by Carolyn Bick

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The Seattle Office of Police Accountability has decided that there is “insufficient evidence” to hold the Seattle Police Department officer who drove an unmarked SUV onto a crowded sidewalk last August responsible for assault by allegedly violating City and police department standards and duties, and adherence to the law, as well as City and police department policy.

Additionally, after initially recommending that the allegation that this officer violated laws prohibiting negligent driving be sustained — citing the application of “a preponderance of the evidence standard” — the Office of Police Accountability (OPA) changed its mind, saying that it did so “after further review of the BWV [body worn video] of the witness officers, the legal conclusions reached by the [Seattle City Attorney’s Office] SCAO, and discussions with the chain of command at the discipline meeting on this matter.”

The OPA released this decision and a slew of other protest-related decisions the morning of Friday, April 30. This particular decision centered around a Seattle Police Department (SPD) officer — later determined to be Sgt. Michael Tietjen, according to the Seattle Times — driving an unmarked car onto a Capitol Hill sidewalk, where protestors were standing. As first reported by the Emerald, in the original video taken by eyewitnesses of the incident, protestors can be heard screaming and yelling. In a later video, a protestor tells Tietjen, “I saw you hit, almost, a bunch of people.”

As noted in its original story about this incident, the Emerald received a link to the uncut version of this video, in which the officer sounds out his name: “tee-jin.” The Emerald included that video in its original story.

As reported by KUOW about a month after the incident, Tietjen was placed on administrative leave while the OPA investigated the incident. According to KUOW, Tietjen has in the past been the subject of ethics investigations and excessive force allegations.

According to the OPA decision released on April 30, there were three other officers in the car, too. Only three of the four were included in the complaint, and, as per the contract that governs the OPA, none of them were officially named. The OPA ultimately sustained three allegations among these officers.

Before the incident summary, the OPA also noted that “[t]he Office of Inspector General for Public Safety (OIG) certified this case for timeliness, but not for objectivity or thoroughness.”

The OPA did not explain what this means in its decision, and it is not immediately clear if the OIG has not certified OPA cases for objectivity and thoroughness in the past. To the Emerald’s immediate and best knowledge, this is the first time such a note has appeared in a 2020 protest-related case. The Emerald has reached out to OIG Inspector General Lisa Judge to ask about this.

“The OIG’s reasoning is fully set forth in its certification memo,” the OPA’s decision also read. “OPA disagrees with the majority of the points raised by the OIG, finds them overly didactic and immaterial to the ultimate findings in this case, and declines to address them further herein.”

Because the OPA “declines to address them further,” it is unclear what points the OIG made that were “didactic and immaterial.” The Emerald has reached out to Judge to ask about this.

The OPA also said in the incident summary itself that, originally, “[a]fter reviewing the video, OPA determined that a criminal referral was warranted based on [Tietjen]’s operation of the SUV.”

“OPA requested that SPD conduct the criminal investigation to determine whether probable cause existed to charge [Tietjen] with a crime,” the OPA summary read. This means that Tietjen was subject to a criminal investigation for alleged assault with a vehicle.

The OPA said that SPD’s Traffic Collision Investigation Squad (TCIS) was assigned to the case. According to the OPA, the TCIS “analyzed the video taken of [Tietjen]’s driving and mapped that to an assessment of the scene. TCIS concluded that [Tietjen] drove onto the sidewalk on the northeast side of East Pine Street and 11th Avenue. At that time, the patrol vehicle was approximately halfway onto the 11-foot-wide sidewalk. [Tietjen] drove down the sidewalk for around 80 feet until pulling back onto the road as he advanced towards a metro bus stop.”

The TCIS also interviewed all the witness officers within the car, but Tietjen did not consent to be interviewed for the criminal investigation, the OPA decision said. The OPA interviewed him after that investigation had been completed. The witness officers claimed they were trying to arrest people who were allegedly shining strobe lights into the car. They all said that they were following orders from their lieutenant — whom the OPA complaint did not name or assign a name to other than “Lieutenant,” again as per its contractual regulations — to arrest anyone “engaging in criminal activity.”

The officers said that the people in question were on the sidewalk, so they “made an apprehension plan and drove towards the individuals,” the OPA decision read. The officers said they drove onto the sidewalk in order to get as close as possible to the people running away, and claimed that no one was in danger from the officer driving the car onto the sidewalk.

The OPA said that TCIS tried, but could not reach any of the community members who originally filed complaints about this incident. Additionally, the OPA said TCIS cited the “limitations” of the by-then widely circulated videos of the incident, and said it “could not conclusively determine how close the SUV came to the individuals and whether it almost struck anyone.”

“TCIS also noted that, due to the camera view and obstructions, the vehicle’s exact path on the sidewalk could not be discerned,” the OPA decision read. “After TCIS completed its investigation, it referred the case to the Seattle City Attorney’s Office (SCAO). After reviewing the file, the SCAO declined to file charges against [Tietjen], citing a lack of evidence to prove criminal charges beyond a reasonable doubt. At that point, the case was referred back to OPA for further investigation.”

However, the period of time in which the officers were driving the car onto the sidewalk was not recorded on video, the OPA decision read. The OPA did not state why the “driving was not captured on” body worn video, but when the Emerald reached out to the OPA to ask about this, OPA Dir. Andrew Myerberg told the Emerald that this was an error in the document.

“There was [body worn video] BWV of the driving but no [in-car video] ICV,” Myerberg said. “The BWV was recorded by the officers while they were sitting in the vehicle, so the vantage is not perfect. The vehicle was not equipped with ICV.”

Myerberg said he would issue an updated document explaining this and flagging the error.

The body worn cameras captured video shortly after. OPA quoted at least one interaction with a community member that appears to have taken place after the officers drove onto the sidewalk: “NE#3 spoke with a community member who asked him what would happen if the community member ran a search of the SUV’s license plate. NE#3 replied that he might get a ‘rick roll’ (a meme that involves clicking a link that takes the viewer to a music video of Rick Astley’s 1987 song ‘Never Gonna Give You Up’). OPA further reviewed the third-party video, the criminal investigation, and interviewed the Named Employees.”

The OPA ultimately said it could not find enough evidence to sustain any assault, law, or policy violations, or negligent driving allegations against Tietjen, with regards to the first allegation against him. As outlined earlier in this article, the OPA cited many factors in its decision, but one of the biggest factors was the SCAO’s conclusion.

“Of all these considerations, the SCAO’s stated conclusion is the most determinative,” the OPA’s decision read. “This does not mean that OPA finds that no such violation occurred, as OPA remains very concerned with this incident and believes this question to be an extremely close call.”

The OPA did sustain the allegation against Tietjen that he improperly drove in what is termed “emergency response.” According to the SPD’s policy on the matter, “[o]fficers may drive in an emergency response only when the need outweighs the risk.” The policy further instructs that: “The preservation of life is the highest priority. Criminal apprehension and the preservation of property are secondary.”

The OPA spoke with Tietjen for this incident, as it was apparently unconnected to the TCIS’ criminal investigation against him. The OPA said that Tietjen told OPA investigators that the need to arrest the person allegedly using a strobe light outweighed the risk of driving the car onto a sidewalk full of people.

“OPA struggles to understand how this could be the case. Notably, reckless endangerment, even if established ([Tietjen] would need to show that the use of the strobe light caused a risk of death or serious physical injury), constitutes a gross misdemeanor,” the OPA decision read. “This was not a felony arrest or an incident where someone was actively causing violence.”

“However, [Tietjen] took a significant risk in accelerating and pulling onto the sidewalk. While the Named Employees asserted that no one was in the path of the SUV, at least one person was shown on video moving away from the vicinity of the sidewalk,” the OPA decision continued. “Moreover, he did so while driving a dark colored SUV and without activating his emergency lights and siren.”

As reported in the original story, Tietjen stated in the original video of the incident aftermath that he was a “professional,” and could therefore drive the car onto the sidewalk. But the OPA said that Tietjen’s “acts were improper and inconsistent with policy,” and that even though officers are not barred from driving onto a sidewalk to do their jobs, “such conduct should be reserved for those cases in which the need to apprehend a suspect is so high that the danger of driving in that matter is acceptable.” 

“In OPA’s opinion, this was not the case here. Ultimately, OPA finds that [Tietjen] failed to comply with the core expectation of this policy – to preserve life and safety over apprehending a criminal,” the OPA said, concluding that “[f]or these reasons, OPA recommends that this allegation be Sustained.”

The OPA also found that Tietjen violated professionalism standards for his comments towards and about protestors and the City — most notably, calling protestors “cockroaches,” and saying that the City is “fucking dirty” — and for the fact that driving the car onto the sidewalk “undermined public trust and confidence” in both Tietjen and the SPD.

Finally, the OPA removed a fourth allegation, which stated that Tietjen violated the SPD’s discretion policy. The OPA reasoned that the allegation was duplicative, saying that the “OPA finds that [Tietjen]’s actions and decision-making — including how problematic each were — are already fully captured by Allegations #2 and 3. Accordingly, OPA finds that this allegation is duplicative and recommends that it be removed.”

The OPA summary stated that Tietjen’s discipline is “pending.”

Named Employee #1 (NE#1) was found to be in violation of the SPD’s standards for professionalism. The OPA reviewed body worn video, and found that this employee violated professional standards by yelling at protestors statements that included, “[H]ey buddy, yeah, hey get a job, buddy. You look homeless, bye bye.” The OPA said that these statements were obtained via the officer’s body worn camera.

The OPA recommended a written reprimand for NE#1.

The OPA did not sustain the allegation against Named Employee #3 (NE#3) for violating professionalism. It called his statement about a “rick roll” — also captured on body worn video — “unnecessary under the circumstance and juvenile,” but not against standards, because it did not contain profanity.

Author’s Note: The Emerald originally mistakenly wrote that the OPA “removed a fourth allegation, which stated that Tietjen violated the SPD’s use of force policy.”

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📸 Featured Image: A still from a video from Aug. 12, 2020, showing a GMC truck running onto the sidewalk in Capitol Hill.

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