In anticipation of today’s release by the City of Seattle’s Office of Police Accountability of its first batch of findings from complaints arising from this summer’s protests, OPA Director Andrew Myerberg graciously sat down with me yesterday for an interview. Here is the full interview, lightly edited for clarity.
Kevin Schofield: How do you feel that the investigations are going so far?
Andrew Myerberg: I think they’re going well. As you can imagine the cases, they kind of range in complexity. Using the pepper spray case for an example, it was an easier case in some respects to start to isolate the video, because there we had received all the complaints about Officer Campbell, just because it was posted all over social media. So we were able to isolate his video and then kind of expand from there and figure out who was on the line. The harder cases, again, as you can imagine are someone says, well, I was hit by a blast ball on 13th and Pine, no description, anonymous complainant, its kind of a needle in a haystack. How do we identify that person? How do we figure out where they were standing, what they were wearing? Those can be a very, very hard baseline for these cases. We’re looking at tens, if not close to 100 hours of video review per case, it just depends on what the response was and who was there.
Kevin Schofield: So you’ve got about a hundred cases right now, related to the protests. Can you break down approximately where they are across the different stages of investigation?
Andrew Myerberg: Sure. We have right now, as of today we have 118. So the cases that you’re seeing right now that are being wrapped up are the ones that were from the first week and a half of the protests, really up to the first two weeks of the protests. And even within that first kind of grouping of cases, we prioritize cases based on public exposure and public concern about the cases. So what we’re envisioning doing is we’re going to be rolling out cases probably every two weeks, we’ll be publishing around four to five findings that have been issued. And we’ll do that all the way up into the 180-day deadline. That’s our goal. And I think honestly, like we were a little bit overly optimistic about what we could do. I think my original goal was that I wanted to get them done in 90 days. It’s just purely because of volume and what we started to see and receive. It just was not feasible. This is still kind of way ahead of schedule in that we got it done around day 120. And as you know, Kevin, it’s 180 days that we can impose discipline.
Kevin Schofield: Scrolling through the list of closed cases this year and last year, the vast majority are closed as “not sustained.” Can you provide some insight as to why it turns out that way?
Andrew Myerberg: Yeah. So just so to be totally honest, we have backlogs of closing. So particularly for the sustained cases, because they end up going through the disciplinary process, we’re going to be closing a whole bunch of sustained cases all together. So the “not sustained” cases go through a simpler process in that they go from us to the chain of command. They look at them and then we get that back and close them, where the “sustains” go through a disciplinary process that delays them. So our cases probably this year, I would say in 2020, we’ll probably even have a higher “sustained” rate than we did in 2019.
Kevin Schofield: Can you guess what approximately it would be?
Andrew Myerberg: I’d say between 15 and 20% is what I would imagine the rate would be. I think at the end of the year, when we start to “pull out” our data for our annual report, that’s usually what it will come out to, but the reality is that even 20% would be a high “sustained” rate — not just for Seattle, but for nationally — would be a fairly high sustained rate. Generally it’s much lower than that. And I think it’s for a couple of reasons. First, I think it’s because a lot of the cases that we get would be easily disprovable by video.
So someone says, “you stopped me because of X reason.” And even if they legitimately believe that, we know based on the video that you were stopped because you had a… you know, you were identified as a suspect in a robbery, right? So those can be fairly easily disposed of. And I think as you know, with the way the force standard works, the Graham v. Connor standard, it is not particularly easy to find that an officer violated “reasonable, necessary, proportional” for use of force. Graham v. Connor, that’s the constitutional standard that governs, you know, wherein force is constitutional and that standard is mirrored in SPD policy.
So the factors we look at are: is the force reasonable, necessary, and proportional. And there’s been a lot of kind of debates and conversations about reasonableness, particularly because it’s a very deferential standard. It’s like, what did the officer think at that time, in that moment and would a reasonable officer had felt the same? So again, deferential standard is hard to prove, but the fact is that, you know, we just simply have a lot of cases where, and this is not a secret you know, the body worn video is all there. The body worn video just shows that either what’s alleged didn’t occur, or that it did occur and it was consistent with policy.
Kevin Schofield: So in general, just even outside the context of protests, can you characterize a little bit the kinds of contacts and complaints OPA typically receives and how that compares to the contacts and complaints that you received this summer specifically around the protests?
Andrew Myerberg: I would say in any given year we’re getting between probably around 1300 and 1500, what we call “contacts”. And that can be someone saying, “I was subjected to excessive force,” Or someone saying, “Hey, how do I get a police report?” All of those are contacts and we process them differently. So not all contacts will result in an investigation. But they go through an intake process where we’re saying, okay, what are we looking at? What is alleged? Who’s involved? Is it even SPD? And once we’ve made that determination, we say, okay, how are we going to classify it? It’s been unique with these protests that we’ve received in the span of two months, 18,000 contacts. So that’s incredibly unique. That is by far and away, and it will skew all of our reporting numbers, because we’ve never received even close to that much. So that’s been really the biggest challenge of all of these protest cases, is to say, okay, how do we go through 18,000 individual emails, writing up contacts, and then try to figure out who’s alleging what, who’s a direct witness, who’s not a direct witness. And that has taken us a substantial amount of time. We’re done we’re them, but that was really a huge hit for us.
Kevin Schofield: Your “sustained” findings to go SPD’s disciplinary committee for recommendation of a specific disciplinary action, then on to the Chief for final decision. That’s right?
Andrew Myerberg: Yep.
Kevin Schofield: Okay. What input and visibility do you have to those stages?
Andrew Myerberg: So I’m involved. I have visibility into all of them insofar as the discipline committee is: me, the officer’s direct chain of command, and then a lawyer, basically from the law department, who’s assigned to do this work. So at that discipline meeting, what we’re discussing is the files. So I’ve transmitted the file to them, they reviewed the file, and what we do is we talk about, okay, well, does everyone agree on the finding? Are we all having consensus there? And then with regard to discipline, we say, okay, what’s the conduct alleged, what’s the severity of the conduct alleged? What is the officer’s past disciplinary history? And what are the comparable cases, the other similar cases that exist out there that can form a basis. Because if we diverged substantially from those cases, we’re going to violate “just cause.” And then the case can be overturned when it goes to arbitration. So we do a lot of work, you know, before the discipline meeting, we get “comps.” So we get a list of all the different cases that are similar. And we use those as the barometers for how to gauge the discipline. And every case is unique, right? But we want to be as close to the comps as we possibly can in order to ensure that it’s upheld by an arbitrator.
Kevin Schofield: Let’s talk about the case where there’s an officer placing his knee on the neck of a suspect. Can you explain your findings in that case? It seems like a very nuanced finding. He put his knee on the suspect’s neck, but he was aiming for the head or shoulders. What’s the distinction between what’s allowed, between head, shoulders, neck, back.
Andrew Myerberg: Good question. So, so basically what you’ve seen in that video and in that case is “prone handcuffing.” So those individuals were being handcuffed on the ground by officers and the way that SPD trains the prone handcuff is they train you to put your knee on the back of the shoulders, towards the base of the neck. And the reason you do that is to control the body, because the person may be resistive. You don’t want them moving around. You want to be able to grab their arms and to keep them stable. What officers may do, they may put their knee on someone’s head, right? That is not a trained tactic, it’s not a prohibited tactic. I don’t like it particularly, and I think the department doesn’t like it because the head is circular.
So your knee can fall from the head to the neck. You can also cause lacerations and scrapes in the face. So it’s not preferred, but that in and of itself, as long as it’s justified and can be explained by the officer, would not violate policy. There is, though, a prohibition on using your knee to restrain someone’s movement on their neck, particularly. The way the policy is written, it’s like, an officer uses his knee or her knee or their knee with the intent to control movement. I think what we saw here, and we based this both on our observations of the video and what the officer said in the OPA interview — and again, we have to prove each element of this case, including intent — what we saw here was that the officer’s knee was on the neck. And we counted 13 seconds.
Particularly when there’s the readjustment, it seemed to be squarely on the neck. What the officer said in his interview was that given the frenetic situation, he didn’t know where his knee was. He thought his knee was on the shoulders and he still doesn’t believe necessarily that his knee was on the officer’s neck. And he pointed to how his knee was slanted. But from our perspective, we think the video is clear. We’re clear enough to reach a “preponderance of the evidence” standard, which is that 51%. What I couldn’t necessarily prove though, was that he put the knee on the neck with the intent to do so, with the intent to impair breathing, or to control the neck. So for me, the fact that I can’t prove intent doesn’t preclude me from finding that he violated policy. I think he did. He violated training and policy. What it would do is it would then mitigate the discipline down the road. If he’s saying it’s inadvertent, that’s fine, but you still can’t do it. It still violates at least for my mind, the necessary and proportional requirements of the policy.
Kevin Schofield: So in your mind, how does this compare and contrast to the George Floyd case?
Andrew Myerberg: It’s a good question. You know, I think for me, this is not the same, right? I mean for many reasons, I think first and foremost, in that case you have an officer who’s clearly “knee on the neck” for eight minutes and 46 seconds. There’s no exigency, right? He has his hands in his pocket. They did nothing right in that case. Right here, it’s 13 seconds. It is a chaotic situation. What you can’t see because the video is taken from the other angle is that they’re lined with protestors.
They’ve just been responding to looting that’s going on in a store. There’s people running around. They’re trying to get these people under control and then move to the next person to arrest. I think it’s a very different situation. And you know, I think clearly in my mind, the officer in the Floyd case, you know what you’re doing, and there is an intent to put your knee on the neck, you were controlling him via the knee on the neck. That would be sustained every day, under SPD policy. But I think this is too… I just don’t think, you know…I think it’s a different case and that the intent is not there. It’s a less egregious case.
Kevin Schofield: You mention frequently in the case summaries that the protests were very stressful, frustrating, and exhausting for police officers. How does that factor in your ultimate findings? It seems like it sort of weighs differently for complaints about professionalism versus use of force.
Andrew Myerberg: Yeah. So, so I look at them a little bit differently. So the way I look at for use of force, you are trained to, for example, for prone handcuffing, for use of force, you were trained for muscle memory, right? They want your muscle memory, it’s like a shooting or a case like that; they want you to respond in the appropriate time and the appropriate way in that crazy situation. That is the whole point of the training. It’s the “build in the muscle memory.” What we see though is, so for example that professionalism case, that is hour 16 of the shift.
Throughout that shift, maybe the officer’s been yelled at, things have been thrown at that officer. Profanity has been used to them, they’ve been told, “you should die.” It doesn’t excuse the comment that’s been made. However, I think it does mitigate it and it’s context that needs to be had, right? Officers, we hold them to a higher standard. Right? So the things that you could say to me today, Kevin, you know, go “f” yourself, no penalty. You’re allowed to say that. Officers are held to a higher standard. That being said, I think we recognize that they are human and they’re put it in a situation that is a very difficult situation, no matter which side of the aisle you’re on, it is difficult.
Kevin Schofield: So how does that factor into use of force?
Kevin Schofield: It doesn’t necessarily, and I think going towards the professionalism, I think a human reaction to something someone’s saying to you, your response to them is different for me than the use of force or a tactic. Like you, again, are trained exactly for that situation to respond with your force tactics in those stressful situations. So again, it could be a mitigating factor for discipline, but it doesn’t undo the discipline. It doesn’t undo the fact that you violated policy.
Kevin Schofield: You also mention several times in case summaries, that witnesses or sometimes the person filing a complaint declined to be interviewed by your staff. How much of an impediment is that to your investigations?
Andrew Myerberg: It depends. I mean, I think we regularly sustain findings where we don’t interview the complainants. It’s not a requirement to sustain the findings. I think generally in this day and age too, with all the video that we have, we can usually reach a conclusion one way or the other without the interview. We prefer to have the interview, like certainly I very much would have liked to have interviewed the father with regard to the pepper spray case, just to get the perspective of what did you see? What did you feel? And to get that context. And unfortunately all we had to rely upon was some of the statements they had made to media. So it’s not necessarily an impediment to reaching findings, but certainly it makes our investigation, I think, a better and more complete investigation if we can hear from all the parties that were impacted.
Kevin Schofield: What reasons do people typically give for declining to be interviewed?
Andrew Myerberg: Some just don’t respond to us. Others say they just don’t want anything to do with it. Some have lawyers and they say, “we’ll have our lawyer contact you.” And then the lawyer never responds. There’s all those reasons. One of the individuals who we spoke to in this case said that he didn’t feel safe. That’s much more rare.
Kevin Schofield: Do you think that’s justified when people raise those kinds of concerns?
Andrew Myerberg: Yeah. I think, I think from our perspective, I wouldn’t say anyone’s concerns are not justified. Whatever they feel is what they feel. I mean, I think we offer as much as we can, resource dependent, we offer people the opportunity to speak to a civilian, if they prefer to do that. We will go to them and meet them. They don’t have to come down to our office. We are pretty strict about retaliation; if there was any evidence that an officer then retaliated against somebody, that would be possibly a termination case. Like that just wouldn’t be tolerated. So, but again, I think these days for many people, there’s a lot of distrust of systems. So I don’t necessarily fault people for not wanting to cooperate, even though I think we have shown the ability to keep people’s information confidential to try to facilitate those conversations.
Kevin Schofield: Let’s talk about pepper spray. One of the issues that’s come up this summer as officials in court have debated SPD’s use of crowd control weapons, is the likelihood that when officers use pepper spray it could splash on the bystanders nearby, which looks like it’s what happened with this child. Your report suggests that’s potentially what happened with the child and that the officer using the pepper spray couldn’t see the child at the time. Black Lives Matter argued in court that SPD should only be allowed to use pepper spray when there’s no chance of splash on innocent bystanders. What do you think about that?
Andrew Myerberg: So I think in a perfect world, I agree. But that’s just not, it’s not a demonstration scenario. So in that case, I just, I don’t know of any… I mean, that’s much more applicable in a patrol situation than it would be for a demonstration situation, where generally in a patrol situation, you have one officer or three officers or whatever it is, and one subject. So you can direct it towards that one subject. Simply stated, almost in all cases you have a grouping of people, right? And multiple people are engaged in behavior that may warrant the use of pepper spray. It is very difficult to then, even if like in this case you direct your pepper spray towards one person, that person can move — that person’s not static. You know, the pepper spray can go other places.
One thing I tried to say in the [report] is I’m not saying that I like that outcome. I’m not even saying that… I’m not advocating for that outcome. What I’m saying is at this point, and we talked about this, I think in the past, in the context of the recommendations we made, I don’t really know what the other suite of options are. A blast ball would have been absolutely inappropriate in that situation, given how close everyone was. I guess they could theoretically have reached out and grabbed them and tried to bring the person through the line. But theoretically, that could have even caused more harm if you’re going hands on, potentially using strikes, you’re using a baton. They could have done nothing, which is obviously another option that exists. But there is a law enforcement need, I think, to prevent people from pushing through the line and they have the legal right to use force. So we’re always in this conundrum of what level of force is appropriate. And to be honest, Kevin, I don’t have the answer, to be bluntly honest. I think we’re all struggling with this, but I think nationally people are struggling with this.
Kevin Schofield: What is your message to people trying to understand how no police officer will be disciplined for the pepper spraying of a child?
Andrew Myerberg: Yeah. I think the message will be that, it is a difficult result, and I think I said this in the case summary, you know it’s one that I understand people will be upset about. It’s one, frankly, that, that feels upsetting to me too, because I think out of all this case there is a victim, right? The victim is that child. Clearly the victim. And that child was in a really difficult position being directly behind this woman who’s about to get pepper sprayed. And no one wants that outcome. I think when this is all done and these protests are finished, I think what people are going to remember is the picture of that child standing there crying with milk running down his face.
But again, I think maybe it would have been easier had I found, yes, there was some violation of policy, but my job is to look at the policies that are in place; is to say, you know, what was actually done? And not to look at the twenty second Twitter video, but to look at the totality of the evidence and to say, okay, what was the policy in place at that time? And did the officer’s actions violate that policy? Even if I don’t like the outcome, that’s my job. And what I would say to people is that the process can be difficult at times, and they may not like the outcome, but understand that we’re trying to do our best to apply the facts and the evidence to policy and make the most informed and objective and fair decision we can.
Kevin Schofield: Is your office sufficiently staffed and resourced for investigations you need to do? Are you comfortable that your office is going to be able to get all through this in the 180 day timeline?
Andrew Myerberg: We’ll get through all of them in the 180 day timeline. I mean, I think the reality is that we’re working really hard and we’re working, you know, people are really kind of working around the clock to get things done. We will get them done. But you know, it’s hard in every case, we have these inherent gluts where every case comes through me at the end to write it up, you know, cases go through our supervisors. Would it be great if we had more staff? Yeah, absolutely. But we’re in a budget crisis right now. So we have to kind of make do with what we have. Anne runs our public affairs team. We’ve taken people from her team that are mostly civilian and had them work on our investigations. It’s kind of been like an “all hands on deck” proposition, and we’ll be fine. But obviously as a manager, I do worry about burnout. I worry about people, you know, um, getting exhausted. Because I think people are exhausted.
Kevin Schofield: How do you think these findings are going to be received by the public?
Andrew Myerberg: You know, I think it’ll be much like all of the other findings we issue. Generally I think, unfortunately the way things exist now is that most people have probably already made up their mind. And there’s very little that I can put out there that’s going to change people’s minds. There are probably people that think no matter what, that pepper spraying was wrong, and they believe that the child was targeted, and nothing I am going to write is going to change that.
What I do hope is that people do read the findings and they read your article and they read other articles that are out there and understand how complex these situations are. That they’re human situations, that they’re often five seconds, six seconds of decisions that are being made. And that this is just one piece of a large puzzle. You know, some cases are going to be sustained, some cases they’re not going to be sustained. But, I don’t know, I think there’s going to be people on both sides. There’s so many people that will be angry at me from the department’s end about sustaining the “knee on the neck” case. They’ll say, how could you possibly do that?
Kevin Schofield: How would you like the findings to be received?
Andrew Myerberg: I would like people to receive them by evaluating them, by looking at the evidence and not jumping to conclusions and understanding… with all of this stuff its understanding the complexities of what’s going on out there. You’ve been to the protests. I know Omari has been to the protests. These are not simple incidents. Right? And frankly, no case that we look at is simple because it’s two humans interacting with each other. You know, I want people to understand though that, that we have a system here where, and I say this all the time, like we’re a really, really good imperfect system. Because there is no perfect system across the country. But you know, find one system that has OIG, OPA, CBC, all doing their things. And people could argue with the effectiveness, but we have good people here that are trying to do the right thing. And ultimately, I can’t kind of control how people receive that and how they perceive it. I just hope that people, even if they don’t like the outcome trust that we try to do our best and the outcome was objective and fair.