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]