A new dispute over Use of Force investigations highlights a growing rift between Spokane police and Ombudsman Tim Burns.

By Tim Connor

Attached to Spokane Police Ombudsman Tim Burns’s report for the month of June is a rather astounding artifact.

It’s a July 14th letter to Burns from Spokane Police Chief Frank Straub about a central issue in the now six-and-a-half year effort to reform the Spokane Police Department.

It has to do with this question: How committed and capable is the SPD in investigating Use of Force complaints against its police officers?

It’s an issue that matters all the more because of how Straub and Mayor David Condon effectively hog-tied the city council earlier this year into gutting Proposition 1—the voter-approved city charter amendment that was supposed to require independent investigations of citizen complaints by Burns’s office, the Office of Police Ombudsman (OPO). As I’ve reported earlier, the proof of that is now in statistics. In the year and a half since the charter amendment went into effect there have been exactly zero independent investigations by the OPO. That’s right. None.

What Ombudsman Tim Burns received from Chief Frank Straub on July 14th was not just a rejection of an appeal, but a scolding. The Chief backed his Internal Affairs division to the hilt, refused to open an investigation into the use of force complaint, and rejected proposed changes in policy.

What is true now, is what was true the day voters approved the popular ballot measure—short of a criminal referral, or a use of deadly force inquiry, the only people who get to investigate complaints against SPD officers are those assigned to SPD internal affairs.

And how are they doing?

I first looked at this question in a report to the Mayor’s Use of Force Commission in April 2012.

My scorecard the at the time was that from 2007 to 2011 there had been 492 Use of Force reports generated by SPD, along with 62 Use of Force complaints filed by citizens. In none of the 492 cases had the SPD found that the use of force applied was excessive. Likewise, and not surprisingly, in none of the 62 complaints that internal affairs investigated, had IA sided with the complainant to find that the use of force was excessive, let alone inappropriate.

No officer had been disciplined. The SPD officers had been uniformly exonerated, and SPD officials proudly pointed this out when they testified before the Mayor’s Use of Force Commission in 2012.

I last updated my numbers in February. By then–again from the 2007 starting point–I counted 80 Use of Force investigations by SPD and, again, there was no instance where SPD-IA agreed with the complainant that the use of force was excessive. At a July meeting  at the Community Building, Burns confirmed to me that, on his watch at OPO (now five years), SPD-IA has yet to validate a single use of force complaint against a Spokane police officer.

This is the background on the exchange between Burns and Straub this summer.

On June 25th, Burns sent a two page letter to Straub about a May

1, 2014 incident in which a driver, stopped “for multiple traffic offenses” got into an apparent argument with an officer. The “situation escalated,” Burns reported, “and the offending driver was forcefully removed from their (sic) vehicle and arrested for Obstructing an Officer.”

In the process, the officer reportedly used an arm bar “technique” to remove the driver from the vehicle.

“The officer then took the driver to the ground,” Burns continued, “and then placed the driver in the prone cuffing position. In the process, the driver received a small cut on their forehead.”

On May 12, the driver filed a complaint against the officer with Burns’s office, the Office of Police Ombudsman.

Notwithstanding Prop. 1, Burns still can’t do these investigations directly in response to citizen complaints. The investigation has to be done by SPD Internal Affairs, with Burns monitoring IA’s work so that he can certify the result as “timely, thorough, and objective.” If he can’t, or won’t, SPD gets to decide whether or not to augment the investigation. Only if there’s a prolonged impasse can Burns turn to a new commission–the OPO commission–which (assuming it concurs with Burns) can ultimately order an independent investigation. But that process hasn’t been tested, as yet, because the commission has not yet been seated.

Under these circumstances, the problem with this one is pretty stark. After Burns forwarded the complaint to SPD-IA, an internal affairs officer, Sergeant Dave Staben determined that the complaint did not warrant investigation by SPD-IA. In such cases, the complaint is classified as an “investigative inquiry,” which is, to say the least, a somewhat confusing term for a case that will not be investigated further.

As it stands, the most Burns can do with his limited powers, is object to the decision, and ask SPD to re-consider.

In this instance, according to Burns, Sgt. Staben sought Burns’s concurrence for the decision not to investigate further. To review Sgt. Staben’s rationale, Burns says he asked to review the SPD Use of Force report on the incident.

In reply, Burns wrote to Straub, “I was advised that a Use of Force report was not required in this instance because it did not meet the reporting threshold.”

This, in turn, led to a standoff between Burns and SPD-IA, with SPD-IA insisting that the complaint didn’t warrant investigation, and Burns refusing to certify that decision. The next step was to appeal to the Chief. And that’s what Burns did with his June 25th letter.

“Anytime physical force is used by an officer to move an individual against their will or that have a visible physical injury through the actions of the officer,” Burns wrote to Straub, “it is my opinion that this is a use of force, and a Use of Force report should be completed. The Spokane Police Department reported that there were 147 Use of Force reports made in 2013. Based upon the liberal interpretation of the Use of Force policy and reporting by supervisors described above as it relates to minor injuries, it appears that the 147 instances is actually an under reported number for the actual Use of Force incidents.”

What Burns received from Straub on July 14th was not just a rejection of the appeal, but a scolding. The Chief backed the IA decision in the case, and rejected proposed changes in policy.

Moreover, he wrote: “I take exception to your inference that the Spokane Police Department’s interpretation of use of force is ‘liberal.’ I would argue that it is anything but liberal and that the Spokane Police Department documents use of force consistent with the best practices of the profession, and at times exceeds those standards as evidenced by the Department’s willingness to quickly adapt and implement your recommendation that all instances in which an officer points his/her weapon at an individual be construed as a use of force.”

Burns is hardly alone on this issue. Although the Chief, like the

Mayor, has said repeatedly that he embraces the recommendations of the Mayor’s Use of Force Commission, the commission actually zeroed in on the issue at stake here, and they are solidly on record backing Burns’s interpretation of what needed to happen here—and didn’t.

Some of the meatiest parts of the Commission’s work shows up in its recommendations on Use of Force reporting and improving investigation practices in use of force incidents.

From Recommendation 14:

“According to SPD policies 300.4 and 300.5 an officer must complete a use of force report when his or her application of force appears to have caused physical injury, a subject has expressed a complaint of injury or been rendered unconscious, a level II lateral neck restraint or control device has been utilized, or there has been an intentional discharge of a firearm. In such instances, SPD policy 300.5 requires a supervisor to: respond to the scene (if needed); interview involved officers, witnesses, and other involved persons; collect evidence (when appropriate); and prepare and submit a use of force report through the chain-of-command, to include completing the recommendation section of the report.”

One of the two consultants the commission hired to assist it in reviewing SPD policies and practices was Mike Gennaco a former Justice Department attorney who now leads the Office of Independent Review for Los Angeles County in California. Gennaco and his colleague, attorney Cynthia Hernandez, submitted their own thirty page report to the commission with recommendations on use of force. The commission then embraced those recommendations and referenced them in its own recommendations.

“In his report,” the commission noted, “Mr. Gennaco recommends that the criteria for prompting a use of force report be expanded to include: “head strikes, knee strikes, elbow strikes, open and closed hand strikes; baton/flashlight strikes; all applications of less lethal devices (OC spray, foam or wood rounds, bean bag rounds, etc.); carotid neck restraint (Level 1)…; [and] all takedowns and prone handcuffing incidents that result in any head or facial injury. Mr. Gennaco advances this recommendation as a means of improving the department’s ability to evaluate practices, policies, and individual officer actions, and to improve the tracking and frequency of uses of force. The Commission endorses Mr. Gennaco’s recommendation for expanding the criteria that trigger use of force reports within the SPD.”

Burns, in his letter to Straub was simply repeating what the Use of Force Commission had already recommended and noting (as the commission already had) that if a use of force “appears to have caused physical injury” then existing policy requires a Use of Force report.

Thus, it’s not only difficult to square Straub’s testy response to Burns with the Chief’s publicly expressed endorsement of the Use of Force Commission’s recommendations but, as Burns points out, it doesn’t even square with SPD’s existing policy.

There is more to the unraveling of the relationship between Straub and Burns than this particular case. Indeed, the tension at this week’s Public Safety Committee meeting (August 18th) between Burns and SPD’s Director of Police Oversight, Tim Schwering, was palpable.

As council member Amber Waldref observed, the disputes weren’t just over policy but have creeped into communication and information-sharing functions that, are critical to Burns being able to monitor the performance of SPD Internal Affairs. And make no mistake, even under the new ordinance, the bulk of Burns’s job is to monitor SPD internal affairs.

Councilman Jon Snyder, who chairs the committee, tried awkwardly to put a positive spin on the situation, saying that the disagreement between Burns and SPD “means something’s working in our system.”

“I know it’s awkward to be sitting there” (disagreeing with one another), Snyder said to Burns and Schwering, “but it also means you’re not colluding and that’s really important for public trust.”

Actually, what might be all the more important for public trust is for Straub and the SPD to stop badgering Burns, to follow their own policy on use of force reporting and implement the Use of Force Commission recommendations.

As I reported earlier on the issue of body camera policy, one of those  clearly losing patience with the SPD is council president Ben Stuckart.

Stuckart waited for Monday night’s full council meeting to have Burns publicly report on the deterioration in the OPO’s overall relationship with SPD. He did this by asking Burns to describe the trend in SPD-IA investigations that the OPO has been unwilling to certify as “timely, thorough, and objective.”

In his first four years, Burns has only declined to certify seven SPD-IA investigations. In the first eight months of 2014, Burns reported in response to Stuckart’s prompting, he’s already declined to certify nine.

The new OPO commission is expected to be seated in September and the commission does have the power—when the OPO and SPD are in a prolonged impasse over the OPO not certifying an IA investigation—to empower the OPO (or another investigative agency) to conduct an independent investigation. Another important factor both in the body camera debacle and the use of force policies and practices is the pending review by the Justice Department’s Office of Community Oriented Policing Services (COPS) program. According to DOJ’s Tawana Waugh, that review is now expected to be completed near the end of this year.