OIG Memo Reveals Serious 'Deficiencies' in OPA Protest Investigation That 'Cannot Be Remedied'

by Carolyn Bick

Author's Note: For the purposes of clarity, the Emerald will use "(sic)" in parentheses in quoted sections of the OIG memo discussed in this article to indicate that it has been reprinted here exactly as it appears in the source material (the OIG memo). Where readers see "[sic]" styled as shown here, with square brackets, this text was used by the OIG in their memo to indicate that the text quoted in their memo appears exactly as it appears in the source material (the OPA Report of Investigation/ROI).

On the evening of Monday, Sept. 7, 2020, hundreds of protesters marched to the Seattle Police Officers' Guild headquarters in SoDo. The march fell just after the 100th day of protests against police brutality held in the city since late May 2020, following the murder of George Floyd.

Once the protesters arrived at the Seattle Police Officers' Guild (SPOG) headquarters, it didn't take long for police on bicycles to confront the crowd. It's unclear exactly what prompted the police to come outside, but the situation soon erupted, with officers deploying blast balls and pepper spray and arresting several protesters. Videos about the event online, including those in this Twitter thread from Seattle Times reporter Heidi Groover and this Twitter thread by Stranger Associate Editor Rich Smith, show what appears to be a peaceful scene, before Seattle Police Department (SPD) officers on bicycles come around the corner to confront protesters. Based on these videos, it does not appear that any of the protesters instigated the confrontation, though a heavily edited official SPOG video, complete with background music, claims otherwise and says that police sprang into action after allegedly seeing a protestor carrying Molotov cocktails.

Multiple complaints were filed with the Office of Police Accountability (OPA) about the night's events. The OPA Case Closed Summary (CCS) for at least one of the complaints filed about the night's events has not yet been released, but the Emerald has obtained an Office of Inspector General (OIG) partial certification memo for the complaint.

As part of Seattle's police accountability system, one of the OIG's roles is to oversee the OPA and certify its investigations. A full certification occurs when an OPA investigation has met OIG criteria in three areas: timeliness, objectivity, and thoroughness. However, in cases in which the OPA has met some but not all of the criteria, the OIG will issue partial certifications in memos outlining the OIG's objections.

The partial certification memo the Emerald obtained about a complaint that stemmed from this incident — OPA case number 2020OPA-0583, which concerns SPD's overall decision that night to forcefully confront the protesters — raises several red flags about the way the OPA conducted that investigation. It appears to show that the OPA's investigation may not only have been biased but also that OPA investigators failed to address conflicting testimony, may have led interviewees, and may have failed to follow the OPA manual.

(For readers' reference, OPA and OIG documents often label officers as "Named Employee #X," where "X" is a number.)

The OIG memo states outright that even though the OPA provided clarifying information the OIG had asked for in its first review of the OPA's investigation, "OIG cannot certify the investigation as thorough or objective, but OIG does certify the investigation as timely. Per 3.29.260 F, no further investigation is being directed at this time because OIG finds that the deficiencies of the investigation with respect to thoroughness and objectivity cannot be remedied."

The OIG memo first lays out several principles it considers when assessing an OPA investigation's objectivity, saying that "OPA language and analysis exhibit potential bias; conflicting testimony has been addressed; interviews use leading or suggestive questions; and the intake and investigative process complied with the policies set forth in the OPA Manual."

The OIG memo says that the office's concerns about objectivity stem from the language and analysis present in the OPA's Case Summary or Report of Investigation (ROI). In this case, the OIG memo says, several complaints submitted alleged that SPD officers attacked peaceful protesters and used unlawful or excessive force against them. However, "(t)he counterargument prevalent throughout this investigation is, 'officers did not "attack" the crowd, but rather attempted a targeted arrest of a suspect carrying an incendiary device.'" This quote, the OIG memo says in a footnote, came from an OPA investigator on Feb. 9, 2021.

Though several complainants have questioned the legitimacy of this allegation, the OIG memo reads, the OPA's ROI appears to be "crafted to support the legitimacy of the 'targeted arrest of a suspect carrying an incendiary device,' with little opposing evidence being presented."

In other words, the OIG memo is saying that the OPA's investigative report appears to be specifically designed to support the officers' actions and their narrative, rather than approach the situation as a neutral body.

The OIG memo dives into this further. The description of the person who was supposedly carrying this incendiary device "is based on 'credible reports from an undercover officer in the crowd relaying real-time information captured on radio audio recordings,'" the OIG memo says, again quoting an OPA investigator the OIG corresponded with on Feb. 9, 2021.

"However, the investigator omits evidence showing the suspect may have been holding a trash bag, not an incendiary device, prior to and during the arrest attempt," the memo reads. "In both the referenced CAD (Computer-Aided Dispatch) Report and TAC9 (SPD radio frequency) audio report, it is first mentioned a male is sighted with a Molotov cocktail, but within minutes, as the intel evolves, it is reported this male is carrying a trash bag."

The OIG memo says that in the TAC9 audio, there are three mentions of a person carrying a trash bag. In the CAD call, it's also reported that the person is carrying a trash bag.

"However, in the ROI, all mentions of this trash bag are removed," the OIG memo reads, with a footnote to note that "[t]he only mention of a trash bag anywhere in the ROI is in reference to a Black [sic] trash bag thrown over the SPOG fence." It also shows exactly where, in the TAC9 audio summary and the CAD audio summary, all references to the trash bag are removed.

"There is no explanation given to why reports the suspect is carrying a trash bag are omitted, but the original report that the suspect is carrying an incendiary device is stated numerous times," the OIG memo reads. "This uneven conveyance of the evidence portrays a potential bias."

The officers' attempted arrest of the person in question was also captured on body worn video (BWV) of both the sergeant who initiated the arrest and the directly involved officer, Named Employee #3 (NE #3), the OIG memo says. However, there is a footnote indicating that the OPA investigator themselves denies this, saying, according to the OIG, "The guy who [OMITTED] and his crew attempted to arrest is not captured on video." It is unclear what "[OMITTED]" stands for here.

The OIG memo contains mention of a "friendly," also known, it says, as an undercover officer. This undercover officer starts waving his hat next to the person the police are targeting. As the sergeant who initiated the arrest begins his BWV, he is riding in front of the incoming officers, the OIG memo says. The undercover officer is clearly visible on the BWV holding a hat and pointing towards a person wearing all black and holding a trash bag and umbrella. This person has linked arms with his fellow protesters.

The undercover officer moves closer to this person, puts a hand near his shoulder, and points to the trash bag this person is holding. The sergeant then grabs the person with the trash bag with one hand and the trash bag with the other. The trash bag rips open in the ensuing struggle, the OIG memo says, "and various trash items are visible and later seen discarded on the ground. There is no incendiary device in view, but the suspect is clearly captured on video. The struggle with the suspect is captured on more than one officer's BWV."

The OIG memo also has a couple footnotes regarding this section, one of which notes that "(d)ue to the Investigators (sic) denial of this evidence, I have tagged several images of this confrontation in Evidence.com (a shared law enforcement resource) under the Sgt's BWV."

But as stated above, the OPA investigator "gives a much different account of this BWV" in the ROI, the OIG memo states, and proceeds to quote directly from the ROI.

"'[OMITTED] rides into the crowd on the north side of the alley and attempts to work his way into the crowd. The crowd appears to lock arms and/or interfere with his attempts to enter. [OMITTED] tells the crowd the suspect is under arrest. The crowd obstructs [OMMITED (sic)]'s attempts and it appears the man escapes.'

"There is no explanation as to why the Investigator omits relevant evidence concerning the Sergeant's encounter with the suspect. Further, there is no explanation given as to why this Sergeant was not interviewed as part of this investigation," the OIG memo reads, also noting in a footnote that the lack of the sergeant's interview also lends itself to a lack of thoroughness. "The inaccuracies of the TAC9 report, the CAD call, and the BWV analysis, combined with the investigators [sic] denial the suspect is ever captured on video, calls into question the overall objectivity and thoroughness of the investigation."

The OIG memo also covers the topic of the many media reports that documented the situation that night. The memo says that the OPA investigator drafted summaries of them in the ROI, but that it's unclear how the news reports and graphics in question were chosen, as "the summation does not provide equal weight to the evidence."

The OIG memo does not go into detail about all of the media reports summarized in the ROI but gives the example of the Seattle Times' story titled, "As Seattle passes 100 days of protest, 22 arrested at anti-police union march." The OIG memo says that the OPA investigator's summary "removes portions of the article less complimentary of SPD and leaves in portions which paint the protestors in a poor light."

For example, the memo reads, the ROI summarizes as follows:

"'Protesters were described as mostly wearing black and 'some carried shields, umbrellas and gas masks.'

The article says officers rode their bicycles into the crowd, grabbed umbrellas, a protester deployed a fire extinguisher, police responded by pushing the crowd, deploying blast balls and pepper spray." (sic) SPD reported the crowd threw rocks, bottles, and explosives at officers.'"

But the actual article states, with the OIG memo bolding and italicizing certain areas for emphasis:

"'Most wore black and some carried shields, umbrellas and gas masks.

When the group arrived, the 2004 Big & Rich song "Save a Horse [Ride a Cowboy]" blared from speakers on the building and dozens of officers rode out from behind the building on bikes and confronted the crowd.

Officers ordered people to back up, rode into the crowd and grabbed umbrellas from protesters. A protester deployed a fire extinguisher; police pushed their bikes into the crowd and used pepper spray and blast balls or flash-bang grenades. After officers began pushing the crowd out of the area, some in the group threw fireworks at police. As officers tried to make arrests, scuffles broke out.

From the front of the crowd of protesters, it was not immediately clear what prompted the police response. The Seattle Police Department later said that as police made arrests, members of the crowd threw rocks, bottles and explosives.'"

The OIG memo specifically states that "(t)he OPA manual outlines that investigators must take extra care to show the public that despite being peers of those against whom complaints are filed, all aspects of OPA's work is conducted fairly and scrupulously. However, these articles and the information included and omitted, portrays a troubling inequality in the weight given to all evidence."

The OIG memo then goes on to talk about the investigation's lack of thoroughness. As it did with the previous section, regarding objectivity, the OIG memo outlines certain things it considers when assessing thoroughness: "Whether interviews were comprehensive; whether investigation steps were clearly documented; whether evidence is accurately reflected in the OPA report; and whether relevant evidence is preserved."

The OIG considers thoroughness in large part, the OIG memo says, by examining interviews, assessing them not only for completeness but also for compliance with OPA policy and avoidance of leading questions.

Several of the OPA interviews with officers passed none of these assessments, according to the OIG memo, but the OIG says that, for brevity's sake, it will only point out two instances in which this occurred.

The first interview the OIG flags is the OPA investigator's interview with Named Employee #8 (NE #8). The OIG memo says that the investigator "failed to address relevant discrepancies and utilized leading/suggestive questions in regard to use of force tactics and assumptions concerning protestors." It also makes a note that this particular officer is referred to as NE #7 and NE #8 in the ROI, but it's unclear whether this was intentional or a mistake on OPA's part, as the memo never addresses this.

The Emerald asked OPA Dir. Andrew Myerberg in a June 28 email about the way the OPA refers to this officer, in addition to other questions about this issue. Myerberg said that until the OPA CCS has been released, he would decline to comment on this case.

In this specific case, the memo says, quoting from the ROI, the officer "'punched the suspect with a closed fist to his face as he lie (sic) face down, with officers attempting to arrest him.'"

In this officer's interview with the OPA investigator, the OIG memo states that the officer said that "(h)is (the person this officer was arresting) hands were hidden under them, under him, and it was likely he was armed."

But in the BWV, the OIG memo says, "you can clearly see the suspects [sic] left hand up near his face, and in the ROI the investigator states the suspect was 'lying prone, face down, with one of his hands underneath his body.'

"NE #8 was never questioned about this discrepancy, which is an important factor, as the NE is using the suspects [sic] position as justification for the strike to the face," the OIG memo reads.

"NE #8 was prompted with leading questions to discuss training, which deals with a suspect who is 'lying on their stomach with their hands and arms tucked underneath their torso,'" the OIG memo continues. "The interviewer asks, 'Have you received training from the department in regards to what's commonly referred to as a turtled suspect, somebody laying face down with their hands under their body?' The investigator uploads the training guide and inserts a four-paragraph summary on dealing with turtled suspects. However, this training condones strikes when a suspect 'makes attempts to get to their feet or to face the officer', and there is no mention or depiction of a suspect with only one hand under their body. These discrepancies are not examined in detail in the ROI or interview."

Later on in the interview, the OIG memo states, "the investigator leads NE #8 to reinforce the belief that most protestors are armed" and includes an excerpt of that interview. The Emerald has also included that excerpt below, exactly as written and styled in the OIG memo, including bold text:

"'Interviewer: Did you have any reason to believe the suspect was armed with a weapon?

NE #8: I would say yes, because many of these –the rioters that come to these events are armed, based on my experience.

Interviewer: Okay. And you referenced that you've been working most of these, or if not all of these, since —

NE #8: Right.

Interviewer: — the last several months?

NE #8: May 30th, I believe, was the first one.

Interviewer: And generally when you arrest somebody, you said they're — they're armed with weapons. What kind of weapons have you recovered from people?

NE #8: Guns, knives, batons, Tasers, sticks, hammers, screwdrivers, hatchets.'"

The OIG also flags the OPA investigator's interview with Named Employee #11 (NE #11), who is a SPOG representative. However, this violates the OPA Manual, the OIG's memo says.

"According to the OPA manual, 'The primary role of a union representative during an OPA interview is to protect the contract rights of the employee. Otherwise, the union representative must not be allowed to interrupt or otherwise disrupt an OPA interview,'" the OIG memo says, quoting from the OPA manual. "In this instance the SPOG representative provides testimonial evidence."

The OIG again quotes directly from the interview. As a note, the Emerald received a redacted version of this memo, so the officer's name was replaced by a black censor strip. The Emerald has noted this and other such strips going forward as "(REDACTED)."

"'Interviewer: Yeah, and just for the reviewer, (REDACTED), who is representing SPOG and (REDACTED) is also the Acting Lieutenant of the Community Resource Group—

SPOG Rep: Response.

Interviewer: –Response Group, um, and is a trained bicycle officer. And how long have you been a bicycle officer?

SPOG Rep: Uh, for about four years now.

Interviewer: Okay, and you can shed some light onto this tactic?

SPOG Rep: I can. So—a—the—during this whole conflict, from May 29th 'til basically the present, right now, the— the tactics that we were trained, we have used the same tactics for a long time. The protester's reactions have evolved, and—for us to move them, one of the things that we found was effective that we used on the fly, we tried to stay within the core principles of the use of force. The bicycle is a soft rubber tire that's filled with air. To prompt people to move, the only other option is for officers to use their hands in de minimis. We look at that as a de minimis tactic to use a bicycle tire…'"

The OIG memo states that this information is used in the ROI to make an allegation analysis. However, "(t)his testimony violates OPA policy concerning the role of SPOG representatives in Named Employee interviews. Any information concerning approved bicycle tactics should have been obtained from a Witness Employee or approved materials."

The memo closes by stating that the OIG "considers whether all allegations were identified and whether each allegation was sufficiently addressed.

"In this case, there were numerous allegations SPD forcefully confronted peaceful protestors without warning or proper cause," the memo reads. "This investigation justifies these actions by claiming 'the officers did not "attack" the crowd, but rather attempted a targeted arrest of a suspect carrying an incendiary device, based on credible reports from an undercover officer in the crowd relaying real-time information captured on radio audio recordings.'

"Relying on this, there was no probable cause analysis done in relation to the targeted arrest of this suspect carrying a bag of trash," the memo continues, including a footnote that reads, "It is important to note, in the TAC9 timeline published in the ROI, timestamp 54:30 states: '…Confirmed possession of incendiary device.' The actual audio is, 'Confirm what is the offense? (Response): Incendiary device possession.' There is no confirmed possession of incendiary device at that time."

"The investigation further falls short by failing to interview the Sergeant who effected the attempted arrest on this suspect and is mentioned in the ROI twenty-two times," the memo continues. "There is not (sic) explanation given as to why he was not interviewed as a Witness Employee. Additionally, the Intelligence Officer who oversaw the intelligence relayed concerning this suspect with an incendiary device, and who was mentioned by name in OPA interview, also was inexplicably not interviewed."

Therefore, the memo states, before closing, "(t)aking all the above concerns in aggregate, OIG cannot certify for thoroughness or objectivity. OIG is not directing additional investigation."

After the OIG staffer's signature, the memo also includes what appears to be at least an excerpt of OIG's note to the OPA investigator on the case and the OPA investigator's response. This appears to be in the form of an email. In the interest of brevity, interested readers may find that brief conversation included in the OIG's memo linked at the beginning of this story.

Myerberg told the Emerald that he would be finalizing the Director's Certification Memo (DCM) and releasing the CCS — which includes the OPA's decision — for the case soon. He went on to say, "I think at that point there will be a fuller accounting of the merit of the OIG auditor's concerns."

The Emerald plans to write a follow-up story when the CCS for 2020OPA-0583 is released.

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

Featured image from the Emerald archives of SPD officers confronting protesters at SPOG headquarters on Sept. 7, 2020. Photo: Maile Anderson.