How the U.S. Department of Justice’s COPS review of the Spokane Police Department’s Use of Force practices misses the mark.

By Tim Connor

Friday afternoon, as I was midway through reading the DOJ Community Oriented Policing Services (COPS) report released earlier in the day, I flashed on a memorably funny line from a William Least Heat Moon article about beer. After he and a companion had traveled far and wide to sample the best of American micro-brews, the drinking partner takes a swig from a store-bought bottle.

“Did I miss my mouth?” he asks the writer.

I’ll try to better describe the disappointing emptiness of this long-awaited report as I go along. But, by comparison, all one has to do is read the Mayor’s Use of Force Commission report that was published in February of 2013. The Commission’s work is much more substantive than this new,  watery review, which was actually authored by a DOJ contractor, CNA. Held next to the earlier Use of Force Commission report, the DOJ/CNA exercise is superficial by comparison. It’s main conclusion is that Spokane police “do not routinely or deliberately engage in excessive use of force or deadly force,” and that the reviewers “did not find a biased application of use of force.”

Yet, as my colleague Liz Moore of the Peace & Justice Action League of Spokane (PJALS) has already pointed out in regards to the latter finding, the relatively limited review of use of force cases does not rule out that such bias actually exists. As the report itself notes, although African Americans constitute only 2.3 % of Spokane’s population, they were involved in 10% of use of force incidents examined by the reports authors. Likewise, Native Americans were involved in 7% of the use of force incidents surveyed, despite making up just 2% of the city’s population. It’s just that the sample size is too small to conclude that these statistics, alone, evince racial bias on the part of police.

I’ve reported this before, and I’m sure I’ll report it again: from 2007 to the present there has not been a single documented case in which a Use of Force incident and/or a Use of Force complaint against a Spokane police officer has resulted in a finding that excessive force was used and that an officer should be disciplined as a result. Not one. So, you may ask, how did DOJ deal with this conspicuous fact?

The answer is, they didn’t.

To be fair, the CNA authors find plenty that needs to be fixed. The report encompasses 42 findings and recommendations that the SPD says it will implement over an 18 month period. The bulk of these findings are critical of the disconnects in record-keeping, policy-making, and supervisory followup.

Here’s how the report summarizes its scope and findings.

The focus of the COPS Office and CNA review centered on the following aspects of the SPD’s use of force:

(1) policy and procedures;
(2) training and tactics;
(3) investigation and documentation;
(4) civilian over-sight; and
(5) community outreach.

 CNA implemented a multifaceted approach to the review of SPD’s policies and practices. This approach, similar to the approach employed in our review of the Las Vegas Metropolitan Police Department (LVMPD), included

• interviews with more than 85 officers and members of the SPD;

• interviews with more than 55 citizens and community stakeholders;

 • direct observation of SPD training sessions and two deadly force review board (DFRB) meetings;

• ride-alongs with SPD police officers; • analysis of 243 use of force incident files (deadly and non-deadly) from 2009 through 2013;

• review of SPD policies, training requirements, training manuals, and other related materials;

• review of national standards and practices;

 • delivery of direct technical assistance and establishment of a collaborative partnership with SPD throughout this engagement.

After 11 months of conducting its assessment, CNA did not find that police officers in the SPD routinely and deliberately engage in excessive use of force or deadly force, nor did CNA, based on its assessment, find evidence of biased application of force. While SPD falls within the spectrum of good policing practices, we did find that there are a number of aspects of use of force training, documentation, officer remediation, accountability, and other administrative and management practices that have historically been ignored or poorly managed. In order for the SPD to resolve these matters and align its culture and practices with the best evidence-based practices in modern policing, there are a number of corrections and improvements that must be made.

If there’s a strength in the analysis it is in the report’s observations of bureaucratic disconnects and sloppiness within the SPD system. On page 33, the flaws in the Use of Force reporting process are summarized as such:

A number of common themes and areas for improvement arose in our review of the use of force incident files. These themes and areas for improvement include
•• lack of consistency in the reporting of tools and tactics used;
•• lack of consistency in the organization of deadly force incident files;
•• lack of Use of Force Administrative Reports in deadly force incidents;
•• lack of supporting documentation (photos, radio transmissions) in both deadly and non-deadly use of force incident files.

The SPD is also criticized (see page 62) for not documenting officer training on non-lethal use of force techniques and thus “it appears that SPD is not documenting a sufficient amount of UOF training.”

Among the specific concerns about use of force practices is an apparent lack of training, and training documentation on the lateral neck restraint (LNR), which the report finds is more commonly used by SPD officers than are taser applications and other non-lethal tools. The report also recommends that level 2 LNR applications (which compress the carotid artery in the neck, rendering the subject unconscious) be treated and reviewed as uses of deadly force.

There is one area where the report actually looks at use of force practices and finds fault. This is in the area of patrol rifles. After reviewing nine deadly force incidents between 2009 and 2013, the authors find that rifles were deployed and fired in five of the incidents and that “this would indicate that the rifle deployment policy is not restrictive enough and should be evaluated by the SPD.”

WHAT’S MISSING

The elephant in the room for the Spokane Police Department is the culture of exoneration that came into the light in the Otto Zehm case, and then only because the security video that captured Otto’s deadly arrest was obtained by the Center for Justice. Even with the video evidence, the Spokane County Prosecutor did not indict any SPD officers.  Nor was Karl Thompson—the eventually-convicted officer who initiated the deadly beating and suffocation of Otto Zehm—on a track to be disciplined by SPD at the time the Justice Department’s civil rights division secured a criminal indictment against him from a federal grand jury.

To be blunt, the scariest part of the Zehm case was not Otto’s tragic death, but the Justice Department investigation that revealed how the SPD reflexively went to work to defend and protect Thompson. Even when the video was obtained and broadcast on local television, the response from the City of Spokane was, in effect, “don’t believe your lying eyes.”

It is in this area of oversight and accountability that the  DOJ/CNA report becomes evasive and, frankly, dishonest.

I’ve reported this before, and I’m sure I’ll report it again: from 2007 to the present there has not been a single documented case in which a Use of Force incident and/or a Use of Force complaint against a Spokane police officer has resulted in a finding that excessive force was used and that an officer should be disciplined as a result. Not one.

So, you may ask, how did DOJ deal with this conspicuous fact?
I hoped and expected that DOJ/CNA would at least do what the DOJ Civil Rights Division did in Seattle as part of its “pattern or practice” investigation in 2011. In Seattle, DOJ investigators looked at hundreds of use of force reports and found (based on the officers’ own statements in the report) that Seattle police officers used excessive force in one out of five instances where force was used—20%.

No such analysis was done in Spokane by DOJ/CNA, even though the review team reports that it looked at 243 use of force incident files from 2009 to 2013. There is no explanation offered for this.

But the review does offer this bold heading on page 78:

The Administrative Review Panel (ARP) has rarely issued disciplinary or corrective actions in use of force incidents due to its ambiguity and structural limitations.

Rarely?

The ARP is the SPD’s internal review board and the only part of the SPD authorized to recommend discipline to the police chief. To report that it “rarely” issues disciplinary actions related to use of force is to imply that it has recommended some. But there is no documentation that this is the case, or if it is the case, just how many instances SPD officers were corrected or disciplined for excessive force during the 2009-2013 period that the DOJ/CNA review covered.

As I’ve noted before, when SPD presented to the Mayor’s Use of Force Commission in April 2012, it offered up a clean slate—492 Use of Force reports from 2007 to 2011, with no reviews resulting in discipline.

Moreover, if you read below the bold subhead on page 78, you find: “In all deadly force incidents, the ARP found all incidents to be within policy and issued no recommendations and no proposed discipline.”

Well, okay, what are we supposed to make of this?

The report doesn’t say. It only speculates that one reason SPD gives itself such routinely high grades is that its reviewers apply too narrow a scope when they conduct use of force reviews, and do not “formally review the officer’s actions predicating the use of force, training record, decision making and use of tactics, and any policy violations outside of the actual use of force policy as part of the ARP.”

The problem with this half-empty approach is that it frankly ignores what many of us (including journalists and the DOJ investigators who prosecuted the Zehm case) already know about how the culture of exoneration works inside SPD.

Here’s where it is useful to compare the DOJ/CNA’s vague and gentle touch to the actual digging that the Use of Force Commission provided, taking a hard look at specific cases, including cases that were within the scope of the DOJ/CNA review.

For example, Use of Force Commission consultants Mike Gennaco and Cynthia Hernandez conducted a very detailed review of a deadly force incident on north Monroe Street in November of 2010. The episode resulted in police shooting and killing a man who’d threatened his father and fired several rounds at his father’s house before driving away. Although one of the officers (who fired several rounds) reported that the assailant fired the shotgun during the encounter on Monroe, the consultants also reported that “it could not be established during the subsequent investigation whether, in fact, the subject had fired his weapon.”

There were no indictments nor disciplinary actions taken against any of the officers involved in the event which left several police bullet holes in surrounding buildings, including an office used by the Spokane tribe.

Among the problems that Gennaco and Hernandez found were crime scene contamination (an SPD officer moved the assailant’s shotgun after he’d been killed), and police internal affairs investigators and even the police ombudsman, asking officers patently leading questions to help them justify why they opened fire and fired so many rounds at the subject.

From this method of questioning, Gennaco and Hernandez observed, it “could be interpreted that the interview is designed to elicit answers” that would legally justify the use of force.

Gennaco and Hernandez also found irregularities in how the officers involved were interviewed, including the fact that two of the officers involved declined to provide voluntary interviews after the event, and only answered questions about the event five months after it occurred. Consequently, witness “contamination was likely” because at least one of the officers discussed the case in a team debriefing before he was formally interviewed by investigators. Moreover, Gennaco and Hernandez reported that at least one of the officers involved expressed concern about “potential witness contamination” because of the way officers were processed and interviewed following the event.

“The number of shooters and the overall number of rounds fired in this incident is remarkable,” Gennaco and Hernandez reported, “particularly since only two of the twenty-six rounds fired actually struck the subject. Despite this, the Deadly Force Review Board concluded that the officers were ‘disciplined’ in their fire control.”

Gennaco and Hernandez also made note of some of the revealing cultural practices that affect use of force review. They pointed out, for example, that while officers are required to provide a “full description” of their own uses of force, they are not required to report on the uses of force they observe from fellow officers. In one case, they reported, a police guild attorney “reminded one of the officers that they are instructed to write only what they did and not report about what other officers did.”

Obviously, there are both policy and culture issues involved in such observations, and because the Use of Force Commission published its reports, this information was easily available to DOJ/CNA.

What did they do with it?

Not much.

Whereas the Use of Force Commission saw such evidence as a sign of a serious cultural problem within the ranks of the SPD, the DOJ/CNA report leans the other way. Its approach to evaluating SPD culture was to go on ride-alongs with SPD officers and conduct dozens of officer interviews focusing on general questions such as whether they would report a fellow officer for speeding if the officer was going more than 10 MPH over the speed limit. The survey results are interesting but the difference is that while DOJ/CNA looked at what SPD officers say about how they would handle hypothetical situations, the Use of Force Commission based its recommendations on what it and its experts actually observed.

Nonetheless, the DOJ/CNA reviewers are now questioning whether a cultural audit is even worth attempting:

“Because the city of Spokane use of force commission’s original request for a cultural audit was unclear on what the cultural audit would comprise,” the authors wrote, “it is important for SPD to initiate a discussion with the City of Spokane Use of Force Commission. SPD and the city of Spokane use of force commission will need to determine if the baseline cultural assessment conducted by CNA meets the needs of the commission or if a further audit is necessary.”

But the worst part of the DOJ/CNA report, by far, is how it addresses the issue of Civilian Oversight. It turns out the problem they find, here, is not that oversight is lax, or incompetent, but that cranky Spokane citizens just don’t understand how good they have it.

For starters, here’s the great story that DOJ/CNA see on civilian oversight, in Spokane, from page 86 of the report:

In February 2013, 69 percent of Spokane voters approved Proposition 1, which granted the OPO significantly more power to conduct independent investigations of alleged SPD misconduct. After a year of negotiations between the Spokane Police Guild and the city council, a new contract incorporating several changes to the OPO’s authority was signed in February 2014. Although several community groups claimed that the new contract did not honor the spirit or the letter of Proposition 1, this new contract significantly increased the OPO’s authority beyond the ability to certify or object to investigatory procedures and outcomes. For example, the OPO now has the right to conduct an independent investigation if the SPD declines to open an investigation in response to a complaint and can conduct its own interviews related to complaints filed with the OPO before the SPD begins an investigation.

But this is moonshine.

Yes, it’s true that Proposition 1 “granted the OPO significantly more power to conduct independent investigations of alleged SPD misconduct.”

But, as I’ve reported at some length, the problem is that those powers–conferred by the vote of the people–were largely nullified by the ordinance that the City ultimately adopted a year later to implement Prop. 1. Today, the OPO conducts itself not in accordance with the powers voters thought they were delivering to the office with Prop. 1, but with the 2014 ordinance that still effectively shields the SPD from independent oversight.

If you are struggling to decide who’s telling the truth here, let me offer the most salient fact.

Prop. 1 became effective nearly two years ago. Care to guess how many independent investigations of alleged police misconduct that the Office of Police Ombudsman has initiated since then?

Exactly none. Zero.

And why would this be?

The answer is that the OPO’s role in investigating citizen complaints hasn’t changed. Just as the old ordinance required, the OPO still must refer the complaints to the SPD’s office of internal affairs for investigation. The OPO then monitors the SPD-IA investigation to determine whether it is “timely, thorough, and objective.”

Again, this is the same process that was prescribed by the earlier ordinance. The only difference is that if the OPO declines to certify an SPD investigation, and the SPD refuses to do more work, the Ombudsman can go to the Commission (instead of the Mayor) to request that SPD be required to do more investigation. The only scenario via which the OPO gets to independently investigate a citizen complaint is if the OPO Commission is either stiffed by the SPD in its request for more investigation, or if the Commission finds that SPD still hasn’t done a good enough investigation. It can then pursue an independent investigation by the OPO (or another outside investigator) but only AFTER the chief of police makes a final disciplinary decision in the case.

The propaganda from the Mayor, the Chief, and the Council that approved the new ordinance, is that this absurdly circumscribed investigative role for the OPO is both consistent with Prop. 1 and a major reform. And DOJ/CNA swallow this bait hook, line, and sinker.

From the report: “The OPO now has independent authority to investigate complaints against the SPD, authority that has been endorsed by the Spokane Police Guild, the Captain and Lieutenant’s Association, and the city council. In light of the harm to SPD-community relations in the aftermath of the Otto Zehm case, this makes the OPO the only entity external to the SPD with the authority to represent the public in adversarial complaints against the SPD.”

There is a grain of truth in this but, overall, it’s nonsense.

Sure, under the City Charter the OPO does have  independent authority. That’s what nearly 70% of us voted for. But the OPO is now stymied because of all the procedural hurdles that the implementing ordinance placed in its way. So, it’s simply not accurate to report that “the OPO (is) the only entity external to the SPD with the authority to represent the public in adversarial complaints against the SPD.” The ordinance effectively strips the office of independent investigative authority, and there simply is no construction of the ordinance (or Prop. 1, for that matter) that empowers the OPO “with the authority to represent the public in adversarial complaints against the SPD.”

The problems in this section of the report don’t stop there. The authors actually go on to say that the problem is, well, us.
Seriously, finding 9.2 in the report is: The community lacks a comprehensive understanding of the OPO’s current role and responsibilities.

And here the authors conclude their finding by stating it is “important” that, at public meetings in early 2014, “the community showed a basic misunderstanding of the OPO’s current role, what it offers the public, and how it is the community’s independent entity through which to file a complaint. Some community members cited a perceived lack of independence as a deterrent to making complaints.”

I disagree. The only perception “problem” I see is that the public understood all too well, and wasn’t buying the bait & switch routine.
The report authors’ want us to appreciate that the OPO “is the community’s independent entity through which to file a complaint.” But what is there to appreciate about the OPO’s independence when we all know that the complaint is simply passed on to the SPD for investigation? I don’t have the data to prove this, but I’m going to guess that most people who avail themselves of an ombudsman to lodge a complaint actually expect the ombudsman to do the investigation, not farm it out to the agency against whom the complaint is about.