Few agencies complying with law requiring independent investigations in use of force cases
A statewide investigation found only 28 percent of law enforcement agencies are fully complying with a new law requiring independent investigations after an officer kills or injures someone.
Washington State Attorney General Bob Ferguson released a 40-page report Friday showing his office’s findings, which included several recommendations on how to clarify the law and offer better guidance to teams investigating deadly use of force by police.
The inquiry was launched in June after state officials found the Pierce County Sheriff’s Department violated Initiative 940 while looking into the March 3 death of Manuel Ellis, a Black man who died from lack of oxygen as Tacoma police restrained him.
Ferguson and Gov. Jay Inslee criticized the Sheriff’s Department for not immediately disclosing that an off-duty detective sergeant had briefly helped to restrain Ellis, which is considered a conflict of interest. The department also failed to designate a family liaison and appoint community members to participate in the investigation.
The Attorney General’s Office found 22 deadly use-of-force incidents across the state from Jan 6, 2020, to June 30, 2020, and sent out surveys to the investigating agencies to see how well they complied with I-940, now known as the Law Enforcement Training and Community Safety Act.
The questions were meant to gauge whether investigators kept the involved agency out of the criminal investigation, if they brought in two community representatives to oversee the process and whether they communicated with the victim’s family.
“These findings represent a snapshot of the first six months after the new rules became effective,” according to the report.
The AG’s Office collected 28 surveys on 18 investigations. Ten of the surveys were from community representatives, the other 18 were from investigators.
Only two investigating bodies, the Pierce County Sheriff’s Department and the Regional III Critical Incident Investigation Team, did not fill out surveys, according to the Attorney General’s Office.
Sheriff Ed Troyer said he did not fill out the survey on advice from the Prosecutor’s Office because it was “outside of the formal investigations being conducted by the State Patrol and the Attorney General’s Office” and the investigations weren’t yet complete when the department received the survey in July.
“The Pierce County Sheriff’s Department has fully cooperated with the formal investigations being conducted by the State Patrol and the Attorney General’s Office, and will continue to provide all information requested by the Office of the Attorney General in direct relation to its investigation,” Troyer said in a written statement.
The Regional III team offered the AG’s Office their investigative file in place of the survey, but the AG’s Office said it “would not have been able to accurately complete the survey with the investigative file alone.”
Out of the 18 use-of-force incidents, five investigations were in full compliance with the law.
Law enforcement agencies said they struggled with vague language in the law, the short time span between when the law passed and when it went into effect, limited guidance on how to implement new protocols and carrying out some requirements during the COVID-19 pandemic.
Here’s a summary on how agencies investigating use-of-force did:
▪ All 18 investigating teams kept the involved law enforcement agency out of the investigation, though one agency did allow somebody from the involved police department to sit in when the officer gave his statement about what happened.
▪ All 18 teams put up firewalls to prevent information on the investigation from being shared.
▪ Everybody gave control of the crime scene over to the investigating agency except in the Ellis case, because the Washington State Patrol did not take over the investigation for several months.
▪ Seven of the 18 teams included two community representatives. A dozen of the teams used at least one community representative.
▪ Eleven investigating teams assigned a family liaison.
▪ Thirteen of the 18 investigating teams released weekly updates on the case to the public.
▪ All agencies complied with the rule to not release criminal background on the person against whom force was used. In one case, however, the agency talked about how the person had a felony warrant but did so because it was the reason police stopped him.
“Most instances of non-compliance stemmed from a genuine misunderstanding about the rules’ requirements,” according to Ferguson’s report.
In Pierce County, four surveys were sent out in use-of-force incidents.
The State Patrol fully complied with the law when looking into the death of Ellis, the AG’s Office said.
Said Joquin was a Black man fatally shot May 1, 2020, by a Lakewood officer during a traffic stop. State officials found the Cooperative Cities Crime Response Unit, which investigated the death, did not comply in five areas. They only used one community representative, that person did not participate in case briefings or review equipment from the agency, team members did not sign confidentiality releases and the team did not give notice to Joquin’s family or the community representative before releasing information about the case.
Tacoma police filled out surveys on two cases, an unidentified shooting from March and the April 7 fatal shooting of Brandon Stokes by a Pierce County sheriff’s deputy.
In both cases, they failed to comply with 11 rules, mostly dealing with transparency.
The Tacoma team did not use community representatives, did not provide weekly updates on the case, did not assign a family liaison and did not have investigators sign confidentiality agreements, among other things, according to the Attorney General’s Office.
Interim Tacoma Police Chief Mike Ake said he appreciated the opportunity to check in with state officials on their compliance with I-940.
“Based on the findings of the Attorney General’s Office review, we have worked diligently with our regional and labor partners and now are in compliance with the independent investigation requirements of I-940,” Ake said.
After reviewing how well investigators have complied with the law requiring independent investigations, Ferguson recommended that the Legislature fund oversight by an independent agency “for independent, transparent investigations into the use of deadly force by law enforcement.”
He also noted that many investigating teams have improved their practices since his office’s inquiry into the use-of-force investigations.
In a Dec. 21 letter to Sue Rahr, the executive director of the Criminal Justice Training Commission, Ferguson suggested making seven clarifications to LETSCA to help investigators better understand and follow the law.
Among the clarifications sought were how community representatives can view the investigate file without law enforcement providing copies, a consistent process for choosing community representatives, whether an internal affairs officer from the involved agency can be in the room when the officer who used force is being interviewed, and what information can be shared with the involved agency, if any.
This story was originally published February 27, 2021 at 5:00 AM.
