Why a four year-old case still poses hard questions about whether Ombudsman Tim Burns can be an effective watchdog over Spokane police abuses.
By Tim Connor
When Amanda Lopez returned to California from Spokane in early 2011, she went south with bruises and a complaint.
A 30 year-old manager for a San Diego-based federal nuclear energy contractor, she’d come to Spokane to visit family for Christmas and New Year’s. In the second hour of the new year she, and other patrons at Ugly Betty’s, a bar near Main and Division, were told to leave because the police were on their way. She and two of her relatives left, drifting down the sidewalk in a small crowd of revelers.
By that time, Spokane police had been summoned—alerted that there was a man “waving a gun” at or near the bar. According to one officer, he located the suspect a little before 1:30 a.m., then got out of his patrol car, carrying a rifle. In his account, Lopez began shouting at him that there was “no need for guns” and was “approaching him rapidly” as he heard “multiple officers telling the defendant (Lopez) to get back.”
Lopez was concerned, she says, because her brother (who was not the male suspect police were searching for) was also in the crowd. Seeing the police rifles out, she was worried about his safety. In retrospect, she thinks that when she spoke to ask “where is my brother?” that this led the approaching officer to mistakenly conclude that she was the sister of the man being sought. She also believes this error is what caused her to be singled out for arrest.
By the lead officer’s account, he told Lopez to “get back” and, then, as she continued to approach him, to “get the fuck back.” He further reported that she got so close to him that “he had to push her away to protect himself and his weapon.”
The officers’ account was reinforced by a second officer who reported he “observed the defendant interfere with and distract officers during a dangerous event.”
Amanda Lopez was one of two people in the crowd at Main and Division arrested for interfering with police. Her version of the incident differs in several respects from the police account. She says the demeanor of the arriving officers—“panning us with rifles and yelling for several minutes”—created a very intense and frightening situation. She disputes that she approached the officer, or disobeyed any orders.
As importantly, Lopez says the “push” took the form of a rifle butt strike to her chest, one that would cause a painful injury. As she was being booked into the Spokane County jail, she began to have trouble breathing, collapsed, and was transported by ambulance to Deaconess hospital for examination and treatment.
Ultimately, the investigative followup to the incident took two paths. The first was connected to the obstruction charge. The second was Amanda Lopez’s complaint that she was a victim of excessive force.
As to the obstruction charge, Lopez eventually consented to an agreement offered by prosecutors that resulted in a year’s probation and a nominal financial penalty.
As to her complaint that the officer used excessive force, that would get addressed in a completely different way.
Missing from Chief Kirkpatrick’s letter was any mention of how SPD-Internal Affairs had resolved Amanda Lopez’s complaint that she’d been struck with a police officer’s rifle butt.
Had Amanda Lopez known about the SPD’s record in investigating use of force complaints against officers, she may not have bothered to register hers.
Over the five year period from 2007 thru 2011, the SPD reviewed 492 use of force episodes and its internal affairs branch investigated 62 use of force complaints. In no instance did SPD report finding fault with an officer’s conduct.
In the nearly three years since, there have been at least 29 additional use of force complaints investigated by SPD’s internal affairs (IA) branch—and still none have resulted in even a single finding of officer misconduct.
It is, by any measure, a remarkable streak of exoneration.
Word of the outcome of the IA investigation into Lopez’s complaint came in an April 5, 2011 letter from then-police chief Anne Kirkpatrick. Based on the IA investigation and “an examination of other evidence pertaining to the matter,” Chief Kirkpatrick wrote, “I adjudged that the employees’ actions were appropriate given the facts available to him at the time of the incident.”
Missing from the chief’s letter was any mention of how, or even whether, SPD-IA had resolved Lopez’s allegation that she’d been struck with a rifle.
Instead, this key issue would wind up getting addressed in a report prepared by Tim Burns, the former California code enforcement and police officer whom Spokane hired in 2009 to be its first police Ombudsman. In the report, it is clear that both SPD investigators and Burns concluded that Lopez was lying about what caused her bruise. What isn’t clear from the report, however, is that Burns withheld information from his report that corroborated Amanda Lopez’s account of what happened to her.
“She is very upset about the event and at this point further evaluation and exam shows evidence of an early bruise which does appear to be consistent with what appears to be a gun butt, this is what the patient describes to me and it does seem to be consistent with the overall bruise and contusion.”—Emergency room physician’s report on Amanda Lopez the morning of 1-1-11.
With his wide-brimmed hats, flowing hair, and walrus mustache, Burns may be the most recognizable public official in Spokane. In his five-plus years in the high-profile police ombudsman job he has earned consistent praise for his accessibility, his public outreach, and for several important policy recommendations, including a requirement that SPD officers fill out a report each time they unholster a firearm and point it at someone.
Yet, the position itself is a peculiar one, it’s layers of responsibilities reflect fierce political and legal battles that are as yet unresolved. Although the position arose from a citizens movement demanding more police accountability, the duties and limitations of the ombudsman were fleshed out in closed meetings between top officials of Mayor Mary Verner’s administration and the police guild.
Consequently, the Office of Police Ombudsman (OPO) was created without the power to conduct independent investigations into citizen complaints—a function that essentially defines what an ombudsman does. Instead, the ombudsman must refer citizen complaints to the SPD’s internal affairs branch. The OPO then participates in and monitors the IA investigation so that the ombudsman can certify that the IA investigation was “timely, thorough, and objective.” If the OPO declines to certify an investigation, the ombudsman can appeal to the police chief and, ultimately, the mayor to seek additional investigation by IA. But in no scenario can the OPO conduct its own investigation nor issue its own reports on how citizen complaints were investigated. (One important change is that under the latest revision to the OPO ordinance, a citizen commission has replaced the mayor in the appeals process.)
Public resentment over the powerlessness of the office eventually led to a second ordinance in June 2010. The 2010 ordinance gave the OPO powers to conduct independent investigations and required the ombudsman to file closing reports on how specific complaints were resolved.
These new powers turned out to be short-lived. The Spokane Police Guild challenged the 2010 ordinance in filings with the state commission that regulates public employment labor practices. A year later, an arbitrator ordered Spokane to repeal its 2010 OPO ordinance and revert to the version that Mayor Verner and the police union had privately negotiated in 2008.
As fate would have it, Amanda Lopez’s excessive force complaint fell in the slender window of time during which the 2010 ordinance was in effect. This meant that even though Lopez lodged her complaint directly with the SPD, Tim Burns was required to file a closing report on how the complaint was handled. As such, Lopez’s case is actually one of a very few excessive force complaints to date where Burns’s work is reviewable.
The other difference is that Lopez took her file to the Center for Justice, which is how I got access to it, with her permission, in June of 2011. (I resigned from the Center last year.) Those records helped reveal that Burns was either unaware of key evidence in the case, or had mistakenly overlooked it and had thus left it out of his April 6, 2011, closing report. Among other things, Burns’s report was missing these two key facts.
•The first is that there was a witness standing right next to Lopez (her sister-in-law) who corroborated that she (Lopez) was struck with a rifle wielded by a police officer.
•The second is that an emergency room physician who examined Lopez later that morning did find that the contusion and emerging bruise on her chest was “consistent” with a strike from the butt of a gun.
It was the second fact that I and the Center emphasized in a June 11, 2011 memo to Burns under the subject line: “Error in Closing Report IA #11-003.”
Burns’s response was that there was no error in the report. He reported he did have access to the physician’s report as part of the SPD-IA investigation and, thus, it was “not new information.”—
“It is my opinion that the doctor’s statement is influenced by what the complainant told the doctor,” Burns explained in an August 24, 2011 letter. “The doctor’s conclusion was not arrived at independently.”
This is a remarkable statement. Neither Burns nor the SPD investigators examined Amanda Lopez. Yet, they substituted their judgment about the contusion/bruise for that of a physician, and in Burns’s report did so with the clear inference that Lopez was lying about being struck with a rifle.
Here, for the record, is what the ER physician reported:
“After evaluation of Ms. Lopez it appears she is experiencing the acute onset of what appears to be some acute chest pain. She is very upset about the event and at this point further evaluation and exam shows evidence of an early bruise which does appear to be consistent with what appears to be a gun butt, this is what the patient describes to me and it does seem to be consistent with the overall bruise and contusion and is consistent with same.”
The discharge diagnosis was “acute chest wall contusion” and “brachial plexus injury.”
And here’s how Burns covered this in his closing report:
“The investigation revealed that the officer was forced to confront the complainant due to the complainant’s interference was in possession of a patrol rifle at the time of the incident. The injury reported by the complainant was inconsistent with the type of injury the complainant would have received had the complainant been struck with the butt of the gun the officer was carrying at the time of the incident.” (emphasis added.)
In his closing report it is this statement—Burns’s opinion that Amanda Lopez’s injury could not have been caused by a rifle butt—that drives his conclusion that “the involved officers performed within the scope of policies, procedures and training.”
To reach that conclusion, Burns had to dismiss the emergency room physician’s opinion that the bruise was consistent with a rifle butt strike, and he had to dismiss not only Amanda Lopez’s statement that she was struck with a rifle, but Lopez’s sister-in-law’s statement that the rifle strike occurred. (It is undisputed that Lopez’s sister-in-law was standing right next to Lopez when the encounter took place. Indeed, Lopez says the blow from the rifle would have sent her to the ground had her sister-in-law not caught her.)
Burns’s response to our calling attention to what we thought was a “mistake” by omission was that there was no error in the report. He reported he did have access to the physician’s report as part of the SPD-IA investigation and, thus, it was “not new information.”
Tim Burns elaborated on his reasoning in the August 24, 2011, letter in which he explained why he was denying the request that he re-open the investigation into Amanda Lopez’s complaint.
In addition to dismissing the doctor’s opinion as biased toward Lopez, he offered several other points. Among them:
•That portions of Amanda Lopez’s medical records reporting on blood work results were blacked out and, thus, “I can only conclude that it was redacted because the results would affirm the officers’ observations that the complainant was intoxicated at the time of the incident.”
•None of the four officers interviewed “observed the complainant being struck with a rifle.”
•The “3-point” sling on the accused officer’s rifle “would have made it physically impossible for the officer to have struck the complainant with the butt of the rifle.”
•That the butt of the rifle is oval shaped, and the bruise left on Amanda Lopez “is a right angle. The rifle pattern and bruise pattern do not match.”
Burns agreed to a lengthy, digitally-recorded interview after we received his letter. Joining me in questioning him was Kiondra Bullock, the executive director of VOICES, a coalition partner with CFJ on police accountability.
During the interview, Burns admitted to mistakes in how his closing report was written, namely his decisions not to even mention the eye-witness account of Lopez’s sister-in-law, and failure to report the conclusion of the emergency room physician that the bruise on Amanda Lopez’s chest was consistent with a rifle-butt strike.
But there were other troubling mistakes and inconsistencies, beginning with the first example Burns cited in the 8/24/11 letter—with his clear suggestion that Amanda Lopez was less than credible because her blood-work results were redacted.
While it’s true that high levels of alcohol in the bloodstream can be detected for several hours after a person has been drinking, there was simply no way that the blood-work results specifically referenced in Burns’s 8/24/11 letter “would affirm the officers’ observations that the complainant was intoxicated at the time of the incident.”
If Burns had looked more closely at the redacted document, he would have noticed that the blood draw occurred on January 4th—three days after the incident. Both the date and the name of the San Diego-based medical group that Amanda Lopez visited upon her return to Southern California are on the first page of the report.
While it is significant that none of the officers said they observed the alleged rifle-butt strike, it’s also obvious—as Kiondra Bullock bluntly pointed out during our interview with Tim Burns—that the SPD has a notorious credibility problem with use of force testimony. Witness the Otto Zehm case. Some skepticism from the Ombudsman would seem to have been warranted. And, yet, the officers’ accounts are clearly given more credence by SPD-IA and Burns than the accounts provided by Lopez and her sister-in-law.
But the dispute over the bruise is the most troubling because, going back to Burns’s closing report, the shape of the bruise is what gets cited to dismiss Amanda Lopez as not credible.
There are actually two bruise areas visible in examining room photos taken after the incident—the very well-defined purplish bruise near Lopez’s left collar bone and a much more diffuse bruise lower on her chest. The purplish, better-defined bruise has a distinct shape to it. It may be right-angled but the best photo of the bruise also shows an unmistakable curve to it.
When I raised this with Burns during our 8/25/11 interview and said that to my “untrained eye” the gun butt could cause a bruise like the one in the photo, he replied: “Well, I think you and I are speculating though.”
Yet, Burns wasn’t speculating in his closing report, nor was he speculating in his letter dated the day before our interview. Rather, he was unequivocal that the bruise in the photo could not have been caused by the rifle butt, and therefore Amanda Lopez’s account, and her sister-in-law’s account, were deemed not to be credible.
But if it wasn’t a rifle-butt strike that caused the bruise on her collar bone, what did? In his 08/24/11 letter, Burns suggests that it was “the technique” involving the officer shoving Amanda Lopez with the “heel and flat of the officer’s palm” that explains the injury.
Suffice to say, you can look at the above photo of the bruise and decide for yourself whether it was more likely caused by a rifle butt or by the heel of a hand.
During the interview, Burns admitted to mistakes in how his closing report was written, namely his decisions not to even mention the eye-witness account of Lopez’s sister-in-law, and failure to report the conclusion of the emergency room physician that the bruise on Amanda Lopez’s chest was consistent with a rifle-butt strike.
There are footnotes to the Amanda Lopez case and among those cited in Burns’s 8/24/11 letter is that Lopez, to settle the criminal charges against her, eventually signed an agreement stipulating to the accuracy and admissibility of the police reports. Lopez says she didn’t want to sign the order stipulating the accuracy of the police reports. But, ultimately, she decided it was a price she was willing to pay to have the case dismissed in exchange for a nominal probation fee.
In the end, Burns declined the request to re-open the inquiry into Lopez’s complaint. He did, however, admit that he was mistaken in his letter to cite the redacted lab report as somehow undermining Amanda Lopez’s credibility, and that it was a mistake for him to omit from his closing report both the existence of the emergency room physician’s opinion on the bruise, and the statement of Lopez’s sister-in-law corroborating Amanda’s account of the rifle strike.
You can download and read my notes from that interview here.
Notwithstanding Tim Burns’s regrets about how he handled his review of the Amanda Lopez complaint, it is still sobering to see how the police officers involved received all the benefits of the doubts, and how the statements and evidence supporting Amanda Lopez were systematically dismissed and discredited, not just by SPD-IA, but by Tim Burns. It’s no wonder that Amanda Lopez feels that the process did nothing but add insult to her injury.
Since 2007, SPD Internal Affairs has investigated at least 91 excessive force complaints against police officers. In no instance has a citizen complaint resulted in a finding that the alleged use of force was excessive or unwarranted.
The Lopez case is not the only indication that Tim Burns may not be as objective as he should be in reviewing the actions of Spokane police. In a December 2012 report requested by the Mayor’s Use of Force Commission, consultant Mike Gennaco criticized both SPD investigators and Burns for asking leading questions during their interviews with Spokane police officers involved in a use of deadly force incident in November 2010.
Gennaco is a former Justice Department attorney who, at the time, led the Office of Independent Review overseeing the Los Angeles County Sheriff’s Department in California.
Wrote Gennaco: “These leading questions which go to the heart of the reason for using deadly force or the officers’ tactical decision-making can be perceived as directing the officers to answer the question in a way that would legally justify their use of force and could be interpreted that the interview is designed to elicit answers that do so.”
It’s disturbing enough that SPD-IA investigators were cited for this practice. But, if anything, it should be more troubling that Burns was found to be asking leading questions because, as the ombudsman, his role is to “certify” that the SPD-IA investigations are “timely, thorough, and objective.” Thus, Gennaco’s report begs the question of whether Tim Burns may actually be undermining the objectivity of investigations that he is supposed to oversee and certify as objective.
In 2008, 2010, and 2013, fierce political battles were fought over the question of how much independence the Office of Police Ombudsman should have. (The police guild has vigorously fought to preserve SPD-IA’s monopoly on the investigation of SPD officers).
Although voters may have thought they settled this by overwhelmingly passing Proposition 1 in February of 2013, the resulting charter amendment was largely gutted by the Mayor and city council in early 2014. Burns’s main job (still) is to do what he did in the Lopez case, to observe and participate in SPD-IA investigations so that he can certify them. He now also has the option, under the new ordinance, to file closing reports on complaints after SPD-IA has completed its investigation and the police chief has made a final decision on what, if any, disciplinary actions are warranted.
Notwithstanding Tim Burns’s regrets about how he handled his review of the Amanda Lopez complaint, it is still sobering to see how the police officers involved received all the benefits of the doubts, and how the statements and evidence supporting Amanda Lopez were systematically dismissed and discredited, not just by SPD-IA, but by Tim Burns. It’s no wonder that Amanda Lopez feels that the process did nothing but add insult to her injuries.
There is also a new pathway—albeit a convoluted one—for the OPO to be asked to conduct an independent investigation into a citizen complaint. Thus, Tim Burns’s credibility as an investigator is all the more important, now, because of the increased likelihood that he’ll be asked to conduct independent investigations into citizen complaints.
The other piece that’s new with Prop. 1 is a five-member citizen board—the OPO Commission—that will oversee the work of the OPO, make recommendations, and replace the Mayor as the arbiter in disputes about the adequacy of SPD-IA investigations. Its main assignment, by charter, is to oversee the ombudsman.
When the OPO Commission met for the very first time on October 20th, it quickly became clear that a majority of the members were in a hurry to approve a new contract for Tim Burns. The rush to do so was so obvious that Assistant City Attorney Mike Piccolo politely interrupted on at least two occasions to advise the new commissioners that it wouldn’t appropriate to vote on an issue that wasn’t on their agenda for a public vote.
It was my view, and that of others, that the Commission should have taken more time and testimony to review Burns’s performance before approving a new three year contract. I also specifically asked the commissioners to review the file on Amanda Lopez’s complaint, and, again with her permission, provided the Commission with most of the information I’d shared in 2011 with Burns, prior to the 8/25/11 interview. I also shared my notes of the interview and provided the Commission with the digital recording of the interview.
But the sense of urgency to approve Tim Burns for another three year term prevailed. Despite urgings from the Center for Justice and the Peace and Justice Action League of Spokane that the Commission pursue a national search for other possible candidates for the job, the Commissioners voted 4 to 1 on November 4th to give Burns another three-year contract extension. Commissioner Rachel Dolezal (who was elected last week to be the new president of the NAACP Spokane chapter) cast the only dissenting vote.
As I’ve reported previously, Tim Burns has asserted his independence from the SPD in ways that have clearly irritated the Department. He did so in his presentations to the Use of Force Commission and continues to push policy reforms. Most recently, Burns pushed back on the refusal of SPD-IA to complete a Use of Force report in an incident involving a Spokane motorist who sustained a minor injury being physically removed from his automobile.
These actions are visible in ways that his approach to investigations is not. Whether the new Commission is willing and capable of exercising oversight on how well Tim Burns does this part of his job is now a very important and open question.
Time will tell.
