OPA, OIG Heads Seem to Acknowledge SPD, City Out of Compliance With Consent Decree in Letter to Fed Oversight Officials

by Carolyn Bick

Though they do not say it outright, both Inspector General Lisa Judge and Office of Police Accountability Director Andrew Myerberg have written a letter to federal oversight officials and Seattle's Chief of Police that appears to acknowledge that the police department and the City may be out of compliance with the Consent Decree.

The Oct. 15 letter to United States Department of Justice (DOJ) officials, Federal Monitor Anthony Oftelie, and Seattle Police Department (SPD) Chief Adrian Diaz contains two recommendations for policy revision and follows about a month after the Emerald published a story in mid-September that outlined how the Seattle Police Department (SPD) and the City might currently be out of compliance with the Consent Decree.

In that story, the Emerald found evidence that SPD's current use-of-force reporting policy combined with certain practices within the complaint investigation system of the Office of Police Accountability (OPA) allows some use-of-force incidents to slip through the cracks, in direct opposition to what the Consent Decree mandates.

SPD officers are required to report all uses of force — with said uses of force ranging from de minimis (low) to deadly — to their superiors. The Consent Decree stipulates without exception that all Type III uses of force — which are a step below deadly and include those resulting in permanent damage to a person's organs — are required to go before the Force Review Board (FRB).

However, in the case the Emerald examined — a case in which Seattle Gay News journalist and OPA complainant Renee Raketty alleged that an officer threw a blast ball beneath where she was sitting and that, when the blast ball went off, she permanently lost hearing in her right ear — it became apparent that this Type III use of force would never appear before the FRB. This is due to the fact that the officer who apparently threw the blast ball never followed up with Raketty to ask if she needed medical attention — despite SPD's own manual requiring such action — and the fact that the OPA does not send cases it is investigating to the FRB for their review.

The first of the two recommendations made in the Oct. 15 letter is that oversight officials re-evaluate the police department's use-of-force reporting policy to determine whether the policy should "require mandatory referrals to [the Force Investigation Team] FIT and/or FRB for Type III uses of force that were underreported or not reported at all."

Lawyer Sarah Lippek, of Cedar Law, who is representing Raketty, told the Emerald in an interview that she thinks the OPA and OIG should be doing more than recommending a re-examination of policy. Though the letter calls Raketty's situation "a rare circumstance," Lippek said it's not rare at all.

"They downplayed how common the situation is. … I am personally aware of dozens of people to whom this situation applies that I have either interviewed or that I am representing as clients," Lippek said. "I don't think it's that uncommon, given that there are 19,000 OPA complaints outstanding. Some percentage of those are going to be about force and some percentage of those are going to fall into this category."

In the summary leading up to this recommendation, the letter states that Raketty and Lippek asked for the OPA to make a recommendation back to SPD in order for the Force Review Board to review Raketty's case, as it involved a clear Type III use of force based on Raketty's permanent hearing loss. However, the letter says, the "OPA informed the complainant that, while policy provides for FIT and FRB to make referrals to OPA where potential misconduct was discovered, it does not contemplate referrals being made to those entities by OPA."

"OPA raised this concern and the lack of guidance in the policy with both SPD and DOJ," the letter says but does not describe the nature of the communications between the OPA and SPD or between the OPA and DOJ. In a later email to the Emerald, Inspector General Judge explained that "any solution would necessarily involve action by SPD, the monitor, and DOJ, as these current processes are the creation of court mandated and approved oversight of serious force."

Lippek said she was concerned that the letter only focuses on the gap in policy insofar as it concerns Raketty's hearing loss. But there is another, overlapping policy issue that appears to allow other, sometimes related, Type III use-of-force cases to go unreviewed by the FRB, despite the SPD Manual mandating otherwise. These cases are those in which officers commit a "serious policy violation," according to the 8.500 POL-2 Section 11 of the SPD Manual. However, as the Emerald previously reported, the OPA is the only body that can make the determination that a use of force falls outside policy — and because there is no current mechanism by which the OPA can refer a case for review by the FRB, it would appear that these cases are going unreviewed.

Lippek said that, by all rights, Raketty's case also demonstrates a use of force that should be considered assault, given the circumstances surrounding the use of force, and would therefore be considered a use of force that fell outside policy. However, the OPA has decided not to refer the case for criminal investigation, Lippek said.

"[That] is something that is troubling to me, because … that does seem a pretty clear potential law violation. It's an assault. It wasn't in the course of an arrest, it wasn't in the course of giving orders, or anything like that," Lippek said.

Lippek provided the Emerald a letter she sent to Mayor Jenny Durkan, the Seattle City Council, the Department of Justice, and Federal Monitor Anthony Oftelie — as well as the OPA, OIG, and Community Police Commission — on Nov. 16.

In the letter, Lippek shares her concern that the apparent gap in policy "constitutes serious and systemic lack of compliance with the Consent Decree," and specifically raises concern that the OPA and OIG letter does not address the fact that other Type III uses of force are going unreviewed by the FRB, as described above.

"[A]ny use of force that constitutes a major policy violation — and that means any and all "excessive" or "unreasonable" force — is also a Type 3. However, the OPA is the only agency that can opine on whether a use of force is out of policy. If only OPA can make that finding, and OPA isn't referring cases to FRB, then FRB is not reviewing any uses of force that rise to the level of Type 3 because of being out-of-policy," Lippek's letter reads.

Lippek further emphasizes this point in the letter, stating that "[a]ll up the command chain, supervisors are instructed by policy to refer to the OPA if they believe a policy violation has occurred — the OPA should not then be a dead end, where uses of force are determined to be out of policy but then never brought up for force review."

"The chance to examine these cases individually, with information not available from officers' own accounts of the incidents, is invaluable to the mission of true and lasting reform. My concern is that these Type 3 cases are not being reviewed by FRB, and therefore not affecting SPD policy and practice. Lessons are not being learned, because one arm of the police department (OPA) is not sharing information with another (the Force Review Board)," Lippek's letter reads, before concluding.

Lippek also noted in her interview with the Emerald that it appears the FRB must conduct a review on a case-by-case basis whenever, according to 8.500 POL-2 Section 11 of the SPD Manual, "less-lethal tools" — which are less-lethal weapons, such as flash bangs, tasers, and pepper spray — "were used on the subject." This would seem to indicate that the FRB must conduct reviews of each individual case in which officers used less-lethal weapons, including in mass protest scenarios.

The second recommendation in the letter the Inspector General and OPA director sent to federal oversight officials involves current policy that allows officers who the OPA determines may have committed crimes to decline to participate in investigative interviews before the investigation has been concluded. Section 8 in SPD's 8.400 — Use of Force Reporting and Investigation — section states that all officers involved in a Type III use of force will give a recorded statement at the direction of the FIT captain. However, the manual contains an exception: "If information suggests possible criminal conduct by an officer, that officer will not be compelled to provide any statement or interview prior to the conclusion of any criminal investigation."

This means that no oversight or investigative authority — including the OPA — can compel an officer to speak about their actions in a formal interview or written statement. However, the letter notes, this exception appears to be unnecessary for two reasons. For one, it states, police officers are covered under Garrity protections, which means that a police officer may not be threatened with discipline to make a statement that could be used in criminal proceedings and that a police officer can't be fired for refusing to waive the right to remain silent, a right protected by the Fifth Amendment.

"Moreover, SPD has the ability to wall off the administrative and criminal investigations and has ably done so on numerous prior occasions," the co-written OPA and OIG letter continues. It does not detail what exactly this means with regards to transparency and discipline within SPD and does not note how many times SPD has done this or for what kinds of cases it chose to do so.

In an email to the Emerald, OPA Director Myerberg said that whenever there is an allegation of possible criminal conduct in the course of a force investigation, both the FIT and the OPA are in charge of conducting administrative investigations, while SPD or another law enforcement agency conducts a criminal investigation.

"A case master — who is usually an SPD Captain — is put in place to provide information from the criminal investigation to the administrative investigations but [also] (sic) to make sure that information from the administrative investigations does not taint the criminal investigations," Myerberg said. "This person forms the 'wall' that we referenced. This has happened at least ten times and probably more since I've been at OPA and many times before that. I can't give you an exact number at this time."

The co-written OPA and OIG letter goes on to state that "OPA and OIG believe that not conducting the contemporaneous interview is a mistake as it could result in the loss of relevant information and could negatively impact both the force investigation and administrative disciplinary proceedings."

The co-written OPA and OIG letter thus asks that the SPD modify its manual so that the OPA and other oversight authorities may conduct "contemporaneous administrative interviews of officers believed to have engaged in criminal behavior."

In a brief email to Lippek on Nov. 18, Assistant United States Attorney Christina Fogg said that she would bring up Lippek's concerns to the federal Monitoring Team, the team that Oftelie — who also acknowledged receipt of Lippek's letter — manages, and that oversees the Consent Decree's application in the City of Seattle.

Kelsey Nyland, a communications officer at the Mayor's Office, said that the office is still reviewing Lippek's letter, which it had just received on Nov. 16.

"The issues outlined in the OPA and OIG's October 15 letter are deeply complex. The Mayor recently began biweekly meetings with the accountability agencies as their insight and analysis are critical to the continued operation and improvement of the Seattle Police Department," Nyland said. "We're also meeting with the new Monitor to address issues that have arisen from protests and changes the City is making to policing."

The Emerald reached out to Interim Police Chief Adrian Diaz and SPD's public information officer Sgt. Randall Huserik to ask for comment on the Oct. 15 letter from Myerberg and Judge. At the Emerald's request, Huserik acknowledged receipt of the Emerald's emails, but did not reply with comment.

The Emerald has also reached out for comment from the Seattle City Council about Lippek's Nov. 16 letter, and will update this story, if more information becomes available.

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

Featured image by Alex Garland.