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Tuesday, December 16, 2008

Excessive Force Complaint Sustained In Mark Hays Case -Updated

Originally posted at 02:08 on 12/16/08, updated 13:52 on 12/16/08

The Seattle Police Department's Office of Professional Accountability's Civilian Auditor released her biannual report recently and in it was a revelation that I wasn't aware of. It appears as though the OPA, the SPD's internal investigations division, may have found that officers used excessive force when they arrested Mark Hays and Michael Lujan earlier this year.

If you didn't remember, Mark Hays and his friend were walking back from a night out when they apparently jaywalked in front of an unmarked SUV full of undercover Seattle Police officers. The plainclothes officers, part of the "proactive policing" "Anti-Crime Team" yelled at the pair and told them they could be arrested for pedestrian interference. The pair apparently told the officers where they could put their interference and the officers piled out of their unmarked SUV and started arresting them.

What happened next, supposedly in front of several witnesses, is a matter of dispute. Officers allege that when they began arresting Lujan on charges of pedestrian interference that Hays jumped on one officers back, even though witnesses who talked to reporters but later refused to testify said they never saw Hays tackle an officer.

The ACT officers then arrested Hays for assaulting an officer and pedestrian interference, an arrest that was also partially caught on a responding unit's dashcam, as seen above courtesy of The Stranger's coverage of the incident. That video shows an ACT officer repeatedly punching and kneeing Hays after he was under control and face-down on the ground even as the cruiser approached the scene, and then showed even more punches and knees hit Hayes afterward as well.

Hays was later found guilty of assaulting an officer when none of the witnesses testified but Lujan was found innocent of pedestrian interference, essentially meaning that the initial excuse to effect the brutal arrest of Hayes was unfounded.

The SPD OPA Auditor, Katrina Pflaumer, had this to say about her review of a case that had some remarkable similarities with the Hays arrest...
"In another case I agreed with a Sustained finding for excessive force where the back-up officer’s in-car video had recorded the interaction. The officer had been jumped on from the rear as he took control of the subject’s jay-walking friend. When the attacking young man was down and under control, the officer continued to use punches and knee strikes, which he claimed were necessary to control resistance. In the majority of cases, the in-car videos I have seen support the officers. In this case, however, the video was at 180-degree variance with the officer’s perceptions or recollections and a Sustained finding was recommended by OPA and confirmed by the Chief."

While this finding may have been noted in a previously released monthly report from the OPA, generally the description of events in those findings are intentionally left vague, which makes it difficult to determine which person's complaint that finding is related to, but the description the auditor supplied leaves few reasons to doubt as to who this case is referring to... but because the OPA lacks any transparency, it's impossible to determine for certain if they are talking about the Hays case.

One point to remember is the recent contract changes between the city and the police union states that any officers who are found to have lied during an internal investigation are to be fired. The auditor, in this observation about the case, appears to be hinting that she felt the officer in question lied by saying his testimony was a 180 degree contradiction of the video evidence... but we've not heard of any officers being fired from the SPD recently.

But, interestingly enough, the auditor's report doesn't end there as she describes an identical case involving the same officer and, if the case is the Hays case, a member of the rather infamous SPD ACT.

"I was troubled by a case with very similar circumstances three months later, involving the same officer, same kind of strikes delivered, same justification claimed, and same words spoken; but where no in-car recording was available. In that case a person with a felony warrant fled from the officers, was tackled, and was delivered knee strikes in the mid-section during handcuffing. Since the officers’ testimony was consistent and supportive of each other, the result was a finding of Exonerated. The Director and I agreed that, despite some similarities, there was no evidence available to sustain an allegation of excessive force against the employee."

As we covered shortly after the Hays incident, the SPD ACT is responsible for a large number of excessive force complaints due to their aggressive form of "proactive policing" methods. It should be interesting to see if a civil case does develop from this case, if it is the Hays case, as Hays reportedly told reporters that he was in talks with civil rights attorneys shortly after his arrest. Per departmental policy, there has been no word on how the officer was disciplined, or if any discipline had been given over the sustained finding at all.

UPDATE 12/16/08-13:48:
I just realized that this finding may have actually been reported in one of the monthly OPA reports back in October, but the description of the complaint was so vague that there would be no way to link the finding with the case. I covered that report here back in October too... Just struck me now that the two were likely linked.

But again, because of the way the OPA is set up to protect officers, even when they have been found to break the rules, it's impossible to tell if this is the Hays case for certain, even though the similarities are very striking.


Karl Mansoor said...

Did one or two officers exit their suburban and politely and respectfully approach the “offending” pedestrians? Did the police talk to them politely and start out with something like, “Excuse me sir, may I have a word with you please?” Did the officers follow that with a careful and calm explanation of what they observed and the potential danger it posed if indeed any at all?

Or did police start out with aggressive yelling and escalate the situation from there?

Somehow I suspect the officers did not choose the calm, polite, and respectful approach; too bad because it often works to keep things from getting out of hand.

Who wants to be yelled at from a vehicle or yelled at, at all? Police officers don’t like it when people yell at them. What makes some officers think that civilians like it when officers start out by yelling and threatening arrest? Who is supposed to be the highly trained professional?

Many law enforcement officers either have forgotten or were never taught that law enforcement officers are supposed to be first and foremost “peace officers.”

Packratt said...

Well, from what I understand from the case, the officers were allegedly pretty belligerent from the start.

But, this wasn't the first time the SPD ACT was criticized for roughing up people for minor infractions like jaywalking.

The elite ACT units have a long history of alleged abuses, almost as if they've become like the gangs they are supposed to keep in check.

Thanks for the comment, as always!

Michael Lujan said...

Well lets see, I remember the incident quite clearly. It started out with crossing the road(not jaywalking). While in the middle of the road the light turned, which is when the undercover car aggressively tried to run us over. This is the point in which I said, "What the fuck are you trying to kill us." Unbeknown to me they were this undercover goon squad. They then left the vehicle and immediately attacked me and Mark. There was no assault on the officers or even further provocation. I do agree with Karl. There is a right way and a wrong way to handle situations. They didn't even attempt to handle it. I suspect that we were victims of steroid or other drug abuse that the ACT was using.

Packratt said...

Thank you for clarifying what happened that night Michael, that would be in line with bystander statements made about what happened and would fit in the pattern of other claims that were made against the "Anti-Crime Teams" like the one that assaulted both of you that night.

Thanks for clearing things up, I really appreciate that!

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