WA: Inquest into police shooting of woodcarver will answer some questions, but leave tough decisions for others

A court inquest will provide the first public airing of a Seattle police officer's fatal shooting of a First Nations woodcarver. But the jury's findings will be only an initial step toward deciding whether the officer should be criminally charged or fired.

A day after a Seattle police officer fatally shot John T. Williams, Police Chief John Diaz said he had "a lot more questions than answers."

More than four months later, the public search for answers will start Monday morning with the opening of a court inquest into a shooting that has drawn sharp community criticism and has been found to be unjustified in a preliminary Police Department review.

The eight inquest jurors won't be asked to weigh whether Officer Ian Birk is guilty or innocent of wrongdoing in the Aug. 30 shooting. But the fact-finding hearing could help shed light on one of the most controversial Seattle police shootings in years, and may determine whether Birk could face criminal charges or the loss of his job.

No inquest in King County has ever led to the filing of criminal charges against a police officer involved in a fatal shooting, which is not surprising since inquest juries generally have found that officers acted properly.

Even if jurors determine Birk acted improperly, it doesn't mean he would be likely to face murder or manslaughter charges, as some have urged. State law makes it extremely difficult to bring criminal charges against a police officer who uses deadly force.

For Diaz and the Police Department, the inquest comes amid growing criticism that officers used excessive force in several recent incidents, particularly in dealings with minorities. The shooting of Williams — a member of Canada's First Nations people — and other incidents prompted a call from community groups for the U.S. Justice Department to investigate the department's practices.

Birk's career and future will remain clouded for some time as he undergoes scrutiny by the inquest jury, prosecutors and the Police Department.

But the most immediate question confronting Birk is whether to take the witness stand in the inquest or invoke his Fifth Amendment right against self-incrimination.

His testimony could be used against him in a criminal prosecution and civil suit. Federal prosecutors also could seize on his words.

The inquest will be the first step in a cumbersome process that "can be painfully frustrating to all the parties involved," said Seattle City Councilmember Tim Burgess, chair of the council's public-safety committee. "But it's really crucial, especially in cases involving deadly force, that there be a level of transparency and accountability so everyone can see what happened."

Tragic encounter

Birk, 27, had been on the department for about two years when he stopped his patrol car at Boren Avenue and Howell Street after watching Williams cross the street holding a knife with a 3-inch blade and a piece of wood. Williams, 50, a woodcarver, was a well-known chronic inebriate who'd had regular encounters with Seattle police.

Birk got out of his car and followed Williams onto a sidewalk. Birk shouted at Williams to get his attention and ordered him three times to drop the knife. Birk fired five shots when Williams didn't respond, hitting him four times. It took about four seconds from the time Birk issued the first command to drop the knife to the first gunshot, video and audio from Birk's patrol car showed.

Police said shortly afterward that Williams had advanced on Birk with a knife. But the tone changed at a news conference the next day, when Diaz said he had questions and department commanders backed off the assertion Williams had advanced on the officer.

Some witnesses told police they didn't see Williams act in a threatening manner. Williams' family said he was hard of hearing and may not have heard the officer's commands.

An autopsy showed Williams was shot in the right side of his body, indicating he was not facing Birk. When police recovered the folding knife, they found it in the closed position.

In an October preliminary ruling Diaz and the Police Department's Firearms Review Board found that the shooting was not justified, according to sources familiar with the confidential proceeding. They will make a final ruling after the inquest.

Birk was stripped of his gun and badge after the tentative finding, and has been on paid leave since the shooting.

What prompted the finding hasn't been disclosed, and the inquest jury will not be told about it.

An attorney for the Williams family, Tim Ford, has said Williams likely closed the knife in an attempt to comply with Birk.

"He didn't have a chance to put the knife down. He was shot," Ford said at a pre-inquest hearing.

Birk's attorney, Ted Buck, says Birk faced an imminent threat and acted properly.

Difficult to prosecute

The inquest jury will answer questions related to the facts. The questions won't be decided until the testimony is concluded, likely by the end of the week. But jurors are expected to be asked whether Birk believed he was in mortal danger and whether Williams posed a threat during their encounter.

The jury's answers, which don't have to be unanimous, could provide some indication of whether the jury believes the shooting was justified.

When prosecutors study the answers, they most likely will consider whether to charge Birk with second-degree murder, first-degree reckless manslaughter or second-degree negligent manslaughter.

A second-degree murder charge would require prosecutors to show beyond a reasonable doubt that Birk intended to unlawfully kill Williams, or that Birk intentionally and unlawfully assaulted Williams, causing his death. Either would be difficult to prove.

Manslaughter requires less proof. Prosecutors must show only that reckless or negligent conduct caused a death, although they still must do so beyond a reasonable doubt.

State law shields police officers from criminal prosecution when they claim they used deadly force in self-defense, unless it can be shown they acted with malice and a lack of good faith.

In essence, if a police officer believes he was justified in using deadly force, prosecutors must overcome a steep hurdle to obtain a conviction.

"It's pretty hard to overcome," said Joan Cavagnaro, chief criminal deputy in the Snohomish County Prosecuting Attorney's Office.

Cavagnaro's office prosecuted Everett police Officer Troy Meade last year on second-degree murder and manslaughter charges after he shot a man to death during a confrontation outside a restaurant. In what was believed to be the first trial of its kind in the state, Meade was acquitted after he testified he feared for his life.

In any case involving self-defense, jurors must put themselves in the shoes of the defendant in deciding what is reasonable.

"On top of that, if the defendant is a police officer, you have this additional hurdle of showing the officer acted with malice," Cavagnaro said. Malice is defined as "evil intent," she said. "If you're having to prove an evil intent," Cavagnaro said, "that's about as high as it gets."

State lawmakers enacted the malice and good-faith language in the mid-1980s, when they put limits on when police may use deadly force. At the same, legislators adopted a higher standard for criminally prosecuting officers than ordinary citizens, apparently in recognition of the demands put on police.

"I think it's appropriately high," said Snohomish County Prosecutor Mark Roe, citing the tough, split-second decisions police officers are required to make.

Officers are allowed to make a mistake or even panic without being held criminally liable, Roe said in an e-mail and interview.

But, he added, an officer should face conviction if there is proof beyond a reasonable doubt that he acted out of anger and wasn't scared for his safety or others.

Federal rules

Federal prosecutors are likely to wait until local law-enforcement officials finish their work before deciding whether to formally look at the matter. If they get involved, they would determine whether Birk should be charged with violating Williams' civil rights.

To obtain a conviction, they would face the major challenge of proving beyond a reasonable doubt that Birk used excessive force and willfully violated the law.

The U.S. Supreme Court has said the question of excessive force by police must be judged by what is reasonable rather than perfect hindsight, noting officers often are forced to make split-second judgments in "tense, uncertain and rapidly evolving" circumstances.

Officer's job on the line

Whatever prosecutors decide, the Police Department will take its own steps.

The Firearms Review Board will reconvene after the inquest, and the department's Office of Professional Accountability could recommend disciplinary action to Diaz. The chief has the final say.

If Birk is fired or receives other discipline, he could appeal outside the department to a civil-service board or an arbitrator and possibly to the courts. The Seattle Police Officers' Guild might oppose any discipline.

Diaz's decision will be made against a larger backdrop of previous incidents last year, where officers were accused of using excessive force or offensive language.

In one incident, an officer threatened to beat the "Mexican piss" out of a prone Latino man. In another, now under criminal investigation, an officer repeatedly kicked a suspect in a convenience store. Both incidents were captured on video and widely aired on television and the Internet.

In December, the American Civil Liberties Union of Washington and 34 community and civil-rights organizations asked the Justice Department to investigate whether the Police Department has engaged in a pattern of violating the civil rights of suspects, particularly minorities.

Original report here




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