Seattle journalist faces complex accountability process that appears to show SPD out of compliance with Consent Decree

 by Carolyn Bick with additional reporting by Jessie McKenna 

  EDITOR'S NOTE: The following article was first published on the South Seattle Emerald website on 9/16/20 and is reprinted here with permission.]

Seattle Gay News journalist Renee Raketty was sitting on a narrow set of metal steps and trying to catch her breath when the blast ball an officer allegedly threw beneath her exploded. Hours later, still surprised and disoriented, Raketty played the video over and over again, because she still couldn't believe what had happened. But the permanent loss of hearing in her right ear is all too real.

In the course of reporting Raketty's story, the Emerald has discovered that SPD appears to be out of compliance with the Consent Decree. An officer's alleged actions caused Raketty to permanently lose her hearing, which is "a significant permanent loss or impairment of the function of any bodily part or organ." It would appear that an injury of this severity would be classified as a Type III use of force, according to the SPD manual and the Consent Decree mandates that all Type III uses of force be reviewed by SPD's Force Review Board (FRB). But according to officials with the OPA and SPD, this case will not be reviewed by the FRB, as there does not appear to be any mechanism in practice within existing policy with which to do so.

Taken July 25, the 22-second video starts with a zoomed-in shot of the backs of Seattle Police Department (SPD) officers, whose attention is fixed on a crowd of protestors and some legal observers in the street along the southeast side of Cal Anderson Park on Capitol Hill. In the background, Raketty — who took the video and said she was wearing a press pass at the time — is coughing, an effect of the chemical irritants she had inhaled from officers' earlier use of them on protestors, she later told the Emerald.

A second or two after Raketty zooms out on the scene before her, a bicycle officer can be seen walking a bike towards the bottom left-hand corner of the video. The officer parks the bike in the street by some other officers, turns, and walks toward Raketty. At first, he's looking forward, but as he gets closer to Raketty, he looks to his left, toward where the protestors' and legal observers' attention is fixed on the line of officers. Then, without warning — and still looking toward his left — the officer tosses a round object that Raketty believes was a blast ball. The object lands, Raketty said, beneath the metal steps where she was sitting.

Raketty's Video and Account Indicate Not Only That the Officer Did Not Follow Procedure, His Behavior Could Be Misconduct, or Even Criminal Assault, Her Lawyer Says

Blast balls and their close relatives, stun grenades (or "flash bangs/flash grenades"), are among a category of weapons used by police called "less-lethal." This category also includes batons, pepper spray, and more. Both blast balls and flash bangs emit an explosive sound and a bright light — the former can also contain chemical irritants — and are typically used by police, along with other "less-lethal" devices, for what they call "crowd control."

ypically used by police, along with other "less-lethal" devices, for what they call "crowd control." blast balls may be authorized for use "to disperse a crowd if an immediate life safety emergency exists that requires this action be taken ..." An "immediate life safety emergency" is defined in the manual as an "unplanned, dynamic situation where immediate police action is necessary to protect the officers' and/or the public's safety."

But Raketty was sitting away from the crowd, she said, well behind the police line, alone. In an earlier part of Raketty's video, which the Emerald has included below, the officer appears in the frame when she zooms out, and he's in the middle of the street paying her no attention, which suggests that he and Raketty had not immediately prior to this been engaged in any sort of physical altercation that would have justified the officer throwing a blast ball towards her. However, even if there had been such an altercation, nowhere in the SPD manual does it explicitly say that officers may throw blast balls at people. The Emerald reported in June that a young woman was critically injured after officers threw a flash bang that hit her in the chest and then allegedly threw flash bangs into the tent in which street medics were treating her.

Readers can find this video on Renee Raketty's Facebook page.

"If a cop is just walking down the street, hits [a citizen] with a baton, and keeps walking, that is a criminal assault," said Raketty's lawyer Sarah Lippek, of Cedar Law. "It's not just outside policy, it's flat-out assault. [The officer in the video] happens to be wearing a uniform, but he's obviously not serving any law enforcement purpose when he assaults her."

Raketty said she stopped filming just before the ball exploded, but she doesn't need a video to remind her of what happened. Even though she doesn't remember the explosion itself, she does remember the disorientation. The stairway she said she was sitting on is attached to a two-story brick building adjacent to a small parking lot surrounded by buildings. Her left knee still hurts from where she twisted it, in an effort to turn away from the explosion. She suffered what her doctor believes is likely permanent hearing loss in her right ear. And now, whenever she sees a patrol car or hears a police siren, something inside her freezes.

The officer did not request medical attention for her either, Raketty said, which would appear to run counter to the Crowd Management [http://www.seattle.gov/police-manual/title-14—emergency-operations/14090—crowd-management] section of the SPD manual. The manual states that, when "feasible," officers "will request medical response or assistance for subjects who appear to have been injured by a blast ball." Raketty believes it should have been obvious that she could benefit from medical attention, as the blast ball was allegedly thrown directly underneath where she was sitting. Based on where Raketty was sitting, it appears she would have been able to receive medical attention unimpeded.

Raketty Filed a Complaint With the Office of Police Accountability — Lippek's Diligence Appears to Reveal SPD Policy Violations

Raketty filed a complaint with the Office of Police Accountability (OPA) about the incident, but she and her lawyer must now navigate a complex SPD accountability process. Lippek and her client want to ensure that all departments responsible for police accountability are activated — that Raketty's case is investigated to the fullest extent possible — but despite Lippek working furiously to untangle the bureaucratic process, it's far from clear to them how to make sure that happens, or how much of it is in their control. However, Lippek believes that SPD is skirting their own internal accountability process and in doing so, the City appears to be out of compliance with the Consent Decree.

The Consent Decree is an agreement between the City of Seattle and Department of Justice, established after the DOJ investigated SPD in 2012 and found a pattern of excessive use of force as well as SPD policies and practices that could result in biased policing of People of Color.

The OPA, the Professional Standards Bureau, and Their Respective Roles

The OPA is a department of SPD administratively, but physically and operationally it is an entirely separate police accountability office. The OPA is led by a civilian director and supervisors. OPA investigations are led by SPD sergeants and civilian investigators. The OPA is one part of a three-pronged police system established in 2017 that provides accountability oversight and also includes the Office of the Inspector General for Public Safety (OIG) [http://www.seattle.gov/oig] and the Community Police Commission.

https://www.seattle.gov/community-police-commission

The Office of Police Accountability essentially exists to ensure civilian oversight in SPD investigations of complaints against officers and/or the department and instances of potential misconduct, policy violations, or other issues of SPD accountability that the OPA becomes aware of. The OPA conducts investigations and, when the office deems it appropriate, reports findings to the chief of police that can include recommendations for discipline and/or policy changes. The onus is then on the chief to determine the appropriate action. It should be noted that the chief is not required to follow OPA recommendations.

But there is also a lesser-known police accountability process within SPD's chain of command. It operates under the umbrella of what's called the Professional Standards Bureau and is made up of three divisions — the Force Review Unit (FRU), Force Investigation Team (FIT), and Force Review Board (FRB).

The Force Review Unit reviews all use-of-force reports, as reported by SPD officers and reported up a chain of command that varies depending on the severity of the use of force. The use-of-force classifications that must be reported are Type I, Type II, and Type III. The classification of each use-of-force incident determines when an investigation by the Force Investigation Team is appropriate. The Force Review Board reviews the findings of FIT investigations into specified Type II uses of force and all Type III uses of force, and, when deemed necessary, makes recommendations for policy and other changes.

While the OPA and the Force Review Board are both responsible for reviewing incidents of use of force and making recommendations to SPD to ensure police accountability, they are separate entities with unique processes. One major difference is that the OPA has authority to investigate the FIT, FRU, and FRB and their processes.

In her attempts to activate all relevant agencies to ensure a thorough investigation, justice for her client, and a comprehensive police accountability process, Lippek found herself trying to untangle a complicated official relationship between the OPA and SPD's own FIT, FRU, and FRB and noticed that SPD accountability policy appeared to be at odds with SPD accountability in practice.

Lippek Says Raketty Was Subject to Type III Use of Force and Pushed the OPA to Refer Raketty's Case to FIT — But OPA Says They Don't Do That

Raketty said that she and Lippek told OPA civilian investigator Chelsea Whittler what the officer had apparently done and described Raketty's subsequent injuries. In addition to the OPA investigation, Lippek requested their case be referred to FIT for investigation, per SPD policy for the type of use of force allegedly used on Raketty. Whittler assured them, both Raketty and Lippek said, that she would talk with OPA Deputy Dir. Mark Grba about a referral. But OPA declined to refer the case, and initially gave Lippek and her client no reason why, despite their request for an explanation.

In a Sept. 7 email response to Lippek, who had inquired to OPA Dir. Andrew Myerberg about the accountability process with regard to use-of-force incidents being investigated by FIT and reviewed by the FRB, Myerberg said that "OPA does not refer cases to FIT and this is not contemplated or required by SPD policy. OPA also does not opine on which cases are reviewed by the FRB."

Again, in Raketty's case the officer's apparent action appears to be what the SPD manual would classify as "Type III" use of force, defined as "[f]orce that causes or is reasonably expected to cause, great bodily harm

https://app.leg.wa.gov/rcw/default.aspx?cite=9A.04.110

, substantial bodily harm, loss of consciousness, or death." Because Raketty suffered permanent hearing loss in her right ear from the blast ball she said was thrown at her, the resultant injury seems to fit what the manual would classify as "great bodily harm" — "[c]auses a significant permanent loss or impairment of the function of any bodily part or organ."

Per the Consent Decree and SPD Policy, "All Type III's" Are Reviewed by the FRB — but if OPA Does Not Refer Cases, Then That May Not Be Happening

According to the SPD manual in all cases of officer use of force during crowd management, officers are required to document use-of-force instances along with justification. Those reports are delivered to the FRU for review and investigation by FIT, if need be. "All Type III" and "selected Type II" use-of-force incidents are sent to the Force Investigation Team (FIT). After completing an up-to-30-day investigation, FIT presents findings to the Force Review Board (FRB) which then makes "official recommendations regarding policy, training, or practices that need to be addressed." The Professional Standards Bureau's website states that the recommendations are then "routed to the appropriate section" and "tracked to ensure that the needed changes are institutionalized."

While it is unknown at this time if the officer who allegedly threw the blast ball at Raketty reported the use of force, or if he did, how he framed the incident within his report, it is all but certain the incident was not reported as a Type III — as according to Raketty, the officer did not interact with her beyond throwing the blast ball, so he would not be aware that she suffered injury, including damage to her hearing. Because Raketty said no one at SPD followed up with her after the fact, they would not have known her hearing loss was permanent.

If the OPA does not refer the case to the FIT or FRB, it appears Raketty's case will bypass SPD's internal process for reviewing an instance of a Type III use of force. As such, SPD will circumvent their own policy with regard to use-of-force record keeping, review, investigation, and internal policy and training review and recommendations, as made by the FRB — and in doing so, SPD would then appear to be out of compliance with the Consent Decree.

But according to OPA Director Andrew Myerberg and SPD's Chief Legal Officer Rebecca Boatright, OPA and SPD are following standard procedures for use-of-force complaints under OPA jurisdiction — including in Raketty's case — despite the fact that the standard procedures as they've outlined them are not aligned with SPD policy as it reads and appear not to be in compliance with the Consent Decree. An SPD Disciplinary Process Roadmap

https://www.seattle.gov/Documents/Departments/
OIG/Policy/DiscProcess/SPDdisciplinaryprocessAll.pdf

prepared by the OIG in 2019, provides a subway map for the current disciplinary process in practice.

OPA Dir. Myerberg and SPD Chief Legal Officer Boatright On Current Standard Procedures Relating to Use-of-Force Accountability

According to OPA Dir. Myerberg, the OPA does not refer cases to FRU, FIT, or FRB — even in cases where the OPA might identify a potential Type III use-of-force case of which SPD chain of command might not be aware. In a phone call with the Emerald, Boatright confirmed Myerberg's assertion. When asked how a Type III use of force reported in a complaint to the OPA but not otherwise reported to the FRU or FIT would get in front of the FRB for review, as mandated by the Consent Decree — and clearly stated in the SPD manual — Boatright responded, "It doesn't."

"The OPA determination stands on its own," Boatright said, referring to the findings of an OPA investigation into a complaint.

However, this would appear to run counter to what the Consent Decree mandates. The Consent Decree appears to state without exception that all Type III uses of force must go in front of the FRB, regardless of whether SPD awareness of the incident originates within chain of command or within the OPA and regardless of whether the OPA takes charge at any point of a Type III use-of-force investigation. And, as already established, SPD policy mandates this as well.

"There are situations, however, where OPA may become aware of force via a complaint that rises to the level of Type 3 force but was not investigated by FIT or reviewed by FRB," Myerberg also said in his Sept. 7 email to Lippek. "This is usually because the force was either not reported or under-reported. In these scenarios, OPA investigates the force and the failure to properly report as it constitutes misconduct, but OPA does not make a FIT referral after the fact."

In other words, in these cases, OPA would still not share the information about the Type III use of force with FIT, and the incident would not end up in front of the FRB for review.

Lippek said she would argue that this then defeats a large part of the FRB's purpose, as the board exists as a result of the Consent Decree, which was created to address accountability issues within SPD.

The FRU

https://www.seattle.gov/police/about-us/
professional-standards-bureau#forcereviewunit

section on the Professional Standards Bureau web page seems to support Lippek's opinion on the FRB's purpose, stating that board meetings "are an important step in the process as they provide information that helps the organization identify potential problems, either with individual officers and/or internal process that need to be addressed."

"FRB is very clearly required to ... review all Type IIIs," said Lippek, "But if OPA ... are the only part of SPD that knows about this number of Type III uses of force, and they are not referring to FRB, then FRB is not reviewing [all] of Type III uses of force."

When asked if there is any exception in the Consent Decree that would exempt a Type III use of force from review by the FRB, Boatright's response was not specific. She said that there is no policy that exempts a FIT investigation from going through review by the FRB. She said that if FIT investigators are called to a use-of-force scene, the OPA director is also called to that same scene. It is up to the OPA director whether to open an investigation. If he does, the FIT investigation and the OPA investigation will run parallel to each other, and neither will stop by virtue of the other one's existence. However, if FIT is not involved in a use-of-force investigation and the OPA does not refer the case back to FIT, the FRU, or the FRB, it would seem that the case will not end up in front of the FRB.

On page 37 of the Consent Decree, it states that the Use of Force Committee — which Boatright said was renamed the FRB — "will conduct timely, comprehensive, and reliable reviews of all Type II and Type III uses of force." There are no caveats to this statement, and nothing readily apparent in the Consent Decree that prohibits the OPA from sending a use-of-force case to the Professional Standards Bureau for an internal investigation and/or an FRB review.

Boatright explained that the OPA has authority to identify when the FIT has not followed appropriate procedure. She said this would then be dealt with through a "disciplinary process and/or management action" that would result in SPD reviewing its manuals, policy, and training to update them in accordance with what the OPA or OIG recommends.

However, that would not then trigger that particular case to go in front of the FRB, because "OPA will have already made the accountability determinations, with respect to that particular incident," Boatright said.

FIT Declined to Investigate Raketty's Case, According to the OPA Director

Over email, Myerberg confirmed to the Emerald what Lippek was not able to initially confirm with him: that Raketty's case was not being investigated by FIT and therefore would not be reviewed by the FRB. Myerberg told the Emerald that FIT investigators declined to investigate Raketty's case but did not provide any details as to why.

The Emerald reached out via email and phone to FIT officers Capt. Colin Carpenter and Sgt. Wes Collier to ask whether FIT will be investigating Raketty's case but, as of this writing, has not received a response from either of them. Also as of this writing, Raketty has not received any word from SPD that FIT will be conducting an investigation into the incident, and neither has Lippek, who has also reached out to these same officers to ask about a FIT investigation on Raketty's behalf. The Emerald will update this story if more information becomes available.

Lippek said that she may have as many as a dozen clients who lost hearing in a similar manner to Raketty, which would mean that it's not just Raketty's case that may well end up demonstrating this particular SPD policy violation and Consent Decree compliance problem, depending on how either the OPA or SPD handle those cases.

Lippek Continued to Push Back and Ultimately Filed a Complaint With the OIG

When Lippek contacted the Professional Standards Bureau to inquire further about the police accountability process on Sept. 4, the bureau directed her to get in touch with SPD's legal team. Boatright, in an email to Lippek on Sept. 6 — with Myerberg and City attorney Ghazal Sharifithat CC'd — said that "[c]oncerns about policy violations with regard to the use of force are investigated by OPA."

"As a rule, if a community member has concerns about the conduct of any Seattle Police Department employee, they should refer that concern to OPA to investigate," Boatright's brief email concluded.

In a Sept. 8 email to Lippek, Myerberg wrote that he is "not aware of any case in which OPA has made an after the fact referral to FIT."

"I have a number of clients who potentially have permanent hearing damage from blast balls discharged too close to them, against manufacturer instructions and against policy," Lippek said. "So, a blast ball discharge that is close to a person already elevates it to a Type II, but if it also causes permanent hearing loss, then that's a Type III. And again, all these people throwing blast balls, they don't know when they write their report that a person has permanent hearing damage."

A Sept. 7 email in the same email chain from Boatright — that also added Inspector General Lisa Judge to the message thread — confirmed to Lippek that Raketty's case "is not under FIT investigation. However, all complaints involving a use of force will be critically reviewed by OPA; if there is a policy violation, OPA will make that recommendation. The FRB process is entirely separate from OPA."

"If you have concerns with OPA's process, I encourage you to reach out to the Office of the Inspector General, which has oversight responsibilities with respect to both SPD and OPA," Boatright's email continued.

When the Emerald later pressed Boatright for more information about the accountability process and the Consent Decree, referencing aspects of Raketty's case, but not referring specifically to it, Boatright told the Emerald that she is "not going to talk about specific cases, especially one that's under OPA review. I am actually prohibited by City ordinance from commenting on any particular case."

As Boatright had already included the OIG on the email chain, Lippek responded to everyone on the thread, briefly detailing the events of July 25 and Raketty's OPA complaint.

Via the same email thread, Lippek lodged a complaint with the OIG against the OPA "for OPA's failure to refer a Type 3 use of force (which appears to have been unreported anywhere in SPD command chain and was brought to light within the OPA process) for the force review process required by SPD policy and the terms of the consent decree."

Lippek said in the email that Raketty had suffered a Type III use of force on three separate grounds: "the damage to her hearing; the use of force being outside of policy; and the use of force constituting a criminal assault."

"This issue has come to light specifically in connection with a particular client, but concerns me because I have a number of other clients who have suffered Type 3 uses of force and have, or will, file, OPA complaints. I am concerned that a refusal to refer these complaints for force review damages my clients' chances for accountability, and undermines the accountability system as a whole," Lippek's email read.

So What Happens Now?

As of this writing, it does not appear the OPA will reconsider Lippek's request to refer Raketty's case for review by the FRB. As indicated earlier, Raketty said no one from SPD has reached out to her about the incident and neither the Emerald nor Lippek has heard back from the FIT officers they contacted.

Lippek and Raketty are still looking for answers about the SPD accountability process to guarantee they're taking the most holistic and effective approach possible to not only get justice for Raketty but to ensure accountability within the Seattle Police Department. Myerberg sent Lippek an email offering to meet with her and Raketty and said he would be happy to discuss the final findings with Lippek and Raketty when the OPA investigation is closed.

Raketty said she's glad she was recording the events that led up to the alleged officer assault.

"I doubt that the officer knew that I was rolling video, because this is a DSLR camera. Most people would assume that I am taking still photos," Raketty said. "Honestly, I don't believe that anyone would believe me, if I hadn't recorded it on video."

Raketty isn't hopeful that the officer involved in the complaint will face any form of accountability.

"I really feel like I've been sold a bill of goods, as [have] the citizens of Seattle, that there is a fair and equitable process for bringing police brutality to justice and that those who commit violence against citizens will have some level of accountability," Raketty said. "What I have seen so far does not give me confidence that this officer will be brought to justice or that accountability will be provided to him or to other officers by the Seattle Police Department."

As for SPD potentially being out of compliance with the Consent Decree? Boatright told the Emerald that SPD encounters unexpected situations that challenge the department "all the time," and that SPD, in coordination with OPA and OIG feedback, subsequently reviews policies and procedures in an effort to "advance, based upon new information or new experience." However, she said that a determination of noncompliance with the Consent Decree would "be an issue for review by the [the Department of Justice] and the federal court."

As a trans woman, Raketty said she's been targeted before. But she had never before been targeted by a police officer, which she attributes to her skin color.

"I am clearly not a Person of Color ... and I will never understand what People of Color are going through, not only in our state, but across this country," Raketty said. "But to have such a vicious act of excessive force used against me, one individual, in an unprovoked situation has led me to believe that there is a definite problem with the way these munitions are being deployed."

The officer's apparent actions have also taken away one of Raketty's greatest joys: listening to vinyl records. It's been almost two months since she lost her hearing, but she keeps hoping it will come back. She said she's so fearful of erasing the infinitesimal possibility she has of regaining hearing in her ear that she wears shooting range earmuffs on the job — and when she comes home, she just doesn't listen to her records anymore.

"I was someone who would go home and listen to them. ... I haven't listened to a single one since then," Raketty said. "Not a single one."

Carolyn Bick is a journalist and photographer based in South Seattle. You can reach them here

https://www.cebickphotography.com/contact

and here

Jessie McKenna is a writer and communications specialist with a focus on South End nonprofits and small business. She began working for the South Seattle Emerald in 2017 as a volunteer and eventually as a content contributor and content manager. She lives in Beacon Hill on unceded ancestral lands of the Duwamish People. If you do too, you can pay them rent at RealRentDuwamish.org.

Reprinted with permission — southseattleemerald.com