Photo depicting protestors in Seattle holding up smartphones to film while Seattle police use flash bangs and pepper spray to disperse them.

Unreleased Investigation Sheds Light on Police Use of Tear Gas on Protesters in 2020

Officer Interviews

Former Capt. Matthew Allen

The draft report then summarizes its investigation. It quotes from several different officer interviews originally conducted by the OPA, beginning with Allen.

The draft report says Allen drafted a “detailed” use of force (UOF) report concerning the events of June 7 and June 8, 2020, and notes that a copy of the draft report is attached. In the UOF report, Allen writes “that he had worked six shifts in a ‘demonstration management role’” prior to June 7, 2020. On June 7, 2020, he attended a roll call along with Lt. John Brooks, the day’s assigned deputy operations chief. The draft report quotes some of Allen’s statements to officers during that roll call, which readers can find in the draft report itself, linked at the beginning of this story.

“In his UOF report,” the Seabold Group’s draft report reads, “Capt. Allen also stated that he was familiar with the Chief’s June 5 email placing limitations on the use of CS gas and said that he had spoken to AC Mahaffey about the Chief’s directive. Capt. Allen said that AC Mahaffey told him he (Mahaffey) was the Chief’s ‘designee’ for purposes of the email and instructed Capt. Allen ‘to keep our officers safe and defend the East Precinct. He told me if things turn violent and there is a life safety need to use CS then I was authorized to do so.’”

The report then outlines events Allen noted in his UOF report that eventually culminated in his order permitting police to use tear gas on protesters. He states, “I then heard someone on the radio announce that there was a man with a gun at 11th and Pine St. and I was gravely concerned that someone was going to get shot and killed. There had already been one person shot earlier in the evening and I did not want there to be another.”

A couple of key footnotes accompany this section.

One regards the use of body-worn video in investigative efforts. It shows that the Seabold investigator did not review the action on the ground, because she did not deem it to be within the scope of the investigation. It states:

Officers were ordered to activate their body cameras at approximately 7:35 p.m. (1925 hours) [The Emerald has noted the time mismatch here, neither the OPA nor Seabold responded when the Emerald requested clarification regarding the correct time.]. As such, there should be numerous recordings available that show the conditions on the ground as the evening progressed. This investigator did not request to review those videos because the actions of the officers and command staff were not within the scope of the investigation. The scope of this investigation was limited to whether Chief Best abused her discretion in ordering the deployment of CS gas or otherwise engaged in misleading or unprofessional conduct.

Another states, “There had also been earlier radio communications reporting a man with a gun (10:06 p.m.).” This footnote says SPD’s dispatch log, showing this, is attached, but it was not part of the documents SPD gave the Emerald. It is unclear whether this was the only report of a gun, and whether it was this report Allen cites, because Allen does not give an approximate time for the report he said he received.

As indicated earlier in this story, the Emerald asked SPD’s media team on May 18 about whether there had been any additional protest-linked firearm sightings. SPD’s media team said it could not answer the Emerald’s question. Neither the OPA nor Seabold responded to the Emerald.

Additionally, as mentioned earlier in this story, the Emerald separately obtained an email showing that, just after 9 p.m. on June 7, SPD officers had determined the shooting was unrelated to the protests, and just occurred on the same block.

“In case you do not get the info from another source. We just had a shooting in the area of our ongoing protest in our East Precinct. The suspect is in custody. … The shooting is not directly related to the protest,” then-SPD Lt. Grant Ballingham writes in a June 7, 2020, email. The email is addressed to a “Sarge” DeMarco — whose first name is unknown, but appears to start with a “D” — at an email address associated with the New York and New Jersey division of the U.S. Office of National Drug Control Policy. Ballingham also CCs then-SPD Sgt. Shane Anderson, citing Anderson in the email as the point of contact.

It is immediately unclear why Ballingham would be sharing this with a drug policy enforcement office. As indicated earlier in this story, the Emerald asked SPD’s communications team about this email, and specifically asked why Ballingham would be sharing such information with a federal drug policy officer based out of the New York-New Jersey area. SPD said it could not answer the Emerald’s question. 

The Emerald followed up on May 19 to ask specifically whether officers on the ground or at the Seattle Police Operations Center (SPOC) knew the shooting was not protest-related, before Allen gave ground officers permission to use tear gas. SPD said in an email back on the same day that “these two questions fall into the same category as the first two and would require research that unfortunately we don’t have the time to do.”

The draft report says Allen claims in his UOF report that “[f]urther deescalation efforts were neither safe nor feasible,” but does not say why. He says he directed SWAT Commander Lt. Trent Bergmann to use tear gas on protesters, “with the expectation that it would help quell the violence and further disperse the crowd.”

Allen’s UOF report later states, “Per the SPOC log, at approximately 0046 hours there is a notation that if the crowd stays static then there would be no more CS and that the only munition to be deployed if necessary, is OC spray.”

An OIG-led accountability panel repeatedly noted that SPD officers’ actions appeared to be unhelpful to 2020’s large-scale protest scenarios, such as when officers hemmed in and pushed protesters back onto themselves, creating a crush of people in high-tension situations. Videos and livestreams of the police response to protesters did not give the protesters any option to “stay static.” He also does not appear to state in his UOF who gave the “notation” regarding the cessation of tear gas, if protesters stopped moving.

Seabold’s draft report states that Allen transferred command to SPD Capt. Keith Swank, and then moves on to summarize Allen’s investigative interview with the OPA, which the OPA conducted on Nov. 5, 2020, treating Allen as a witness officer.

The draft report notes that Allen’s interview is consistent with his UOF report. However, the report also states that in his interview, “Capt. Allen further reported that as the evening progressed into the early morning, his officers and members of the National Guard were taking on more projectiles. One such incident that occurred around midnight triggered the deployment of OC spray by one of his officers, which appears to have escalated the situation.” (Emphasis the Emerald’s.)

The object in question was a water bottle, according to the draft report.

Seabold’s footnote here reads, “Whether that officer’s deployment was justified under the circumstances is not within the scope of this investigation.”

It was at this time that Allen gave the order to use tear gas. Following that order, the draft report states, “individual SWAT members used their discretion whether to continue deploying CS gas based on their assessments of the then-existing threat. None of the SWAT officers who deployed CS gas during this event were named employees, and whether they properly exercised their discretion is not within the scope of this investigation.”

The draft report states that when OPA investigators asked Allen whether using tear gas was a proportionate response to a protester throwing a water bottle, he told the investigators the decision “was not based on that one incident. He said it was based on the ‘totality of circumstances’ he previously described, including radio communications that a man with a gun had been observed in the crowd, the fact that there had already been one shooting that day, and that the crowd was becoming increasingly violent toward his officers.”

The draft report specifically notes that OPA investigators did not ask Allen whether he spoke with Best prior to the event, and that he did not mention it in his UOF report. The draft report states that OPA investigators asked Allen whether he spoke with Best after the event, to which he replied that he did not remember doing so, but that Mahaffey may have.

Lt. John Brooks

The draft report then moves on to Lt. John Brooks’ investigative interview, which the OPA conducted on Nov. 12, 2020. The report states that while Brooks was deputy operations chief during the June 7–8 protest event, the OPA only interviewed him as a witness officer. It does not appear the Seabold investigator reached out to Brooks for an interview, since the amended draft report was submitted to the OPA in January 2023, and Seabold’s contract ended in December 2022, without renewal, according to what the OPA told the Emerald for the prior-linked story. Additionally, as indicated earlier in this story, the Seabold investigator notes where interview attempts failed. Neither the OPA nor Seabold answered the Emerald’s questions about this. 

In his interview, Brooks cites Best’s June 5 directive not to use tear gas, but that he understood Best could designate her authority to another officer. He claims in his interview that tear gas is “probably the least dangerous” of available crowd control munitions, and that it’s used to disperse people. However, he does not acknowledge the June 5 joint recommendation that the City’s accountability agencies — the OPA, the Office of the Inspector General (OIG), and the Community Police Commission (CPC) — issued regarding the use of tear gas during an airborne pandemic, which came the morning of the press conference during which Best announced her decision to limit its use.

Brooks says he “was advising Captain Allen. And he made [the] decision to authorize the deployment of CS [gas].”

Brooks then goes on to state that “if I would have been in [Capt. Allen’s] shoes … I would authorize CS. I believe that the decision was made on – it was predicated on extreme emergency and exigency. … [W]e only had two choices. Either we charged moving forward or we had to do something to disrupt the crowd, or people were going to get hurt – seriously hurt.’”

Assistant Chief Thomas Mahaffey

The Seabold investigator writes that she interviewed Mahaffey on June 17, 2022, as a witness. As the Emerald mentioned earlier in this story, the OPA had designated him only as a witness officer when it opened the investigation in 2020. The transcript of his interview is noted as an attachment to the draft report, which, like all other attachments, SPD did not provide to the Emerald.

In this interview, Mahaffey tells the investigator that “‘overall command of the event, sets the – what the intent is for the operation, what the goals are, and then it’s up to the operation section chief to put the plan together’ to achieve those goals. ‘[T]he actual deployment in the field will fall under the operations section chief.’”

The Seabold investigator writes that when questioned about the June 5, 2020, directive from Best limiting the use of tear gas, Mahaffey said he was “familiar” with the order, but could not recall why she issued it. 

He also stated that “he did not recall that Chief Best formally named him a “designee” for purposes of the directive” — the limitation on and conditional authorization to use tear gas — “but he said that he was the ‘on-duty incident commander for all of these protests,’ starting on or near June 2 or 3 of 2020. 

“As such, AC Mahaffey said, ‘it would be logical sense for the assistant chief that was overseeing the operation to be the Chief’s designee. The chief … can’t be available at all hours, so there’s delegation of authority to the commanders.’”

In other words, Mahaffey did not have explicit instruction that he had authorization to override Best’s limitation on the use of tear gas.

However, he tells the investigator he did not see it that way then, and still does not see it that way now. 

“AC Mahaffey stated that as the incident commander, he also had the discretion to delegate his authority to order the deployment of CS gas to Capt. Allen without requiring Capt. Allen to first obtain AC Mahaffey’s approval. He said that he told Capt. Allen he would have this authority in the following circumstances: ‘[I]f it’s so severe that it’s a life-safety emergency that you feel it’s necessary to deploy gas immediately, i.e., you’re in the field, you’re viewing what’s happening in front of you, you’re getting the information in real time.’”

Mahaffey says he felt it was “too cumbersome” to have Allen get a hold of him over the phone, if there was a perceived life-safety emergency. 

Mahaffey also states he did not believe he had to talk with Best before handing over his perceived authority as her designee in the use of tear gas to Allen.

Mahaffey tells the Seabold investigator that he tried to get into the East Precinct on the evening of June 7, 2020, but turned back when he saw it had been barricaded. He says he believed there to be a “potential for confrontation if I needed an escort to try and get in, so I didn’t try to get in through the perimeter; I went back [to] the operations center.”

From the operations center, Mahaffey says he believes he spoke with Allen, but does not recall the specifics of any conversation. He says he does not believe he spoke with Allen before Allen gave the order for police to use tear gas on protesters. Instead, he says, the order was “very immediate,” and allegedly came after “several reports” of someone with a “firearm” in the crowd.

Mahaffey says he spoke with Best following Allen’s order allowing police to use tear gas on protesters. He says he does not recall speaking with Allen before calling Best, but that it was “possible.”

Mahaffey tells the investigator he does not recall the specifics of his telephone conversation with Best. However, he says he believes “he reviewed the incident and the reasons for deploying CS gas based on live-stream video that was available to him and on radio communication.”

A footnote here states that Mahaffey tells the investigator that the department “was continually monitoring open-source video” — in other words, streamers and news media — “during this period. He said ‘[t]here was [sic] a lot of people live streaming through this area, various social media-type accounts that was [sic] open to anyone … to see. So I think that’s where we got the majority of our video from.’”

Mahffey says Best was not in SPOC that evening, and that he does not know whether she was monitoring communications or events as they unfolded. By the time he spoke with her, Mahaffey says the order to use tear gas “had been withdrawn because the ‘emergency had passed.’” 

This means there was at least a 32-minute delay between Allen issuing permission for officers to use tear gas and Mahaffey getting in touch with Best. The report does not state when Mahaffey reached Best.

The report continues: “[Mahaffey] stated, ‘We had a matter-of-fact conversation about what occurred and what the reasoning was for the gas being used.’ AC Mahaffey said that Chief Best never suggested to him that he or Capt. Allen had exceeded their authority or abused their discretion in connection with the use of tear gas that morning.

Mahaffey tells the investigator that he knew the decision to allow Allen to give the order permitting police to use tear gas on protesters would be “problematic,” stating, “[W]e had reason to believe, based on statements that we had seen online and what people were chanting in the crowd, that there was potential for significant violence against police officers and the building itself.”

When asked whether he thought Allen had spoken with Best before using the tear gas, Mahaffey said, “He knew that I was in his direct chain of command. We had the conversation about expectations for that evening, how things would go, so I have no reason to [believe] that.”

When asked about the June 11, 2020, press conference Best gave — in which she mainly focused on the abandonment of the East Precinct, but in which she also addressed the use of tear gas and said it was her decision to use tear gas — Mahaffey “said he didn’t recall hearing that statement at the time and that Chief Best ‘might have just been taking ownership as being the leader of the organization, but I don’t remember her specifically saying that.’”

The draft report also includes quotes from Mahaffey’s original sworn declaration, filed on June 9, 2020. 

In this declaration, Mahaffey states that “SPD received a report of a white male individual in possible possession of a gun in his front pocket,” and says this caused concern, because of a shooting earlier that evening. However, he does not time-stamp this observation. Given that he recalls both movement and confrontation between that statement and use of tear gas — time-stamping its use as “shortly before midnight” — it appears some length of time passed between that observation and the order. 

Notably, Mahaffey does not cite another report of this or a different gun sighting, despite telling the Seabold investigator two years later that there were “several” reports.

The investigator notes that “AC Mahaffey’s declaration … was the most contemporaneous statement he has provided regarding this event.” A footnote states it is attached to the draft report. The Emerald is not in receipt of this attachment.

Former SPD Chief Carmen Best

The investigator writes that because Best declined to participate in the investigation, the investigator relied on available public documentation and witness statements. The Seabold investigator does not mention any OPA interviews of Best. It does not appear the OPA investigators interviewed Best about this case, despite opening said case in June 2020 — months before she resigned — and naming her as the sole involved officer. It is also unclear whether the investigator attempted to find other sources of information, such as text messages or emails that were not provided in the OPA’s original casefile. Neither the OPA nor Seabold responded to the Emerald’s questions about whether the OPA interviewed Best and whether the Seabold investigator attempted to find other sources of internal documentation beyond what the OPA or SPD had provided.

Last year, the Emerald published two stories regarding the abandonment of the East Precinct, which focused on then-newly unearthed text messages among SPD command staff and an email from the Office of Emergency Management (OEM) that appeared to tell a different story than what officers had told OPA investigators. Therefore, there may be more records yet to be uncovered that could shine more light on the events surrounding the June 7–8 protest. 

The report cites the OPA’s, the OIG’s, and the CPC’s June 5 memo to Durkan and SPD — linked above in the section about Lt. John Brooks’ interview — and briefly discusses the afternoon press conference Durkan and Best gave that day.

While Durkan incorrectly referred to the directive limiting police’s ability to use tear gas on protesters as a “ban,” Best subsequently clarified that “‘only specialized trained SWAT personnel’ were authorized to use tear gas, and ‘only in situations where [there are] life safety issues,’ and ‘only if I approve it.’”

It’s unclear whether Durkan’s apparently incorrect messaging regarding the use of tear gas was at play in the misunderstandings that ensued.

The report states that confusion surrounding messaging regarding the use of tear gas ensued, in both the general public and in media outlets. It cites a June 10, 2020, Seattle Times article, titled, “How ambiguity and a loophole undermined Seattle’s ban on tear gas during George Floyd demonstrations.” 

“[T]he Times reported that during the June 5 press conference, Mayor Durkan and Chief Best failed to clearly articulate that the ‘SWAT exception would apply during the ongoing demonstrations,’ while also noting in that same article that ‘at 9:44 p.m. Friday, several hours after the news conference, a post to SPD’s website for the first time explicitly stated that SWAT officers could still deploy tear gas ‘for purposes of crowd control.’” the report reads.

In the June 11, 2020, press conference — which primarily focused on the abandonment of the East Precinct — the report notes that Best differentiates between the decisions to use tear gas and for officers to leave the East Precinct:

For the tear gas, it was my decision. I think I prefaced that and made it very clear that we did not want to use any of the pepper spray, flash bang, blast balls or tear gas, and we suspended the use for 30 days unless there was a life-safety situation. And that was the exemption. I was keeping abreast of what was happening in the precinct. They had a shooting earlier in day [sic], [and] at some point it got unruly. There was a man with a gun in the crowd. The officers felt like it was a life-safety situation based on what was occurring and I concurred. And I own that decision. I made that decision and I will own any decision when I think it is in the best interest of everyone’s public safety … I totally own that decision. (emphasis added [by Seabold investigator])

The report then briefly cites the ongoing federal litigation (linked above in Post-June 7–8 Protest: Events Summary and Summary of Factual Findings section), and a June 12, 2020, OIG report, entitled, “Less Lethal Weapons Usage in Protests.”

In the portion regarding the use of tear gas, the OIG quotes from the International Association of Chiefs of Police (IACP). The OIG writes, “CS should be used with caution in crowd control situations, as [quoting from the IACP,] ‘uncontrolled use can have negative consequences with respect to efforts to control, management [sic] or disperse crowds. … [U]se of CS may escalate violence and ‘the crowd should be warned prior to CS deployment and provided with avenues of egress.’”

After briefly discussing the OIG’s Sentinel Event Review (SER), specifically the SER’s Wave 2, which covers several events, including those of June 7, 2020, through June 8, 2020, the draft report appears to abruptly end. It is unclear whether more will be added, but the draft report does not appear to contain any final conclusions. The ending is identical in both the October 2022 version and the January 2023 version.