In the past 10 years, officers from Pierce County law enforcement agencies have killed 36 people.
All were fatally shot after tense confrontations. Some were in cities, some in the county’s unincorporated suburbs and outskirts. All but three of the people shot were men. Most (27) were white. Four were African American.
No involved officers were charged with crimes in connection with the incidents. All the shootings were deemed justified under state law, after multiple independent reviews and formal findings from Pierce County prosecutors present and past.
On its face, the tally is a clean score: 36-0 – every single shooting, every single fatality, justified and not a crime, according to public records.
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Is it fair? Is it right? Is it legal?
Events in Ferguson, Missouri, have heightened public awareness of fatal shootings involving law enforcement officers. On Aug. 9, a Ferguson police officer fatally shot an unarmed teenager under disputed circumstances.
Two weeks of unrest have followed, and federal authorities are investigating the case.
No such controversy rages in Tacoma and Pierce County, but law enforcement leaders say they recognize the public’s concern. They say reviews of fatal shootings are independent, conducted without fear or favor, measured against state law and department policies governing use of force.
“There are no good shootings,” Sheriff Paul Pastor said. “It’s not a good outcome when the guy’s dead. It’s something to mourn. It’s something where we need to ask, could we have done this better? We should always ask, can we do this better?”
Using public records, The News Tribune gathered documents of all officer-involved fatal shootings over the past decade. Statistically, the incidents represent a sliver of county law enforcement activity – 36 incidents against a backdrop of more than 100,000 arrests that ended without any violence at all.
Some of the people shot, but not all, were drunk or high. Some were mentally ill. Some, but not all, fired guns at officers during the incidents, according to official records. One shooting left a sheriff’s deputy mortally wounded.
State law requires Pierce County Prosecutor Mark Lindquist to review all such incidents. In the 36 cases, he and his predecessor, Gerry Horne, concluded that officers acted in accordance with state laws governing justifiable homicide by law enforcement officers.
“We are doing it right,” Lindquist said. “As prosecutors, our allegiance is to the law and to the community. We are acutely aware of the danger posed to our community by a bad cop or a bad shooting.
“Therefore, we vigilantly scrutinize officer-involved shootings and justly apply the law. I am confident we have done that in every Pierce County fatality.”
Every fatal shooting involving a law enforcement officer triggers three independent inquiries: by the involved law enforcement agency, the prosecutor’s office and the county medical examiner. Each agency employs its own investigators.
“I don’t get to decide what the prosecutor does,” Pastor said. “He doesn’t get to decide what I do. Same thing with the medical examiner.”
The medical examiner determines cause and manner of death. The review would indicate whether the individual was shot in the back, for instance. Law enforcement agencies weigh the circumstances of each incident against internal policies regarding use of force. The prosecutor assesses the incident against the backdrop of criminal law.
At the Tacoma Police Department, the review starts with the officer’s supervisor, who immediately reports the incident to commanders. A computer file opens, and every entry is tracked.
The process is similar in the sheriff’s office. A team of investigators familiar with homicides begins the inquiry. Investigators interview civilian witnesses and officers who responded to the incident. A forensic team gathers physical evidence from the site. The names of the involved officers are released to the public within 72 hours.
Police conduct such inquiries in every incident involving force. It doesn’t matter if it didn’t end in a fatality. It doesn’t matter if no weapon was fired. Even the threat of force is reported.
“Obviously we keep a sharp eye on every use-of-force situation that occurs from the smallest on up,” Tacoma police Assistant Chief Pete Cribbin said. “If someone intended to use deadly force, it triggers this process.”
In all fatal incidents, the officer is placed on administrative leave immediately. The officer’s weapon is confiscated. The officer faces an after-incident regimen that includes a visit with a psychologist, and a review of policies, procedures and training.
All reports and evidence are gathered into a thick file shared with police commanders, up to and including Tacoma Chief Don Ramsdell. Those files are shared with the prosecutor’s office and Tacoma’s Deadly Force Review Board, a panel that includes Cribbin, two police commanders, two police union members and two citizens.
The board reviews the evidence and determines whether the officer’s use of force comported with department policy. Cribbin doesn’t get a vote. The other six members do, and they’re not always unanimous, Cribbin said.
Recommendations from the board and the investigators go to the chief, who makes the final decision – was the officer’s use of force reasonable and justified?
If the answer is no, the consequence can be discipline, ranging from additional training up to termination.
The process is similar at the sheriff’s department and other police agencies. At the sheriff’s office, the review panel is known as the Board of Professional Practices. Until recently, it has included a non-voting citizen observer. Pastor said he is seeking a new representative to fill the empty position.
THE PROSECUTOR’S REVIEW
It’s possible to violate police agency policy without committing a crime. The News Tribune’s analysis focused on criminal reviews, not internal police assessments. The criminal aspect is the prosecutor’s responsibility.
“The law enforcement agency reviews and analyzes and determines whether the officer has comported with the agency’s rules,” Lindquist said. “I review to determine whether the shooting was justifiable under state law.”
The criminal standard reviewed by prosecutors is a high bar. It stems from the state law governing justifiable homicide by a police officer.
The statute, RCW 9A.16.040, states, in part, that, “the peace officer must have probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others.”
The law goes on to define that threat:
“(a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or
“(b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm.
“Under these circumstances deadly force may also be used if necessary to prevent escape from the officer, where, if feasible, some warning is given.”
A separate element of the law raises the bar of criminal liability even higher. An officer has to act with malice to be found criminally culpable. In that sense, the law draws a distinction between police officers and civilians.
“Citizens have the luxury of sometimes being able to walk away from confrontation,” Lindquist said. “Law enforcement officers do not have that luxury.”
The malice factor probably saved Seattle police officer Ian Birk from a criminal charge after an infamous incident.
In 2010, Birk fatally shot First Nations woodcarver John T. Williams on a Seattle street. The incident is one among several that triggered a probe by the U.S. Department of Justice regarding excessive use of force and other practices that raise civil rights concerns.
Seattle police leaders found the Williams shooting was unjustified. Birk resigned his position. However, he wasn’t charged with a crime. King County Prosecutor Dan Satterberg cited the malice factor in his decision.
In Pierce County, Lindquist applies the same standard. If he’s not satisfied with the information in front of him, his office can ask for additional inquiry.
“I sit down with top staff in our office,” he said. “On a more difficult call we probably have more staff come in. If we find the investigation is lacking, we make requests for more information. This protocol goes back to the ’80s.”
Lindquist notes that the criminal standard is higher than the civil standard. If victims’ families believe a shooting investigation led to the wrong finding, they can sue and seek relief in court. He could recall only one example in the past decade of a fatal incident that led to such a suit – in 2005. The plaintiffs lost.
IS FEAR ENOUGH?
Is an officer’s claim of feeling threatened the only measure that matters when assessing the use of deadly force?
Tacoma police commanders say no, but they also say every incident is different, judged according to specific circumstances, including the nature of the original call officers respond to and the training they’ve received.
“If it’s a homicide or it’s a jaywalking, that’s a significant difference on how it’s going to be viewed after the fact,” Cribbin said. “If it’s something very, very minor, the amount of force you can use is very, very limited.”
Pastor told a story of a domestic violence incident one of his deputies handled recently after a call to an apartment complex.
“Mom and 10-year-old run out of the place, then boyfriend runs out of the place,” Pastor said. “Our guy rolls into the place. Boyfriend fires weapon. Tacoma PD comes up to back us. Tacoma has an angle on him, our guy has an angle on him: drop the gun, drop the gun, drop the gun – he drops the gun. That didn’t make the news.”
The deputy didn’t fire a shot, but Pastor relieved him of duty on the spot in keeping with standard procedure.
“He was kind of rattled,” Pastor said. “I said three things: I’m glad you’re alive, I believe your actions helped save two people and this is the best outcome. The two people who were in danger are safe, and the bad guy is in jail without anybody being hurt. That’s the ideal outcome.”
OVER THE LINE
An ongoing lawsuit in U.S. District Court opens a window on use-of-force policies and what can happen when an officer is flagged by his superiors as using more force than his colleagues.
In August 2010, Federal Way police officer Matthew Leitgeb shot and killed David Young after Young fled from him in a stolen truck. Leitbeg and another officer pursued Young, and one of them eventually used his patrol car to nudge the pickup off the road.
Young refused commands to get out of the truck. Leitgeb fired two volleys of gunshots. Young was shot in the head and died.
Leitgeb contended Young revved the pickup’s engine and began backing toward him. Leitgeb later said he feared Young would run him down. The second officer did not fire his weapon.
A King County inquest jury found in 2011 that Leitgeb reasonably feared for his life when he fired the first volley but split as to whether the second volley was necessary.
His parents, Marie and Darrel Young, filed a wrongful death complaint in 2012.
Evidence introduced in the lawsuit shows that Federal Way police brass were concerned about Leitgeb’s history of using force on the job.
A 2006 internal memo between police commanders reported “a pattern of force used by two officers that is outside the norm.” Leitgeb was one of those officers. Records show he applied force six times, including using a Taser four times, in a six-month period.
“The primary concern in this officer’s case is that he has received prior counseling in the use of specific patrol tactics that may have contributed to his reliance on force,” wrote Melanie McAllester, administrative commander.
Another commander had recommended Leitgeb receive remedial training and counseling, but that never happened, McAllester wrote.
A department “early warning system” which tracks use of force by Federal Way officers flagged Leitgeb again in 2009 and 2010, records show.
In a May 2010 memo, Lt. John Stieben wrote that Leitgeb had used documented force nine times in the previous 12 months, including one “deployment” of his 40mm handgun and another where he shot at a vicious dog.
“A preliminary check of my records shows Officer Leitgeb has 30 documented uses of force since January of 2006,” Stieben wrote. “This exceeds the uses of force by our K-9 teams, and it is significantly higher than other patrol officers during this time. The second highest use of force recorded since 2006 is 17 and the third highest total is 13.”
From 2006 to September 2010, Leitgeb was responsible for 6.4 percent of the department’s 411 applications of force, Stieben said.
Police supervisors talked to Leitgeb several times about his penchant to use force, but Leitgeb testified during a 2013 deposition that he received no formal counseling or remedial training. None of his applications of force was deemed unjustified.
Attorneys representing the city wrote in court pleadings last year that Leitgeb has received 1,761 hours of advanced officer training in his career, including 208 hours on use of force.
They conceded he’s used force on several occasions but argued “there is no evidence that Officer Leitgeb’s use of force was excessive or amounted to any constitutional violations.”
An expert witness hired by the Youngs’ attorneys filed with the court a report regarding appropriate uses of force in general and in the Leitgeb case specifically.
Said D.P. Van Blaricom, a former Bellevue police chief with more than 50 years of law enforcement experience: “From a police practices perspective, the fundamental issues in any use of force are, 1) Was force reasonably necessary under the totality of circumstances? 2) If force was reasonably necessary, was the amount or degree of force used reasonable under the totality of the circumstances?”
Factors involved in making those decisions include the severity of the crime being investigated, whether a person poses an “immediate threat” to the safety of officers or others and whether the person is “actively resisting or attempting to flee.”
“Allowance must be made for the fact that officers are often forced to make split-second judgments, about the amount of force that is necessary in a particular situation, in circumstances that are tense, uncertain and rapidly evolving,” Van Blaricom said.
The lawsuit is still active.
SHOOT TO WOUND?
Firing a weapon is the last resort, according to use-of-force policies adopted by Tacoma police. They are intended to follow federal guidelines as well as accreditation standards developed by the Commission on Accreditation for Law Enforcement. The department reviews those policies every year.
The first level of force is verbal – a simple command to stop. The next level is physical. After that, officers have tools ranging from pepper spray, batons and stun guns. Guns sit at the top of the pyramid.
Officers are trained on every step, sometimes in reality-based scenarios involving actors and non-lethal rounds. Commanders review their actions on video.
“People get this idea that we go to training and that everything we do is just based on pointing a gun and shooting,” said Lt. Ed Wade, who oversees the department’s internal affairs section. “That’s not the case.”
If a situation escalates to a level that requires shooting, officers are trained to aim at center mass – the idea of aiming at an arm or a leg isn’t realistic.
“Out on the (firing) range, most officers can hit a silhouette,” Wade said. “But when that silhouette is moving, it’s ducking, it’s bobbing and weaving, it’s coming right at you – there’s a lot of variables. We don’t shoot to kill, we shoot to stop.”
Pastor said popular culture feeds misconceptions about violence and human reactions.
“In the real world, violence is chaotic – it’s not choreographed,” he said. “In the real world, the person you think you can take knocks you on your ass. You’re lucky in the situation if your pants are dry and your hands aren’t shaking.
“It eats a piece of your soul to do this – it damages you to take a life.”
Staff writers Adam Lynn, Alexis Krell and Stacia Glenn contributed to this report.