Backlash as SPD chief reverses OPA finding in pink umbrella tear gas incident

May 13, 2021, 6:24 AM | Updated: 11:12 am

Capitol Hill, Seattle protests, police, tear gas...

Protesters in Seattle's Capitol Hill neighborhood in June of 2020. (Hanna Scott, KIRO Radio)

(Hanna Scott, KIRO Radio)

It was June 1, 2020: A crowd of thousands of protesters who had marched peacefully throughout the day over the death of George Floyd had made their way up East Pine Street to 11th Avenue on Capitol Hill, where leaders of the march had indicated they intended to complete their march with a pass by the East Precinct.

Ross: Could there be an alternative to endless protests?

Instead, they were met with a large police presence where officers had set up a line just shy of the precinct. The massive crowd remained on the other side of that line for more than an hour, with leaders in the group trying to engage in discussions with police about their effort.

At one point, an officer or two even knelt down with those protest leaders on opposite sides of the line in what appeared to be a dramatic moment to many of us embedded with the crowd that day. While there had been a few in the large crowd teetering on problematic, the leaders of the march consistently called for calm and peace.

Bicycle officers held the line most of the time, and there were moments where some of those at the front of the line on the protest side called officers names, or said other derogatory things in frustration over their refusal to engage in discussion with the group, or to let it march past the precinct as a way to put a fine point on the day. At least one man walking through the crowd had been drinking off a bottle of tequila.

At one point, a bottle could be seen flying through the air toward officers. Some at the front of the massive crowd had gotten too close to the metal barrier police had erected to create the line and it was clearly becoming unstable. Eventually, around 9 p.m., as the sun went down, bicycle officers were switched out for SWAT, SPD, and State Patrol units with gas masks and batons.

Things escalated as some in the crowd opened umbrellas that crossed the barrier – including the infamous pink umbrella that got near the face of an officer who appeared to try to grab it, prompting the owner and another person to pull it back their way. The commotion over the next several seconds led first to pepper spray being deployed, then within seconds, blast balls and tear gas, as thousands fled down Pine Street coughing and spitting as they tried to outrun the intense combination of chemicals that hovered like a cloud over the neighborhood.

No one in the crowd ever heard a warning about the tactics police were about to employ.

Who gave the orders?

The officer who made the call to deploy blast balls and tear gas was not the incident commander that day, but as the actual IC at the East Precinct had just returned from military duty, he deferred to the first officer for much of the decision making, according to a review by the Seattle Office of Police Accountability, which was done following several complaints filed against multiple officers over the SPD response that evening.

Nearly all of it was captured on live stream by Converge Media’s Omari Salisbury, as well as several others gathered on a rooftop.

In the review, OPA Director Andrew Myerberg sustained the misconduct allegation against the officer who gave the orders, stating that he had violated SPD’s crowd management policy.

“OPA assesses his decision to disperse the crowd based on whether there were sufficient ‘acts or conduct’ within that crowd to make dispersal of the entire crowd proportional to the ‘substantial risk’ that those acts would cause injury or property destruction,” Myerberg explained in the report. “OPA finds that no such substantial risk existed and, as a result, the decision to disperse the crowd violated this policy.”

He pointed to several specific reasons, including questioning claims by that officer and others in command who repeatedly pointed to intelligence they had been briefed on, suggesting there was a substantial threat to target the East Precinct to set it on fire, and how that potential threat was part of their reasoning for the choices made.

The OPA finding of sustained misconduct leaves any discipline up to the police chief, as is standard here. But in a rare move, interim Seattle Police Chief Adrian Diaz overruled Myerberg’s finding on Wednesday, leading some to question the state of any perceived progress made on accountability, and others to wonder who, if anyone, will be held accountable for the tear gassing of a neighborhood and thousands of mostly peaceful protesters.

“Seattle I have a question — are you seriously saying that no one is responsible for tear-gassing a whole neighborhood? Asking on behalf of media, peaceful protesters, and residents of Cap Hill all who got gassed,” Salisbury tweeted, shortly after Diaz had released his statement regarding the decision to change the OPA finding.

Interim Chief Diaz responds

In a letter to Mayor Jenny Durkan and City Council President Lorena Gonzales, Diaz said that the move was about fairness, pointing out that command staff decisions at a higher level were ultimately what fueled the officer’s on-the-ground decision making, and that he could not in good conscience agree with the misconduct finding for an officer when their superiors are the cause of their actions.

He wrote, in part:

My decision with respect to this case is grounded first and foremost in principles of fairness. Simply put, accepting as true for purposes of this review that the circumstances were not such that dispersion was warranted at the time, I believe the allegation, landing on the Named Employee, is misdirected. There is little question that the events of last summer generally posed considerable challenges to the Department and exposed flaws in our command structure as we attempted to manage the multiple events that were occurring simultaneously in different locations around the city.

Two decisions were made at levels of command above the Named Employee that bore directly on the Named Employee’s action and thus actions taken by officers in the field. As a simple matter of fairness, I cannot hold the Named Employee responsible for circumstances that were created at a higher level of command authority and for carrying out decisions made at a higher rank. For that reason alone, I would change the finding.

He went on to acknowledge the whole city — not just SPD, but the entire city government — was overwhelmed by last summer’s protests.

Diaz adds that while he respects the thorough investigation and hard work of Myerberg, he “must also weigh the reality that the Named Employee – even were the Named Employee in a position to be held responsible for the decisions of others at higher levels of command – did not have the same benefit of time, video compilations, after-the-fact reporting, and the interviews of many in making real-time decisions in the midst of the unprecedented circumstances at hand.”

Archive: Another night of Seattle protests ends in tear gas, flash bangs

Diaz changed the OPA’s sustained finding to “Not Sustained – Training Referral,” explaining that he is aware some may ascribe to it a sentiment or political statement he says he does not intend, and points to his record of disciplinary action up to and including firing officers and command staff in recent disciplinary decisions.

“It is my hope that just as reasonable minds may and often do differ in honest discourse, this letter will be understood as no more than my determination that, in this case, I do not believe it would be fair or principled to hold this Named Employee responsible for the allegation alleged,” wrote Diaz.

Criticism for the decision

The move has already drawn backlash from the Community Police Commission, which released its own statement:

We are concerned by Chief Diaz’s decision to overturn the OPA findings in this case, the justice denied to peaceful protesters, and the harm this decision will do to trust in the Seattle Police Department and Seattle’s entire police accountability system.

In his decision to overrule the Office of Police Accountability, Chief Diaz states that officers were overwhelmed and uses the fact that the situation was complex as justification for this police officer’s use of force, despite the fact many officers involved in that same incident did not commit similar misconduct. He says the decision to meet peaceful protesters with force was made at a ‘higher level of command’ but does not detail how he will be holding that higher level of command accountable. In doing so, he denies justice to thousands of Black Lives Matter protesters who marched against police brutality only to be met by indiscriminate police violence.

SPD has repeatedly pointed to its cooperation with ongoing OPA investigations as proof of its commitment to accountability. There have been tens of thousands of complaints against SPD over the past year, but only a handful of investigations have met the high bar OPA has set to find police officers have committed misconduct. This case met that high bar. Chief Diaz’s decision to overturn OPA’s decision is detrimental to community trust in SPD and Seattle’s entire police accountability system.

This decision illustrates why the Community Police Commission (CPC) has repeatedly called for a ban on SPD’s use of weapons like tear gas and blast balls – since even when it is clear an officer abused these weapons, SPD refuses to hold them accountable.

Finally, the CPC was not given any advance notice of Chief Diaz’s decision. We were informed through SPD’s social media post. In the spirit of partnership, notice of this decision in advance as envisioned by the Accountability Ordinance would have been appropriate.

As for OPA Director Myerberg, he offered with this response to the chief’s decision:

OPA stands by its decision in this matter and believes that its findings are supported by the evidence. However, as set forth in the Accountability Ordinance and while a rare occurrence, the Chief of Police has the ultimate right to disagree with OPA in full or in part and/or to decline to impose discipline as happened here. Given this, even though I do not concur in the rationale or result, I accept Chief Diaz’s decision as within the scope of his authority.

All of this still leaves one big question: Who, if anyone, will ultimately be accountable for unleashing tear gas on thousands of mostly peaceful protesters that night?

Follow Hanna Scott on Twitter or email her here

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Backlash as SPD chief reverses OPA finding in pink umbrella tear gas incident