The Problem That Won’t Go Away

Taken from the Stranger, by Cienna Madrid:

The day after being slapped with a lawsuit, the Seattle Police Department capitulated by publicly releasing a controversial dash-cam video Tuesday that appears to show three officers restraining, choking, and then punching an uncooperative suspect. The video’s release after six weeks of delay is a heartening victory for transparency, albeit one that exposes yet another explosive case of police using force.

Seattle residents are left wondering why these violent incidents are still happening after the city entered into a federal court settlement to reform the police department, and why it seemingly takes a lawyer staging a political circus to get a dash-cam video.

For the city’s part, SPD spokesman Sean Whitcomb argues that the incident is proof that reforms are working: “Our chain of command saw the use of force immediately, read the report, had some questions and concerns about it, and sent this to [the department's Office of Professional Accountability] for referral,” he explains, while noting that officers also immediately wrote up the incident on the department’s blog and made the police report available online.

But James Egan, the attorney who filed the lawsuit, says that SPD dragged its feet in providing the video that his client was legally entitled to. “It shouldn’t take six weeks to fulfill a simple request,” he says.

It all started on October 6, when Leo Etherly—who has a long track record as a defendant in local courtrooms—was pulled over by three officers in the Central District on suspicion of being involved in a hit-and-run. A police report states that Etherly was resisting arrest “by pulling his hands away from the officers and tensing his muscles to resist the officer’s movements.” But Egan says that the three arresting officers “immediately escalated into violence.”

The dash-cam video shows two officers—Ronald Campbell and Jonathan Chin—holding an agitated Etherly on his back on the hood of a patrol car as another officer, identified as Officer Eric Faust, appears to choke him.

“Quit choking me!” Etherly says.

To which Faust responds, “I’m not choking you—I’m getting your head away from me,” using a police-training maneuver called “Hands on a man’s neck.” As the video continues, Faust uses his left hand to cover Etherly’s nose and mouth while cuffing the man with his right hand. Suddenly, Etherly jerks his head free and appears to spit in Faust’s direction (SPD officers charge that the spitting was intentional; Egan contends that it was a result of being choked). Officer Faust then appears to punch Etherly in the face, and as two other officers pin down his arms, Faust punches him again outside the camera’s view, according to police.

Egan says that those punches caused his client to suffer “permanent partial blindness.”

Etherly was arrested and booked into King County Jail for assaulting an officer (allegedly with his spit) and initially charged by the Seattle City Attorney’s Office with both hit-and-run and assault, both misdemeanors.

This is where the story gets complicated: Four days after the incident, Egan sent a broad public records request for dash-cam video of his client’s arrest. The next day, Egan also filed a more pointed video request for discovery of evidence with the Seattle City Attorney’s Office (meaning he requested the same video, once from SPD directly and then again from the city attorney).

On October 17, Egan received his video from the city attorney’s office, but he never received his records request from the police department. On October 22, the misdemeanor charges against his client were dropped because the police department wanted to pursue felony assault charges with the King County Prosecuting Attorney’s Office (they later declined to file the charges). Egan still pursued his video request with SPD because his copy of the video could not be disseminated, and because the department appeared to be breaking the law—and its own rules—by withholding it.

As Sergeant Whitcomb wrote on the department’s blog on April 16: “Under existing Washington state law and SPD policy, any person who is shown in police dash camera video—whether as a suspect in alleged criminal activity, or a victim of alleged police misconduct, or both—has an absolute right to request and receive video depicting their incident at any time.”

Technically, Egan already had a copy of the video, which he obtained through the evidence discovery process in defending Etherly, but Egan was not allowed to share that video until this past Tuesday, when the city released it under the public disclosure rules. You can now view the video at thestranger.com.

The city defends its practices, even though it ultimately decided to release the video, because public disclosure rules and rules for safeguarding evidence are at odds with each other. “We believe [Etherly] is responsible for a hit-and-run,” Whitcomb explains, even though there are no active charges in this case. “For us, it is still truly an open and active criminal investigation, which means the video needs to be held as evidence. That’s the view of the city, and that’s the view of the [city's] law department.”

But Jim Lobsenz, the criminal defense attorney who was representing both Egan and Etherly, says transparency should prevail in this case. “This is a clear violation of our state and federal constitutions that protect free speech,” he says.

Free speech advocates agree: “It doesn’t make sense that something that’s already been provided can’t be copied and provided again,” says Doug Honig, a spokesman for the ACLU.

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