Report 1 Dissenting (2-26-03)

Summary of the Report

By Morgan Thornberry, DFRB Chair

The following is a report that I am issuing as a dissenting member of the Deadly Force Review Board.

I hold that while The Evergreen State College Department of Police Services Standard Operating Procedures (SOP) are ambiguous in some areas, we are still able to identify the intent or spirit of the SOP and make decisions based on this (if not those unambiguous and explicit areas of SOP).

From my review of the cases and College policy, I determined that the drawing of firearms by officers was not justified and necessary under the circumstances, and furthermore was not in compliance with College policy. While the question of whether drawing of firearms was justified and necessary appeals largely to standards of reason and good judgement, I have also cited section 10.04.00 of the SOP in my decision. In my answer to the question of whether the drawing of firearms was in compliance with College policy, I draw from section 10.04.00 again. Reporting by involved officers (Adkins, Perez, and Neely) was not in compliance with the SOP. The SOP does not state that Chief Huntsberry had a responsibility to report such a use of force to his supervisor (though this responsibility can be inferred from the very existence of the DFRB).

There are a few things about what happened in these cases and in the aftermath that are troubling. First, that Chief Huntsberry and Vice President of Student Affairs Art Costantino authorized the use of an undercover officer in order to arrest small time sellers of marijuana. I understand that police officers cannot turn their cheek to unlawful actions, but in this case Police Services sought out the dealers with an undercover officers. I would argue that this is not in line with the principle of community policing, to which Police Service is subordinate. The question of whether we want undercover officers needs to be posed to the community as a whole.

Second, Chief Huntsberry, aware that felony search warrants were to be served in the dorms, and aware that academy training teaches officers to draw firearms in serving felony search warrants, did not discuss with involved officers before the search whether they would draw firearms, nor under what circumstances they should draw firearms. Furthermore, after the service of the warrants and after he read reports that did not mention a drawing of weapons, Chief Huntsberry did not look into whether weapons were drawn. He said in an interview with the DFRB that while reading the reports, the question did not occur to him. (It was not until after a student informed him that firearms were drawn that Chief Huntsberry launched an investigation.) This is not acceptable. Especially as we approach the 24/7 arming of officers, our community needs our Chief of Police to be attune to our concern with firearms being used safely and responsibly by police officers.

Lastly, during the investigation by Chief Huntsberry, Officer Adkins who was supervising the warrant service, said that a discussion on whether to draw firearms did not take place because it was "understood" that firearms are drawn in making a felony drug warrant service - like "putting on socks" (see Director's Investigation for Deadly Force Review Board). Given community concern about the safe and responsible use of firearms by police, and given the principle of community policing under which Police Services operates, this kind of thinking should not exist among our officers. Drawing guns in the dorms-or anywhere on campus-is not like putting on socks. I believe that the community wants officers to put serious thought into drawing firearms before they do so.

26 February 2003

INTRODUCTION

The Deadly Force Review Board is charged with the task of examining all incidents where a firearm is drawn, discharged, or displayed in a threatening manner, or when any other type of deadly force is displayed or used by a Police Services officer. It is the responsibility of the Board to determine if such threat or use of deadly force is (1) accidental or intentional, (2) justified and necessary under the circumstances, (3) in compliance with college policy, and (4) indicative of a need for a change in the College's policy regarding training and/or Standard Operating Procedure (SOP).

CASE BACKGROUND

Because of the similarity of the two cases, I will summarize and address them together. The incidents occurred on the 23rd and 27th of October 2002. Police Services was conducting undercover information gathering in order to make an arrest of a dealer of hallucinogenic mushrooms. Corporal Neely, along with Officers Adkins and Perez, assumed the task of coordinating the undercover operation and Officer Goebel served as the undercover officer. As an undercover drug buyer, Officer Goebel had to gain credibility in the campus drug scene before he could make a buy from the mushroom dealer, which was necessary to making an arrest. To these ends, Officer Goebel made two separate purchases of marijuana ($40 in the first case, $20 in the second) from two separate subjects. Felony search warrants were issued and served on the dorm apartments of the two sellers. Prior to the actual warrant service, an entry plan was discussed that included the sequence of officer entry and the areas of responsibility once the entry had been made. The drawing of weapons was not discussed. Officers Adkins and Perez and Corporal Neely entered the residences with weapons drawn and held at the "low-ready" position: firearm pointed downward in front of the body at a thirty to forty-five degree angle with the trigger finger outside the trigger guard (see Director's Investigation for Deadly Force Review Board, 20 November 2002). After the residence was secured, firearms were reholstered.

None of the officers named above noted in their reports of the two incidents that firearms were drawn. In his initial review of their reports, Director of Police Services Steve Hunstberry did not inquire into whether firearms were drawn in either of the incidents. Chief Huntsberry was prompted to probe the matter after a conversation with Cooper Point Journal reporter Brent Patterson on or around 29 October in which Mr. Patterson mentioned a rumor that firearms had been drawn on both occasions. According to Chief Huntsberry, on the 30th or 31st of October Officer Neely verified that officers made the warrant entry with firearms drawn. (Officer Adkins verified the same later, on 19 November). Chief Huntsberry immediately reported his findings to Vice President of Student Affairs Art Costantino, the vice president in charge of Police Services (see Director's Investigation for Deadly Force Review Board, 20 November 2002).

FINDINGS

I have separated these incidents into two parts; first, the question of whether drawing of firearms by Officers Adkins and Perez and Corporal Neely was (1) accidental or intentional, (2) justified and necessary under the circumstances, and (3) in compliance with College policy and the SOP, and second, whether Officers Adkins and Perez, Corporal Neely, and Chief Huntsberry were in compliance with College policy and the SOP in regards to reporting the drawing of firearms.

In responding to my charge as a member of the Deadly Force Review Board, I want to first address the question of whether the Officers' drawing of firearms constitutes a use of Deadly Force. Before proceeding, it must be clear that such drawing of firearms (without the subsequent discharge of the firearms) constitutes a use of Deadly Force, and thus can be addressed by sections of The Evergreen State College Department of Police Services Standard Operating Procedure (SOP) that pertain to the "use of Deadly Force".

"Deadly Force means the intentional application of force through the use of firearms or of any other means reasonably likely to cause death or serious physical injury" (SOP, section 10.01.00) [Emphasis added.]. The "use" of a firearm is not limited to firing, but rather includes drawing the firearm. An officer draws a firearm in order to use it as a threat to achieve a desired effect, and officers should draw their firearms only in those circumstances in which there is reasonable cause to believe that it may be necessary to fire the weapon.

Moreover, the SOP and Charge to the Deadly Force Review Board classify the act of drawing a firearm as an instance of the use of deadly force. The Use of Force Continuum (see the SOP, section 10.02.00) classifies "firearms" under the last stage of the continuum called Deadly Force, and the Charge to the DFRB states that the Board is to review all incidents where "a firearm is drawn [Â…] or when any other type of deadly force is displayed or used" by Police Services Officers. Both documents classify any threatening use of firearms as a use of deadly force. In those places where the SOP does not explicitly classify drawing a firearm as a use of force, it can be inferred from the overall tone of the SOP and the Charge to the DFRB that the spirit of the SOP is to say that drawing a firearm constitutes a use of deadly force.

Therefore, in both of the incidents, officers who drew their firearms were using deadly force and sections of the SOP pertaining to the "use of deadly force" are applicable.

Applying College policy and the SOP on the use of deadly force, I have made the following conclusions regarding the drawing of firearms in both incidents:

(1) The drawing of firearms was intentional.

(2) The drawing of firearms was not justified and necessary under the circumstances. The Officers drew their firearms not because the specific circumstances of the cases necessitated it, but rather because they (mistakenly) believed that the SOP allowed for it and because academy training taught officers to draw firearms in the service of all felony search warrants. Officer Adkins, who was supervising the warrant service, offered that it is "understood" that firearms are drawn with making a felony drug warrant service - like "putting on socks" (see Director's Investigation for Deadly Force Review Board, 20 November 2002, p. 6).

Officer Adkins' statement does not accurately reflect the SOP on the Use of Deadly Force, but what's more important is that the statement reflects the lack of consideration that officers gave to the specific circumstances of the cases before drawing firearms. As mentioned in the description of the cases above, Officers Adkins and Perez and Corporal Neely, in their plans for the warrant service did not discuss whether firearms would be drawn. (Nor did Chief Huntsberry, who was aware that the warrant was to be serviced, discuss it with them.)

The fact that drawing of firearms was not discussed prior to the service of the warrant combined with Officer Adkins' statement on "putting on socks" leads one to believe that the Officers drew their firearms not because the specific circumstances of the cases necessitated it, but rather because (1) they (mistakenly) believed that the SOP allowed for it and, (2) because academy training taught them to do so. Section 10.04.00 states: "The decision to apply Deadly Force in a situation should not be based solely on the fact that Department regulations and state laws allow its use. Good judgment must always dictate reasonable and necessary action." The Officers violated this section of the SOP because there was no prior discussion on whether it was reasonable and necessary to draw firearms in these circumstances.

In retrospect, one might say that it was reasonable and necessary to draw firearms in serving the warrant because the Officers did not know who or what was on the other side of the perennial door. One might reason that because there were multiple unknown factors, erring on the side of safety, the Officers drew their firearms. I acknowledge that in these cases there were multiple unknown factors before Officers entered: Who was inside? Did any of those subjects inside have a history of violence? Own firearms or other weapons? Significantly and unfortunately, the Officers made no known attempt to clear up these unknown factors. If the Officers were serious about upholding the standard that firearms should not be used unless necessitated by circumstances, they would have made an effort to answer some of these unknown factors - to know the circumstances, in order that the use of firearms could have been determined by necessity, or alternatively, could have been avoided all together.

One might object that the felony sale of narcotics is cause enough to necessitate the use of firearms in securing the scene, implying a correlation between the felony sale of narcotics and the possession of deadly weapons by the sellers. But it is important to recall that what the Officers knew was that a mere $20 and $40 of marijuana had been purchased on two occasions from suspects (and the Officers made no known attempt to determine if the sellers dealt on a larger scale). I would argue that there is scant, if any evidence to connect the sale of marijuana on such a small scale to the possession of deadly weapons by its sellers. Member of the Deadly Force Review Board and Thurston County Sheriff's Officer Neil McClanahan affirmed my sentiments when in addressing the Board he said that evidence to show such a correlation would probably not exist because it is anomalistic for a department to make such a small-scale drug bust. (Officer McClanahan, on a different occasion went on to say that if his department were to make such an unlikely bust, that they would most likely use a "knock and talk" technique. Using a knock and talk approach, an officer would knock on the suspect's door, say that there is evidence that the suspect is selling marijuana, and that the suspect can invite the officers in to search or that they will return with a search warrant. This is an alternative that could have been employed - or at least considered - by the Officers involved in the incidents.)

(3) The drawing of firearms was not in compliance with College policy and the SOP. Section 10.04.00 allows that officer may use deadly force to:

• Protect themselves or others from what they reasonably believe to be an imminent threat of death or serious bodily injury.
• Arrest or apprehend a person for a felony.
• Prevent escape from the Officer under the conditions of section 10.04.00.

In these cases, it was not reasonable to believe that an imminent threat of death or serious bodily injury was posed by the subjects inside the dorm apartments. The claim that the felony sale of narcotics correlates with the possession of deadly weapons by its sellers, plus the assertion that Officers didn't know who or what was on the other side of the door, does not add up to an imminent threat of death or serious bodily injury. This is so because, as discussed in section (2) above, there is not evidence to support the connection between a $40 sale of marijuana and possession of deadly weapons by its sellers. And, also as discussed in section (2), the Officers, had no reason to believe that an imminent threat existed, as they did not conduct any known research into such a question. Had the Officers truly believed that there was an imminent threat on the other side of the door, I expect that they would have researched who and where the threat was likely to come from, what kind of threat it was likely to be, what innocent bystanders would be in the apartment, an so on.

The SOP allows for the use of deadly force to prevent escape from an officer, however, this was clearly not the circumstances of these incidents. The last remaining allowance for the use of deadly force is in order to "[a]rrest or apprehend a person the Officer believes has committed or has attempted to commit, is committing, or is attempting to commit a felony" (SOP, section 10.04.00). Were it not for the further conditions entailed in this subsection, the use of deadly force in these incidents would be in compliance with the subsection.

The subsection immediately goes on to state:

In considering whether to use Deadly Force under this subsection, the Officer must have probable cause to believe that a subject, if not apprehended, poses a threat of serious physical harm to the Officer or to others (SOP, section 10.04.00). [Emphasis added.]

This section indicates that the officer may use deadly force in order to effect an arrest for a felony, but that there is a necessary consideration to be made; there must be probable cause to believe that the subject, if not apprehended, poses a threat of serious harm. In these incidents, there was no probably cause to believe such threat existed.

(4) Involved officers were not in compliance with SOP on reporting, while Chief Huntsberry (technically) was. SOP states: "In cases of lesser uses of force that may have or could have caused injury, the Officer will promptly notify a Supervisor and will submit an internal written report on the incident prior to going off shift. These requirements apply regardless of whether an incident in which force was used results in actual injury" (Section 10.07.00). In these cases, while there was no actual injury, the use of force was used. Therefore, Officers Adkins and Perez, and Corporal Neely had an obligation to submit a report on the use of force. The three officers did submit reports, but the reports did not mention the use of force.

Chief Huntsberry was technically in compliance with the SOP because section 10.07.00 Reporting Use of Force only calls upon involved officers to report to their supervisor (Director of Police Services), but does not state that the Director must report to his supervisor, the Vice President in charge of Police Services. While the SOP doesn't state such a responsibility on the part of the Director, the spirit of the SOP and the Public Safety DTF's 1996 approval of a "permanent community review board that will review [Â…] every instance in which a Public Safety officer draws or uses a firearm" (Final Report of the Public Safety DTF, 24 May 1996), clearly requires that the Vice President in charge of Police Services, whose responsibility it is to convent the Deadly Force Review Board, be notified of the incident, presumably by the Director. The Chief, though, was unaware of the drawing of firearms, so was unable to report to his supervisor on the matter.

Chief Huntsberry knew ahead of time that the warrants were going to be served. Having been aware that academy training included teaching the drawing of firearms in the service of felony search warrants, it is reasonable to think that Chief Huntsberry should have discussed the question of drawing firearms with involved officers before they executed the warrant. He did not.

After the service of the search warrant, and even after reading the reports of involved officers, Chief Huntsberry did not look into the question of whether firearms were drawn. Knowing that there was the possibility firearms might have been drawn-and that if firearms are drawn, the DFRB must be convened, and noting that it wasn't mentioned in any reports, Chief Huntsberry should have investigated the matter immediately. After a student reporter made him aware of the use of firearms in these incidents, Chief Huntsberry, to his credit, immediately launched an investigation into the matter. Still, he should have been on top of the firearm issue from the very beginning.

(5) The incidents are indicative of a need for change in College policy regarding training and SOP.

Standard academy training teaches officers to draw their weapons when executing a felony search warrant. Training for officers at Evergreen needs to teach officers to consider whether there is probably cause to believe that a subject poses a threat of serious and imminent physical harm before they draw their firearms, and also that drawing firearms without making such considerations is not in compliance with the principle of community policing.

SOP needs to be changed in the following areas:

• Section 10.01.00 "Definitions". The definition of deadly force needs to be changed to more clearly define deadly force as drawing a firearm, as well as firing a firearm. (Alternately, if the community so decides, drawing a firearm and firing a firearm may have two distinct terms, but subsequently should each have a set of guidelines for when the action is necessary and justified.)
• Following this clarification in the definition, SOP needs to include unambiguous guidelines for drawing firearms. What considerations must an officer make before he draws his firearm?
• Section 10.07.00 "Reporting Use of Force". This section already states that officers must report uses of force that don't result in actual injury, but the standard should be made more explicit. It should state the officers must report all instances of drawing a firearm, and that all instances in which a firearm is drawn on a person must be forward to the Chief of Police Services, and then from the Chief to the Vice President in charge of Police Services.
• Section 10.02.00 "Use of Force Continuum". Stages 8 and 9 of the continuum, respectively "threat of deadly force" and "deadly force", need to be more clearly defined.

Section 10.03.00 "Officer's Acknowledgement of Policy", states that

"All officers must receive and demonstrate an understanding of this
chapter [Chapter 10.00.00 "Use of Force"] before they are authorized to carry a firearm on duty."

I recommend that this compliance with this policy be a first priority for Police Services. Considering the ambiguity and lack of awareness surrounding the use of force in the incidents for review, it may be necessary to conduct formal or informal supplemental training for officers on Chapter 10.00.00 "Use of Force".

Signed,

Morgan Thornberry