By Jack Mayne
A review of the Tommy Le shooting death case in Burien from 2017 shows “shortcomings” by the King County Sheriff’s Office in the way facts were collected and the evaluation of “systemic issues,” plus questions on how the deputy’s decisions were observed and reviewed.
The county Office of Law Enforcement Oversight (OLEO) on Wednesday (Sept. 2) presented a report to the King County Council Law and Justice Committee. The report identified “systemic concerns” related to the June 2017 shooting death of Tommy Le, then a 20-year old student in Burien.
The county office, OLEO, hired the OIR Group, a nationally recognized expert, to conduct the systemic review which is a process that seeks to identify ways to improve law enforcement practices and its accountability by looking at policies, training, tactics, and other factors that contribute to the outcome of loss of life.
“This review revealed that the investigation had shortcomings in fact collection, evaluation of systemic issues, and scrutiny of the deputy’s decision-making,” said Office of Law Enforcement Oversight Director Deborah Jacobs.
“The community will find the lack of accountability, learning, or remediation related to the internal review of the shooting of Tommy Le unsettling,” said Jacobs, “and OLEO hopes this review can serve as a turning point.”
The report made 29 recommendations in response to identified shortcomings in the King County Sheriff’s Office handling of the matter.
Highlights included an Inadequacy in taking statements from Involved personnel similar to those in its review of the shooting of Des Moines teen Mi’Chance Dunlap-Gittens, as well as OLEO’s prior recommendations on its policies to the Sheriff’s Office, where the OIR Group highlighted the Sheriff’s Office’s practices with respect to obtaining statements from deputies involved in such incidents.
The review said that although deputies on the scene and witness deputies were interviewed within hours of the shooting of Le, conversely the deputy who used deadly force instead was not. Conversely, the officer submitted a compelled written statement about his actions and observations a day after the incident. In addition, he was not interviewed until five weeks after the incident.
Similarly, the on-scene deputy who deployed his Taser submitted a compelled written statement a day after the incident, and no interview of him occurred until five weeks after the incident.
The OIR Group said when the involved deputy and the witness deputy interviews were finally held, neither lasted more than 17-minutes.
The report also said the internal Investigation of the incident did not adequately delve into the observations of the witness deputies and the involved deputy’s decision to use deadly force.
Also noted was the failure of the Critical Incident Review Board to consider that Le was Likely running away when shot by Sheriff’s deputies.
Likely shot running away
While the Sheriff’s investigative reports do not plainly indicate it, the non-transcribed interviews of the involved and key witness deputy indicate that Le was likely shot while running away from the deputy who used deadly force.
This running away evidence is reinforced by the statements of another witness deputy and the autopsy evidence, which established that the two fatal shots entered Le from the back.
This is the second OLEO systemic review of a shooting with the first being the shooting of Mi’Chance Dunlap-Gittens, where a young individual has been shot in the back by deputies.
In the aftermath of the incident, OLEO noted the use of unnecessarily biased language by the Sheriff’s Office in its portrayal of Tommy Le. In its first press release on the matter, Le was described by the Sheriff’s Office as “claiming to be the creator” and advancing on deputies with a sharp object in his hand, a object that turned out to be a pen.
That led to OLEO’s 2018 report by the Brechner Center for Freedom of Information at the University of Florida at Gainesville to recommend changes to the Sheriff’s Office public information policies. In a April 1, 2019 letter, the Sheriff’s Office committed to updating those policies by October 1, 2019, but to date the Sheriff’s Office has not adopted or implemented the updated policies, even though OLEO continues to discuss these policies with the Sheriff’s Office,
The Sheriff’s Office report says the it went to extraordinary measures in its investigation of the theory that Le had a knife at some point in the encounter. Deputies went to Le’s home, collected a variety of kitchen knives, and showed them to witnesses to potentially identify.
That despite no evidence that Le had taken a knife from his home or returned home to deposit a knife prior to interacting with deputies after his initial encounter with the civilian witnesses. In subsequent press releases, the Sheriff’s Office included pictures of knives taken from Le’s home that were never connected to Le on the day of the incident.
Compounding the problematic way in which this matter was handled, the Sheriff’s Office found the use of deadly force was justified. It publicly reported that even if multiple deputies were confronted in the future with an individual known only to be holding a plastic pen, the use of deadly force could well be the result.
The OIR Group recommended that the Sheriff’s Office retract the statement.
“The Sheriff’s Office’s messaging to its public and as concernedly to its own members that its deputies might well use deadly force when again confronted with a subject armed only with a pen is a remarkable statement,” said report author Mike Gennaco. “While virtually any object (including a plastic pen) can cause harm under extraordinary circumstances, the weaponry and other tools that the Sheriff’s deputies carry combined with the training they are provided should virtually always enable three on-scene deputies to neutralize any threat a person holding a pen without resorting to deadly force.”
Failure to consider size
The OLEO report said that while any analysis of the use of deadly force is expected to consider the “totality of circumstances,” the Critical Incident Review Board “did not consider that there were multiple deputies on scene and whether the significant disparity in stature between the on-scene deputies and Le provided a potential opportunity for less lethal force options.”
The autopsy report describes Le as 5 feet 4 inches and 123 pounds; each of the three on-scene deputies was considerably larger in height and weight.
Question membership on review board
Among the six voting members of the Critical Incident Review Board on whether a shooting is justified, among other questions, are a King County Police Officers’ Guild representative as well as one of the Sheriff’s Legal Advisors, the OIR Group notes. For either to have a vote on the propriety of the reviewed member’s conduct and performance is inconsistent with their customary role.
Union representatives are obligated to advocate for their members for all employment matters, the report says, including accountability and discipline. The Office of Law Enforcement Oversight (OLEO) says asking “such individuals to fairly and objectively evaluate the performance of their members, as participation in this process should entail, requires them to step out of their roles as advocates and into a quasi-judicial role. The expectation that a union representative could effectively navigate those inconsistent roles is unfair.”
The report says says legal advisor’s “usual role is captured in their title: they provide legal advice to the organization. Traditionally, a bright line is created between those providing such advice and the actual decision-makers, so as to preserve the ability of each to contribute in focused and clearly delineated ways.”
The OIR Group noted a number of other policy and practice concerns with this incident.
“This review reveals numerous areas for reform, with many overlaps from our recommendations in the review of the shooting of Mi’Chance Dunlap-Gittens,” said the group. “Failure to address these issues will perpetuate public distrust as well as the Sheriff’s Office’s ability to learn from such tragedies.”
29 recommendations were made by the study report:
- King County Sheriff’s Office (KCSO) should develop protocols to ensure that key personnel in the investigative and review process are made available to any authorized independent systemic review.
- KCSO should not use concerns about pending litigation to avoid cooperating in any review mechanism designed to improve agency performance during and after critical incidents.
- The County should continue to work towards a solution so that there is a prosecutive determination in every officer-involved shooting which results in a fatality or a wounding of an individual.
- KCSO should modify its General Orders to make clear that only officers who use deadly force are to be treated as involved officers during the criminal aspect of the investigation.
- KCSO should modify its General Orders to make clear that any lesser use of force relating to a deadly force incident should also be administratively evaluated.
- KCSO should revise its protocols to eliminate its practice of allowing deputies involved in shootings to submit a written report in lieu of a timely interview.
- KCSO should revise its protocols so that an interview is conducted of members involved in shootings prior to end of shift.
- KCSO should revise its investigative protocols so that the accounts by involved and witness members of an officer-involved shooting are videotaped.
- Before a presentation is made to the Critical Incident Review Board for consideration of an officer-involved shooting, a detective supervisor should review the interviews of involved and key witness personnel, evaluate whether the interview sufficiently addressed the key considerations of deputy observations and decision-making, and return the matter to detectives for supplemental interviews as needed.
- All interviews of involved deputies and key witnesses should be transcribed and/or summarized for inclusion in the investigative file and presentation to the Critical Incident Review Board.
- KCSO should modify its investigative protocols to ensure that any potential evidence that travels to the hospital is promptly collected by personnel who are dispatched to accompany a wounded individual.
- Detectives entrusted with investigating officer-involved shootings should ensure that the actions and decision-making of the involved deputies constitutes the focal point of investigative efforts.
- KCSO’s public release of information should emphasize both scrupulous accuracy and an objective framing of facts in light of their relevance.
- KCSO should develop written protocols instructing detectives that when they make requests of the crime lab, the results of the crime analysis should be included in the file. If the result is non-determinative or the request is withdrawn, the file should so indicate.
- KCSO should devise protocols to ensure that responsibility for reviewing a deadly force incident is understood to entail careful, holistic, and objective scrutiny of all aspects of the encounter.
- KCSO should modify its General Orders so that participation by Union representatives and Legal Advisors in the Critical Incident Review Board is limited to a non-voting role.
- KCSO should amend its General Orders so that the Critical Incident Review Board is instructed to opine on the following question: Was the use of force justified or unjustified in light of the totality of the circumstances, including the tactics and decision-making that preceded the force?
- KCSO should devise protocols to ensure that any recommendations accepted by the Use of Force Review Board (and endorsed by the Sheriff) are implemented by: Assigning the responsibility of implementation to specific KCSO personnel.Delegating a KCSO command staff member the responsibility of ensuring effective and timely implementation.
- KCSO should revise its protocols to eliminate the participation of involved personnel in the Use of Force Review Board process.
- KCSO should routinely assign a Critical Incident Review Board member the responsibility to provide detailed feedback to involved personnel regarding decision-making or tactical issues raised during the Critical Incident Review Board meeting, as well as to offer a forum for deputies to share their experience of the review process.
- KCSO should develop mechanisms designed to openly discuss “lessons learned” from any deadly force incident as a means of enhancing the ability of all members to meet future challenges.
- In cases involving multiple deputies on-scene, KCSO’s Critical Incident Review Board should always consider whether the deputies articulated any plan prior to engagement and consider that fact in its “totality of circumstances” deadly force analysis.
- KCSO’s Critical Incident Review Board summary should accurately depict the situation faced by its deputies when the decision to use deadly force is made, and refrain from characterizations or omissions that could be misleading.
- KCSO’s Critical Incident Review Board should articulate any disparity in size and stature between its members and the subject and consider that factor in its “totality of circumstances” evaluation.
- KCSO’S Critical Incident Review Board should not justify the use of deadly force with conclusory statements in lieu of performing an exacting threat level analysis.
- KCSO should re-evaluate and consider retracting its public statement that, if multiple deputies are confronted with an individual known only to be holding a plastic pen, then the deployment of deadly force could well be the result.
- Whenever an investigation involves multiple rounds and inadvertent collateral damage, KCSO should consider their existence in evaluating deputy performance, including the asking of relevant questions about backdrop and target acquisition.
- Whenever an investigation finds that stray rounds have entered into an occupied structure, KCSO’s review process should consider whether its response to that event appropriately considered the welfare of those occupants and whether any damage suffered by the residents was appropriately resolved.
- KCSO should devise protocols that require its Critical Incident Review Board to identify and formally recognize exemplary conduct by its personnel.