Even for a seasoned lawyer like Phil Talmadge, the fine the Ninth Circuit Court of Appeals has leveled against King County, the King County Sheriff’s Office deputy who shot Tommy Le, and — in what Talmadge says is also an unusual move — their lawyers, is a surprisingly hefty one: $56,752.60.
“The federal appellate courts, like Washington State appellate courts … are reluctant to award sanctions for a frivolous appeal. It doesn’t happen commonly,” Talmadge said. “There really [has] to be … a pretty flagrantly frivolous appeal before a court imposes the kind sanctions the Ninth Circuit [Court of Appeals] imposed. … There has to be no legalistic basis for the appeal. And that’s essentially what the Ninth Circuit said.”
The sanctions are one of the latest legal moves in the ongoing civil rights case the Le family and their civil case lawyers have brought against the officer, then-Deputy Cesar Molina — now Deputy Sheriff Cesar Molina — and King County. Talmadge worked as the appeals lawyer with the Le family and their civil case lawyers in a motion for sanctions (a penalty); in this case, the more than $56,000 fine leveled against the defendants and their lawyers. The fine is the total amount of money the court found that the Le family has spent specifically to fight an appeal filed by Molina, King County, and their lawyers just prior to the commencement of their trial, an appeal the plaintiffs argued was a frivolous delay tactic.
(This article originally appeared in PubliCola and has been reprinted under an agreement.)
On December 24, Washington State Reps. Debra Entenman (D-47) and Jesse Johnson (D-20) filed legislation that would set statewide restrictions on law enforcement tactics, including bans on chokeholds, tear gas and the use of unleashed police dogs for arrests. Less than a week later, state senators Manka Dhingra (D-45) and Jaime Pedersen (D-43) filed a related bill that would expand the jurisdiction of the state’s Criminal Justice Training Commission (CJTC), a group appointed by the governor that has the power to certify and decertify law enforcement officers — to give or revoke their license to work as a law enforcement officer in the state.
In the upcoming state legislative session, another half-dozen members of the house and senate Democratic caucuses plan to add their own bills to the pile of state-level reform proposals that, if passed, could dramatically reshape the role of the state government in law enforcement accountability.
The only thing that appears to be standing in the way of the Washington State Office of the Attorney General or the United States Department of Justice bringing criminal charges against the King County Sheriff’s Office for its handling of the 2017 shooting death of Tommy Le is a phone call from either King County Prosecutor Dan Satterberg or Gov. Jay Inslee.
But it is a phone call that, as of this writing, will likely not be placed any time soon.
While the Le family attorneys also object to Inslee’s silence on the matter, this story will examine their contention that there exists a major problem within the King County Prosecutor’s Office (KCPO) — specifically, that the KCPO faces a conflict of interest in its decision to reserve the right to bring criminal charges against the deputy who shot Le — criminal charges that could negatively impact King County, the very client KCPO is defending in the ongoing federal civil rights suit regarding Le’s death.
An older man whom neighbors say is a veteran with post-traumatic stress disorder is said to be recuperating at home, after a Seattle Police Department officer pepper sprayed and then pulled him to the ground, during a protest in Capitol Hill on the evening of Nov. 27. Posts on Twitter say that the man was trying to speak to the officers about how their actions and use of a loudspeaker were triggering for him.
One of the man’s neighbors, who declined to be identified by name when the Emerald later spoke with him, caught the incident on video, and posted it online shortly after. Though the video is marked as Nov. 29, someone else made the Emerald aware that this actually happened on Nov. 27. The video, which the Emerald has included below, shows the older man interacting with a Seattle Police Department (SPD) officer, who is pushing him backwards. The older man is carrying what appears to be a collapsible cane.
Kel Murphy-Duford — the 30-year-old man who had been unconscious and on a ventilator at Harborview Medical Center, following his arrest on the evening of Nov. 4 — now appears to be awake and is recuperating. He has since been discharged from the hospital, according to Harborview’s media department.
Seattle Police Department (SPD) officers originally arrested Murphy-Duford on the evening of Nov. 4, claiming he was engaging in property damage. During his arrest, Murphy-Duford apparently suffered a medical emergency that rendered him unconscious, but it is unclear what triggered the emergency. Emergency personnel allegedly said that the man had a seizure. He was subsequently taken to Harborview, where he remained unconscious on a ventilator for several days.
Had the Seattle Police Department officer only punched the demonstrator twice, and for a slightly shorter period of time, the Office of Police Accountability said it may not have found that the officer violated policy when he and another officer — both of whom appear to have been wearing helmets — punched a demonstrator in the course of arresting him on the night of May 29.
This finding was included in one of the case closed summaries into five demonstration-related complaints against Seattle officers released on Oct. 23. In these findings, the Office of Police Accountability (OPA) did not sustain allegations in three complaints and only partially sustained allegations in two complaints against Seattle Police Department (SPD) officers.
Editor’s Note: This article contains details about a homicide case, including images of evidence and crime scene reconstruction, that readers may find disturbing and/or triggering.
In the weeks following 20-year-old Tommy Le’s death at the hands of King County Sheriff’s Office Deputy Cesar Molina, Xuyen Le still refused to believe her nephew would have attacked the police with anything, much less a knife. She told then-Sheriff John Urquhart as much at a meeting of the Asian Pacific Directors Coalition, which she later described in the process of court proceedings.
“I then told the Sheriff it was our firm belief that, ‘Tommy would never attack the police and certainly not with a knife.’ I politely asked Sheriff Urquhart the most important question to our family and community, ‘Why did the officers shoot Tommy if he was not attacking the officers with a knife – a weapon?’” Xuyen Le’s declaration reads.
In findings for six demonstration-related cases released today, the Office of Police Accountability (OPA) has determined that some allegations were sustained in just two of those cases against Seattle Police Department (SPD) officers. One of the cases in which allegations were not sustained was the case against an officer who allegedly pepper sprayed a young boy, because, according to the OPA’s findings, “the boy was not individually targeted.” It sustained two out of three allegations against an officer for placing his knee on a demonstrator’s neck and making unprofessional statements.
The summaries include findings for the officer who allegedly pepper sprayed a child; the officer who put his knee on a protestor’s neck and made unprofessional statements, and a fellow officer who allegedly made unprofessional statements; the allegation that an officer pushed over an elderly man in a show of excessive force; for the officer who was allegedly quoting the movie “Top Gun” when he was overheard saying that he has “a hard on for this shit, and, if they cross the line, I will hit them”; for officers who allegedly used excessive force against protestors and allegedly violated policy by not turning on their body worn cameras; and for an officer who allegedly made unprofessional comments over police radio.
As she listened to the civilian investigator from the Office of Police Accountability (OPA), Aisling Cooney wondered why she was being offered mediation.
“I was thinking, ‘Okay, this complaint definitely can’t be mediated.’ … I have video proof of [Seattle Police Department] officers dragging me through the gravel on my face and throwing me around like a ragdoll,” Cooney said. “If there wasn’t a policy violation [in those videos], I don’t know what they could possibly think is a violation. And after my complaint alleges abuse, false arrest, dragging, hitting with a baton — all of that was included in my initial complaint — and I was still offered mediation.”
According to an OPA flyer on the topic, mediation “is an alternative to traditional complaint resolution. It offers an opportunity for a community member and a Seattle Police Department employee to discuss a disagreement with the guidance of a neutral third party.” The process is supposed to be offered only to complainants whose cases are “deemed appropriate” for such a process, according to the flowchart showing the mediation process, the entirety of which appears to last up to 60–65 business days. The webpage with the flowchart describing mediation says “that mediation delivers the best results when conflict is moderate.”
According to the notes Cooney took on the call with the civilian investigator, Chelsea Whittler, mediation is “more appropriate for non-policy violations.” An example Cooney said Whittler gave was someone filing a complaint against an officer because the complainant felt the officer could have been nicer in the course of their interaction with the complainant.
“At that point, I asked her, ‘Does that sound applicable in my case?’ And she said, “Oh, uh, you know, if these allegations are sustained, then that’s definitely a policy violation,’” Cooney recalled. “But then, I’m asking, ‘Well, why are you offering mediation?’ And she didn’t really answer that.”
To Cooney, the fact that Whittler seemed to just be asking a “list of questions” without any regard to what her case actually entailed, and the fact that Whittler never explained mediation to her — she just asked if Cooney wanted it — is a problem. Cooney said that had she not known differently or had fewer resources and less support, she might have chosen mediation. Such a choice would have likely cleared the officers of wrongdoing and cut off all chance of an investigation, due to the language in the Seattle Police Officers’ Guild (SPOG) contract — something that Judge Anne Levinson (Ret.) recommended be changed during her six years serving as an official outside auditor of the OPA and the City’s police accountability practices, including making recommendations for the SPOG contract. Moreover, it is unclear whether Whittler should have even offered Cooney mediation in the first place based on Cooney’s complaints.
The SPOG contract states on page 18 that all the officer has to do to avoid an investigation — and, therefore, any form of discipline or the complaint on their record — is participate in mediation in a broadly-defined show of “good faith.” This only means that “[t]he officer actively listens to the perspective of the other party; and … [t]he officer fully communicates his/her own position and engages in the discussion.”
“Good faith does not require the officer to agree to any particular resolution of a complaint,” the contract states. The flyer — which is not a binding contract — offers similarly vague language, listing “[s]eek an outcome of mutual understanding” as one of the expectations of participants during mediation.
The SPOG contract also states that officers are paid as though they are working when they go through a mediation process. The meeting portion of mediation appears to last 10 days based on the OPA’s flowchart.
Moreover, the SPOG contract language is unclear and appears to suggest that even if Cooney hadn’t agreed to mediation, but the officer had agreed to mediation before Cooney declined, the officer would escape discipline and the complaint going on their record, according to the SPOG contract. The flowchart — also not a binding contract — does not clarify this.
The Emerald reached out to the OPA with this and multiple other questions for clarification, but only received the following message from Deputy Director of Public Affairs Anne Bettesworth in response: “OPA has a webpage and a 2-pager about mediation that should be able to answer your questions.” She also sent a sentence defining “tolling,” which will be addressed later in this article.
The webpage and online two-pager Bettesworth referred the Emerald to are the flyer and flowchart referenced earlier in this story.
Cooney had been offered mediation for a different complaint once before but declined it even then. The same civilian investigator, Whittler, had offered mediation for Cooney’s June complaint about an SPD officer pepper spraying her directly in the face from about a foot away at a June 7 protest in Capitol Hill.
The act sent Cooney to the emergency room.
The videos of this event, which Cooney submitted in support of an American Civil Liberties Union (ACLU)-led group lawsuit and shared with the Emerald, appear to show SPD officers “kettling” Cooney and other protestors — herding people into a confined space from which they cannot leave — before pepper spraying and throwing flash bangs at them.
In her official testimony about the event for the group lawsuit, Cooney said the officers gave the demonstrators no warning about the pepper spray or blast balls — which goes against SPD policy — and that a flash bang exploded near her, disorienting her.
“In the video [of this event], you can see me stumbling in a circle for over 25 seconds. … More police approached us from behind and trapped us between the two groups of police. There were more police than protesters,” Cooney’s testimony reads.
Then, Cooney said, officers grabbed her and began shoving the still-disoriented young woman “from officer to officer.” A short time after this, she was pepper sprayed directly in the face. As the stinging spray drenched her, Cooney tried to turn away, but the officer continued to spray her back and neck.
“I was in extreme pain and went to the medic tent. They assisted me in washing off the pepper spray off my skin. I developed a large rash in response to the pepper spray. I was coughing a lot and also had trouble breathing,” Cooney’s testimony reads. “The medics thought my reaction was severe and one of them drove me to the emergency room. I was monitored for several hours at the emergency room for anaphylaxis. When I was discharged, the doctor said I had had a very severe reaction and prescribed me an epi-pen.”
It should be noted that using pepper spray — also known as “OC spray,” which stands for the neurotoxin oleoresin capsicum — from a foot away is against recommendations for safe deployment of all but the smallest cans of pepper spray, like a those that attach to a keychain for personal protection and typically contain less than one ounce. For example, Sabre — a widely used pepper spray manufacturer — recommends a minimum of 10 feet for its 16-ounce cans. The SPD manual does not list what manufacturer produces the pepper spray it uses — all it says is that it must be department-issued or approved — but in all of these videos, it is clear that officers are not using keychain-sized cans of pepper spray that civilians are allowed to carry.
When Cooney spoke with Whittler the first time, she let the question about mediation go. Even though Cooney declined, she didn’t ask for information about mediation, and chalked up the question to the slim chance that this was the kind of thing that could be mediated.
But after Whittler asked her if she wanted mediation for her complaint involving allegations of multiple forms of physical abuse and false arrest on July 25, Cooney did not let the question go. To her, it seems “manipulative” to offer mediation without explanation to people who are probably already nervous about putting in a complaint about an officer and might also be traumatized from the event about which they are putting in a complaint.
“I think that OPA is taking advantage of victims, and taking advantage of them not understanding legal jargon, and taking advantage of … what [complainants] don’t know, and maybe that they aren’t going to question OPA as much,” Cooney said.
The process of mediation is one of many Judge Anne Levinson (Ret.) — who has a long history of work in the realm of police accountability — suggested be changed in her analysis of and recommendations for the SPOG contract in 2013 in her capacity as an outside auditor of OPA from 2010–2016. In her recommendation, Levinson contended that “[c]omplainants who make use of a mediation or other alternative resolution process should not be limited to the results of that process and be able to elect that the case proceed to an OPA investigation.”
While the City adopted one of her other recommendations into the SPOG contract — that officers be required to participate in mediation in good faith — it ignored the recommendation that the complainants be allowed to elect for an OPA investigation, once they accept mediation. Once a complainant chooses mediation, there is no way they can ask for an investigation instead. The SPOG contract dictates that that decision is left up to the mediator, who must report that the officer did not act in “good faith,” in order to initiate an investigation.
It is not entirely clear who can be chosen as a mediator, but the SPOG contract requires that OPA choose a mediator from the King County Office of Alternative Dispute Resolution [KCADR], which says in its FAQ section that mediators “[m]ost of the mediators in our cadre are employees of the public agencies and labor unions that are members of the consortium who have been trained and certified as mediators. We also have many professional mediators who volunteer their services to the consortium.” It also lists what unions and public agencies belong to the group. Neither the SPD nor SPOG is among them.
It is unclear exactly how mediators are chosen for each case. As far as how the OPA selects mediators for its mediation program, the OPA flyer reads, “[m]ediators are selected, in part, because of their restorative justice lens and ability to balance the difference in power between participants.” However, it does not offer any more explanation than this.
According to the August 2019 OPA Mediation Guidelines, mediators must meet several qualifications, such as “[e]xperience holding space and fostering a productive environment that allows participants to speak candidly and reveal their underlying issues and interests,” “[e]motional intelligence and has experience navigating highly intense or uncomfortable dynamics and conversations,” and “[c]ompletion of at least one OPA-observed mediation session.” Things “holding space” and “emotional intelligence” are further defined in the guidelines.
When the Emerald asked if the selection of mediators is random or specific from a pool of predetermined applicants whose eligibility is based on the above criteria, or if they are chosen in another way, Bettesworth did not reply.
Moreover, if the OPA wants to “pursue an alternative contractor or method of obtaining mediators, OPA will consult with SPD labor unions per the collective bargaining agreement, to form a mutual agreement,” as set forth in the guidelines. According to the language in the SPOG contract, short of a separate agreement process, this effectively removes any ability the OPA has to choose different mediators other than the ones the county hands them.
These same guidelines also lay out types of violations that are “potentially eligible” for mediation, including violations of constitutional protections, such as free speech; and “Type 1 use of force,” which includes blast ball usage, “transitory pain,” and disorientation. This would suggest that Whittler was treating Cooney’s case based on the guidelines — but the guidelines also state that “not all of the listed allegation types will be suitable for mediation due to the severity and specifics of the case.” This caveat appears to suggest that investigators need to treat each case on an individual basis, and not simply rattle through a list of questions, as Cooney believes Whittler did.
The guidelines also state that allegations that are criminal violations or “[i]ntentional or reckless violation of policy” are not eligible for mediation. It does not define what “intentional or reckless violations of policy would be,” and the SPD manual’s wording on appropriate use of force — like deployment of pepper spray and blast balls — appears to suggest officers have quite a bit of leeway when making those decisions.
It is also unclear how a mediator determines if an officer is acting in “good faith” or “bad faith,” the latter definition of which is noticeably absent in the contract. The term “good faith” is up for interpretation and appears to be highly subjective within the context of the law, according to several legal writings. As the American Bar Association points out in a column concerning limited liability companies, “the term indicates a test that is either entirely subjective or has both subjective and objective aspects.” It references this 1997 case that states “‘[g]ood faith’ clearly suggests a subjective element.” That 1997 case references a 1968 case that says that “good faith, as used in the case law, is best understood as an ‘excluder’ — it is a phrase which has no general meaning or meanings on its own, but which serves to exclude many heterogenous forms of bad faith.”
Because of the highly subjective nature of determining good faith and the broad brush with which the SPOG contract defines it, it was unclear to the Emerald how mediators could apply a standard of good faith, outside very specific guidelines. When the Emerald asked exactly how mediators determine whether an officer is acting in “good faith,” Bettesworth did not reply.
Though the guidelines offer a little more clarity on the matter of “good faith” in the Mediator Post-Mediation Survey, it should be noted that, again, unlike the SPOG contract, the guidelines are not a binding agreement. Moreover, the guidelines are brief, and outline things like, “[m]odifies their behavior during mediation,” “[d]iscusses ideas for an improved future,” and “[s]hares relevant information.”
Cooney said that the overall complaint process with OPA is about as clear as mud. She only learned through the OPA Demonstration Complaint Dashboard that her case was being “tolled,” which, according to Bettesworth, means “that the investigation ‘clock’ stops running for a certain period of time.” Cooney was not told how long her investigation would be suspended or why it was suspended.
A few minutes after the original version of this article was published, Cooney received a message from the OPA, which said that the “case has been tolled due to the unavailability of two of the involved officers.”
“One officer is out on leave with an injury and another is on military leave,” the message read, going on to say that an SPD sergeant working with the OPA will attempt to contact the injured officer, once the officer returns to work, but that the OPA is “not certain when, exactly, that will be.”
“However, [the sergeant] will not be able to speak with the officer on military leave until his return. As such, OPA and the police union have agreed to place the case ‘on hold’ … so that we are able to complete the investigation without running afoul of our due dates,” the message reads, referencing the 180-day deadline for investigations.
But despite these problems, Cooney is “dedicated to seeing the complaint process through.”
“But if I were a Black woman filing a complaint against an officer who had assaulted or arrested me — without the support that I have, because I am a protestor, and the privilege that I have, because I am a white woman — would I be able to see this process through? Probably not, because I may not have any counsel, or any experience with this,” Cooney said.
Carolyn Bick is a journalist and photographer based in South Seattle. You can reach them here and here.
Featured image is a screengrab from the video showing an officer pepper spraying Aisling Cooney at the June protest in Capitol Hill.
Footage from a video circulating widely on Twitter appears to show Seattle Police Department (SPD) officers on bicycles chasing down, beating, and arresting a small group of three people in what appears to be the Chinatown-International District (CID) on the evening of Aug. 16. Earlier that evening, a protest took place in front of the Seattle Police Officer’s Guild (SPOG) headquarters in SoDo. It is unclear if the officers believed the individuals were protestors who had moved from SoDo to the area shown in the video.