OPA recommends firing 2 SPD cops for illegal activity during Capitol riot, 3 others cleared

Jul 8, 2021, 2:00 PM | Updated: 5:29 pm
Crowd of rioters, January, Epik6, Capitol, officers...
Rioters at the U.S. Capitol on January 6. (Getty Images)
(Getty Images)

When word got out in January that a Seattle police officer was among those on the U.S. Capitol grounds on January 6 for then-President Trump’s “Stop the Steal” rally turned riot, it only added fuel to recent criticism of policing in Seattle.

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Within days, it was determined that at least a half dozen SPD officers had been at the U.S. Capitol for the rally, sparking an investigation from Seattle’s Office of Police Accountability (OPA), one of three arms that make up the city’s police oversight system.

Now, six months later, the OPA has completed that investigation, specifically looking at whether those six officers violated any laws or department policy while in Washington, D.C.

In two of the six investigations, OPA Director Andrew Myerberg found the officers did in fact violate both Washington, D.C., law and SPD policy by trespassing on the Capitol grounds during the riot, and recommended those two officers be terminated.

“The FBI in early or mid-June provided us with two still images from a video that show (the two officers) were in the immediate vicinity of the Capitol,” Myerberg explained in his final report.

That was contrary to the statements the two had given, with both stating they had seen no indication the area they were standing in was off-limits to the public, and that they had not seen anyone involved in illegal or violent activity.

But Myerberg says stills from that day indicate something very different.

“They’re directly next to the wall of the Capitol Building,” he described. “In the photograph there are individuals that are scaling the wall, and scaling the scaffolding, and standing on the steps, and this would have been at the time, around 2:30 p.m. to 2:45, that the insurrection was ongoing in the Capitol.”

“That they were direct witnesses to people defiling the seat of American democracy and assaulting fellow law enforcement officers — and did nothing — makes this all the more egregious,” Myerberg added.

In addition to the still images, the OPA traveled to D.C. to interview local law enforcement and other witnesses, playing heavily into the findings in the investigation of the first two officers, specifically where they were at the time of the riot and their assertion that they did not see anyone doing anything illegal.

“They’re so close to the Capitol building, and you can see what’s going on around them. It kind of vitiates any sort of that intense argument to say, ‘well, we didn’t know [we were in a restricted area],'” he described. “You should have known, because in no way shape or form, would it be appropriate for someone to be climbing the walls of the Capitol.”

That was confirmed by the senior special agent for the Capitol Police, who told OPA investigators that anyone in one of these locations would have realized that they were standing in the midst of a full-blown riot. The agent also indicated he believed the two officers should be prosecuted for the crime of trespassing, but with so many prosecutions already in connection with January 6, resources are being focused on those who actually went into the Capitol, and on rioters who assaulted police officers.

“Both admitted trespassing but asserted that they did not know that they had done so until after the fact and, thus, that they were not culpable. OPA’s investigation, and particularly the review of video and interviews of Washington, D.C. law enforcement personnel, indicates that the accounts provided by these two officers are simply not credible,” Myerberg concluded. “The video showed that there was an active insurrection ongoing at the same time that they were in the immediate vicinity of the Capitol Building. This included rioters assaulting law enforcement officers and making forced entries into the building.”

“Moreover, the testimony of the law enforcement officers interviewed by OPA and who were present on that day, belied the officers’ recitation of events. The officers said that anyone in that vicinity would have been aware of the violence and chaos that was ongoing,” he continued.

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Myerberg also detailed larger concerns over how the actions of the two officers “served to greatly diminish public trust and confidence in both them and the Department as a whole.”

“Indeed, it is not an exaggeration to say that this case has done more damage to the perception of SPD by the community than any other case in my time at OPA,” he said.

Three officers cleared, one ‘inconclusive’

Investigations into three of the remaining four officers who were at the U.S. Capitol that day found evidence that cleared those officers of any potential illegal activity or policy violations. The investigation into the final officer was inconclusive.

From the start of these investigations, Myerberg stressed the importance of focusing on the officers’ conduct rather than their political leanings.

“Speech is protected. So, whether you believe that the election was stolen, whether you believe in being a Republican or a Democrat, that is your protected political speech, also assembly, the freedom of assembly is a fundamental right under the First Amendment, and that is also protected,” he said. “What we’re focusing on was not the assembly, not going to the rally, not exercising your right to political speech, but your conduct. Did you violate the law? Did you engage in other illegal activities, as was the case with the first two officers.”

Those two officers may face additional OPA inquiries for not being honest with investigators.

While OPA suspected a third officer may also have been guilty of trespassing, they did not find images that adequately proved the officer was aware they were in a restricted area.

The six-month-long investigation into the six officers also involved OPA ordering officers to turn over texts, emails, hotel receipts, and various other information that could corroborate exactly where they were that day and when. The Seattle Police Officer’s Guild pushed back on those requests, first asking whether officers were required to comply with those orders, then trying to circumvent OPA by getting interim SPD Chief Adrian Diaz to override the orders, which he did not do.

While several of the officers were initially reluctant to hand over the information, all but one eventually did. That one officer who declined to provide the documentation was cleared of wrongdoing as far as January 6 goes, but now faces another investigation by OPA for failing to cooperate with the investigation.

Any discipline for the two employees who trespassed at the Capitol must be determined by the chief of police. However, the Discipline Committee — which includes the officers’ chains of command, employment counsel, and the OPA Director — recommended that the employment of both officers be terminated. As the officers are entitled to due process, additional proceedings — including Loudermill hearings — still need to take place before discipline can be imposed.

Follow Hanna Scott on Twitter or email her here

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OPA recommends firing 2 SPD cops for illegal activity during Capitol riot, 3 others cleared