SPD: Policy, Procedure, and the Death of Charleena Lyles
It has been over a month since officers of the Seattle Police Department shot and killed Charleena Lyles, pregnant mother of four, in her home. Within a week, SPD released video, audio and photos surrounding the incident. In a step seen as unprecedented, they released transcripts of the interviews of the involved officers after they were questioned by members of the department’s Force Investigation Team, known as FIT.
FIT is a unit in the department charged with investigation all use of force by officers, which are broken into three categories; level one force, level two force, and level three force. An officer involved shooting is categorized as a level three use of force.
In releasing the transcripts, the department handed the public a level of access never experienced before. Many were left with more questions, than answers.
A few weeks ago, BOMBCo managing editor Sakara Remmu sat down with Brian Maxey of the Seattle Police Department to better understand some of the department’s policies and procedures eluded to in the transcripts.
The public face of the department is Chief O’Toole. For residents of Seattle grappling with the impacts of policing in their communities, the buck stops with her. It’s also fair to say the buck stops with Brian Maxey, too.
Mr. Maxey is the Chief Operating Officer for the department. In 2014 Chief O’Toole recruited Mr. Maxey to the department as internal legal counsel. From there he became just the second COO in the department’s history; he reports directly to Chief O’Toole and is responsible for overseeing all of the department’s resources. Mr. Maxey is a civilian, not a police officer. He is tasked with ensuring all of the moving parts within the department are working as required and for developing and implementing changes when they are not. He is encyclopedic in his knowledge of the procedures, policies and history surrounding the DOJ descent decree, FIT, Taser training, and much more.
The investigation into the death of Ms. Lyles is ongoing. Typically during the course of an investigation, public information is limited. Indeed, the department has provided little information since the first week of the shooting. Mr. Maxey explained that it is department policy to release information when an officer involved death happens; they did so after Ms. Lyles was killed.
The release of the transcripts of Officer Anderson and Officer McNew signaled a new level of transparency. Why were they released, given the investigation is ongoing?
The Seattle Police Department is no stranger to controversy regarding use of force or use of lethal force. The killing of Ms. Lyles brought national outrage, and residents across Seattle and beyond didn’t hesitate to organize, mobilize and protest.
Questions mounted. Accusations against the department gained traction. No one disputed that the death of Ms. Lyles was unacceptable. Yet, unanswered questions remained. How and why did a pregnant woman who called police for help, wind up shot to death while three of her children were home?
SPD is often criticized for their public statements about those who have been killed by police. It is a criticism the department is well aware of. They struggle to balance the facts, as available at the time, with the human impact in the wake of the use of lethal force.
As an example specific to Ms. Lyles, the department has received public disclosure requests for more than twenty incident reports prior to her death. What story do those reports tell? Are they relevant to what happened? Could their release be seen as disparaging the reputation or memory dead?
“With the Che Taylor case,” Mr. Maxey said referring to a separate, recent incident of use of lethal force by SPD, “we initially put out that he was an armed, career felon, and what he had been convicted of. In retrospect, what he had been convicted of wasn’t relevant.”
The question of why the transcripts were released was put to Mr. Maxey. He explained that, even with the release of audio, video, and pictures, the public didn’t have enough information to help fill in the gaps, to address the questions the public demanded answers to.
Mr. Maxey said, “There was so much community concern about this…how could it be that [Charleena Lyles] ends up getting shot and killed by the police? We felt that having the officers’ statements out there would help fill in some of those doubts and those gaps. It was meant to inform; this is what the officers said [when questioned by investigators]. We’re not going to paraphrase it.”
The transcripts reveal more than just what the officers said in their interviews. They are a window into SPD policies and procedures around training, policy, and the investigation process itself.
SPD Policy vs Criminal Investigation
One of the initial tasks of FIT, the Force Investigation Team, is to determine whether or not the actions of the officers are potentially criminal. This is not the same as an investigation into whether or not the officers acted within department policy in the use of force. If investigators determine the possibility of criminal behavior, a second set of investigators is brought in to investigate.
When officers are questioned by FIT, they are essentially forced, or compelled, to waive their right against self-incrimination.
The public is familiar with this: You have the right to remain silent. Anything you say, can and will be used against you…
This is literal; when questioned by police, one has the right to remain silent and say nothing. But when officers are being questioned for their actions while on duty, they cannot hold to this right. They have to answer the questions asked of them. As seen in both transcripts, the officers initially refused questioning, and are then compelled to participate in the interview (click on all images for full view):
If during such an interview, FIT uncovered criminality based on the officers answers or statements, those answers and statements could not be used in a criminal investigation or prosecution. In fact, it becomes much more difficult to pursue potential charges because the department or the prosecutor would have to prove they gained knowledge or evidence of criminality without the officers’ statements.
It is why FIT works to establish as many facts as possible as quickly as possible including potential criminality, before officers are questioned by FIT. In short, generally if officers incriminate themselves criminally during an FIT interview, their statements cannot be used to charge or prosecute them because they have essentially been forced to answer questions when they would otherwise have the right to remain silent.
The officers involved in the death of Ms. Lyles are not under criminal investigation. Their answers and statements in the FIT interview cannot be used to file charges against them.
Taser Training and Policy
The public has scrutinized the issue of the Taser in the death of Ms. Lyles. Media reporting has been inaccurate or inconsistent, as to whether or not police officers had less lethal options available. Through statements by the department and statements by the officers in the transcripts, Officer Anderson was Taser trained. Per policy, he should have had a department issued Taser on his belt or his vest. Officer McNew was aware Mr. Anderson was Taser trained, and SPD released audio of the officers before and during the incident. Mr. McNew can be heard yelling “Taser!” to Mr. Anderson, who responds that he does not have one. Mr. Anderson is questioned about his Taser during questioning by FIT:
As outlined in the department’s policy and procedures, once an officer is trained in the use of and issued a Taser, they are required to carry it. An officer cannot simply decide to stop carrying the department issued less-lethal weapon; Mr. Anderson suggests he was contemplating no longer carrying a Taser. Further, he did not notify the proper chain of command when, as he described in his interview, he stored the Taser in his locker because the battery was dead.
According to Mr. Maxey SPD recently decided to store Taser replacement parts such as batteries, at every precinct, rather than a single, central location. This suggests a replacement battery for Mr. Anderson’s Taser would have been readily available had he notified the proper personnel in his precinct that a replacement battery was needed.
Mr. Anderson (and subsequent media reports) stated in his interview with FIT that the Taser would not have been used even if one had been available. The greatest challenge to this is the words and actions of the most senior officer on scene at the time, Mr. McNew, who called for Mr. Anderson to use a Taser on Ms. Lyles. Many find it questionable for Mr. Anderson to assert as fact that a Taser would not have been used even if available, because a Taser was not in fact available. Many argue a Taser would have been used if available because the senior officer called for one, and Ms. Lyles’ death could have been avoided entirely, as Mr. McNew eludes in his statement to FIT was his desire and intention in calling for Mr. Anderson to use his Taser:
During the interview with BOMBCo, Mr. Maxey was asked if responding officers are assigned to incident calls based on Crisis Intervention Training (CIT); Mr. McNew was CIT trained. Mr. Maxey said yes, dispatchers can assign officers to respond to incidents based on CIT training.
Mr. Maxey was also asked if responding officers are assigned to incident calls based on Taser Training. Mr. Maxey said that officers who initially respond to an incident can request a Taser trained officer after evaluating the incident first-hand.
Mr. McNew, per his transcript, was clearly aware of Mr. Anderson’s Taser training and that he should have been carrying one. Likewise, Mr. Anderson was aware Mr. McNew had CIT training. Mr. Maxey was asked if either Mr. McNew or Mr. Anderson were dispatched to the call based on their respective CIT or Taser training; he stated they were not.
All officer involved deaths in King County are subject to mandatory inquest upon the completion of the internal investigation. For SPD, the average investigation into such incidents is 90 days, excluding holidays and weekends. If the investigation into the death of Ms. Lyles holds to that standard, SPD will be investigating until the end of October. At the completion of the investigation all findings will be sent to the King County Prosecutor’s Office who will review the information and evidence. The King County Prosecutor’s Office then notifies the King County Executive’s Office. From there, the Executive requests the Presiding District Court Judge schedule an inquest within 90 days, likely pushing the start of the mandatory inquest into the death of Ms. Lyles to January 2018.
Editor’s note: This is the second of three schedule reports by BOMBCo into the death of Charleena Lyles. To read additional coverage click here.
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