they punched him. However, the OPA sustained just one of four total allegations, and only against NE #2. According to the case closed summary of this complaint filed about the May 29 incident, the OPA found that though NE #1 also punched the demonstrator, NE #1 was within policy, using an appropriate amount of force and using an appropriate de-escalation tactic.

According to the summary, the two officers started punching the demonstrator in the course of trying to arrest him, after the demonstrator allegedly moved NE #1's baton, which the summary says NE #1 dropped, while following the demonstrator. The summary says the demonstrator then "appeared to go down to the ground on his own power," after which "NE#1 got on top of him."

The summary says that the demonstrator was holding a water bottle in his right hand. After NE #2 "pushed down on the [demonstrator's] head," the demonstrator "moved his right hand, which was still holding the water bottle, up quickly towards NE#1's face."

"The water bottle appeared to strike NE#1. NE#1 responded virtually instantaneously, striking the [demonstrator] twice with a closed fist," the summary reads. "Shortly thereafter, NE#2 punched the [demonstrator] between six and eight times in the torso area."

Though it sustained allegations against NE #2 for excessive use of force, the office only had concerns about the timing and proportionality of the force NE #2 used against the demonstrator.

"With regard to the timing, NE#1's force application lasted approximately two seconds and began only 0.5 seconds after the [demonstrator] swung the water bottle up towards him. In comparison, NE#2 began striking the [demonstrator] 2.5 seconds after the water bottle was swung and continued to punch the [demonstrator] for six seconds after that," the case closed summary of the investigation reads. "From OPA's perspective, while the [demonstrator] remained resistive, the immediacy of the ongoing physical assault ceased within the first two seconds of the incident; however, NE#2 continued to punch the [demonstrator] afterwards."

In other words, the OPA was only concerned that NE #2 punched the demonstrator as many times as he did, and for several seconds longer than the office believed he needed to.

"Had NE#2 used two strikes instead of six to eight, the force likely would have been consistent with policy given the totality of the circumstances," the summary reads.

The summary also notes that "this was not a situation where the [demonstrator] was simply engaging in passive resistance, he had displayed an ongoing disinclination to comply with lawful orders and had expressed the intent to harm them."

"OPA recognizes that the [demonstrator] did present a threat of harm to the officers and consistently failed to comply with any of their orders, as well as that the situation that evening was chaotic with the officers being outnumbered by demonstrators," the summary reads, apparently concluding that the alleged "intent to harm" could be determined by the demonstrator "[moving] his right hand, which was still holding the water bottle, up quickly towards NE#1's face," his failure to comply with orders, and the overall chaos of the night.

The summary does not mention that both officers appear to have been wearing helmets.

The summary says the OPA made its determination after interviewing the two officers, and reviewing viral videos like the one by Dae Shik Kim Hawkins, Jr., linked at the beginning of this article and body worn video. The OPA said it reached out to the demonstrator, but that he declined to be interviewed.

The summary says that disciplinary action is pending with SPD Interim Chief Adrian Diaz.

In a complaint in which a demonstrator said an SPD officer used excessive force against her in the course of her arrest, the OPA sustained the allegation of excessive force, but did not sustain the allegation that the officer's de-escalation tactics were out-of-policy. It also removed the allegations against a second officer originally named in the complaint, as it found that the allegations only applied to one officer, after reviewing video evidence.

The demonstrator said that when SPD officers arrested her on June 7, one officer — Named Employee #1 (NE #1) — "slammed" her head into the ground.

"At the time, the [demonstrator's] eyeglasses were crooked, and swelling was visible on [her] left cheek. Photographs later taken of the [demonstrator] showed bruising to the left temple and cheek, and a bleeding abrasion on the [demonstrator's] chin," the summary reads.

In the aftermath of her arrest, the demonstrator also "complained of pain to their hand/arm, pain to their head/face, and the feeling that they were going to pass out."

Both NE #1 and Witness Officer #1 (WO #1), who helped NE #1 arrest the demonstrator, filed use-of-force reports. In NE #1's report, the summary says, the officer said that he recalled holding the demonstrator's head to the ground, in order to stop her from getting up. He said he held her down with his hand on her back. While he considered putting his knee on her upper back, the report says, NE #1 "decided not to do so given the context of the protests."

"He wrote that the [demonstrator's] head was only as far off the ground as the [demonstrator] could pull it back," the summary reads. "NE#1 did not specifically address whether he slammed the [demonstrator's] head to the ground in his use of force report."

WO #1 claimed that she did not see NE #1 "make any contact with the [demonstrator's] head, face, or upper torso," but did not mention whether she saw NE #1 hold the demonstrator down by putting his hand on her back. The word "torso" appears to mean the front of the body in the SPD Manual, based on where it says body cameras are supposed to be worn.

NE #1 said that the demonstrator was not actively resisting, but instead using her body as "dead weight," so he rolled her over. He said he did not recall whether her head was elevated. He also said he didn't know how the facial wounds could have been made, though he said he did remember the demonstrator saying she was dizzy and that her head hurt.

However, it does not appear to have been this rolling that caused the wounds on the demonstrator's face: according to the summary, a video from a community member shows "that NE#1 forcibly pushed the top half of the [demonstrator's] body down twice. This caused her head and face to strike the ground."

In order to make its determinations, the OPA said it interviewed a witness to the incident, NE #1, and WO #1, but could not get in touch with the demonstrator to interview her. The OPA also said it reviewed the video cited above and body worn video, which it said "did not shed light on the nature of the force used on the [demonstrator] due to the proximity of the officers to the [demonstrator] at the time."

The summary says that the OPA recommends NE #1 be disciplined with a written reprimand.

In a case closed summary regarding a June 6 incident, the OPA did not sustain either of two allegations against officers. In the complaint, demonstrators said that an officer "abused his discretion by directing a Department vehicle to drive behind protesters, including one who was kneeling. [Demonstrator] #2 further alleged that Named Employee #2 used excessive force when Named Employee #2 pushed [Demonstrator] #2 to the ground."

Demonstrator #2 said specifically that an officer pushed her from behind, but the OPA instead found that Demonstrator #2 accidentally tripped over the shoe of someone kneeling behind her.

However, while in-car video appears to show that Demonstrator #2 tripped over the shoe of a person kneeling directly behind her, it only appears she fell after an officer pulled her from behind. The video shows Demonstrator #2 was not aggressing police, but the summary says the Demonstrator said "that the officers got out of their vehicle and were yelling. She said that they started yelling at the demonstrators to get out of the way and then immediately physically moved them."

Demonstrator #2 also said that officers "were laughing and joking and provided their badge numbers in a sarcastic fashion."

While the OPA did find that an officer — Named Employee #1 (NE #1), whom it also found did not drive a patrol car into protestors, as claimed — "did engage in a prolonged back and forth with some of the demonstrators" that "included sarcastic comments and other statements that did not seem to serve any law enforcement purpose," it didn't find any problem with this, as the officer didn't use what the OPA considered derogatory language. The office referred "the potential issues concerning his professionalism to his supervisor to be addressed through counseling and retraining."

The OPA also did not sustain allegations against an officer who allegedly pointed a rifle at a demonstrator at a June 2 protest. Rather, it found that a Washington State Patrol (WSP) officer had been the one to do so, instead, and there was a lack of video evidence to show the named SPD officer had, too. The rifle, the OPA summary says, was one used to shoot rubber bullets, and the WSP officer had pointed it in the demonstrator's "general direction."

Finally, the OPA did not sustain allegations against three officers in a June 5 incident in which a demonstrator claimed officers had targeted her for her Chinook heritage, after she asked officers why Native rights were being abused. However, the report says the demonstrator identified as white, and that when she asked officers why she had been arrested, they said it was because she had crossed a police barricade, after expressly being told not to do so.

The OPA summary says that it appears the demonstrator was suffering a mental health crisis. According to the OPA's report "BWV of her time in custody indicated that the [demonstrator] repeatedly discussed how officers were harvesting the organs of arrestees and her belief that the police would do so to her. She was extremely emotional at times. She further was captured on BWV lying on the floor and refusing to move when asked."

The summary says that officers called AMR to take her to King County Jail, and that while in the AMR transport, the demonstrator said she felt pain "'everywhere, in my arms, in my back, in my legs — I was forced down, I was pushed down on my head, on my neck, on my spine,' and "further talked about being cut, her organs being harvested, hearing bombs when she woke up, having to urinate in her pants, and a missing spiritual onyx stone."

The OPA summary does not note whether the demonstrator received medical care at the jail.

Carolyn Bick is a journalist and photographer based in South Seattle. You can reach them here and here.

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