OFFICE OF THE MASON COUNTY PROSECUTING ATTORNEY PO. BOX 639 MICHAEL K. DORCY 521 N. FOURTH STREET MASON COUNTY PROSECUTOR WASHINGTON 98534 PHONE: (360) 427-9670 ext. 417 - November 13, 2017 FAX: (360) 4217754 Sgt. Cameron Simper Thurston County Sheriff ?s Of?ce 2000 Lakeridge Drive SW Olympia, WA 98502 Re: TCSO #l7u002686 SPD To Whom It May Concern: On July 5, 2017, the above?referenced ?le was delivered to my of?ce for consideration of criminal charges against two Shelton Police Of?cers, Of?cer Justin Doherty and Of?cer Matt Dickinson. The investigation arose out of a May 25, 2017 contactthat the of?cers had with Nicholas E. He?in at approximately 0140 hours at 218 3rd Street in the city of Shelton. Detective King therein opined that the force used by Of?cers Doherty and Dickinson was not necessary and therefore not lawful, and thus constituted the crime of assault. Each of?cer was wearing a ?body?cam? at the time of this contact, which preserved video and audio recordings of the contact. Those video recordings constitute powerful evidence, and after reviewing and studying those video recordings, along with the investigation ?le submitted by your agency, we anticipated that criminal charges may be appropriate against one or both of the involved of?cers. However, since an expert in police use?of?force was not consulted as a part of the initial investigation, and since police training and police use?of?force are very specialized areas outside the experience of most civilians, we determined that it would be responsible and prudent to solicit a professional review and opinion from an expert witness in the area of police training and use-of?force before proceeding with criminal charges. We considered this to be essential in light of the fact that, in addition to the elements of the crime of assault, the prosecution bears the burden of proving beyond a reasonable doubt that force used in an assault case was unlawful. I first reached out to Chief Deputy Ryan Spurling of the Mason County Sheriff?s Of?ce for a recommendation, since he was the use-of?force instructor for the Washington State Patrol for many years, and because he has testi?ed multiple times as an expert witness as to police training in use-of?force and he continues to be recognized across the State as an expert in this ?eld. Chief Spurling recommended Robert Bragg, Defensive Tactics Program Manager for the Washington State Criminal Justice Training Commission. I then reached out to Tom McBride, Executive Secretary for the Washington Association of Prosecuting Attorneys, for a recommendation in light of his connections to the other elected prosecuting attorneys and other law enforcement agencies. After reaching out to the Washington State Patrol Academy and the Criminal Justice Training Commission and other authorities, Mr. McBride also recommended contacting CJ TC, as the state agency responsible for instructing and training police of?cers in the use of force, to provide a professional review of the use of force by these of?cers in light of accepted police training and tactics and to, if called upon, provide expert testimony in court. In order for an expert to do the type of review that we needed, we needed to supplement your investigation ?le with training records and other materials in the possession of the Shelton Police Department. In conjunction with a thorough review of the ?le, we worked on obtaining the necessary supplemental materials from the Shelton Police Department. By early September we received clearance from CJTC for Mr. Bragg to provide the review that was essential for a complete review of this incident, and had obtained the necessary supplemental records. On September 15, 2017 we provided the TCSO investigative ?le, along with training records for the involved of?cers provided by the Shelton Police Department, to Mr. Bragg for the purpose of his review and professional opinion. Again, in light of Detective King 3 assertions and the shocking nature of the video ?les, we anticipated an opinion from Mr. Bragg that would be consistent with criminal liability by one or both of?cers. On October 27, 2017 Mr. Bragg provided a written opinion regarding his review of the use of force by the of?cers in this case, and subsequently responded to follow-up questions from me regarding his report on November 7, 2017. Copies of those documents are enclosed with this letter for your reference and your ?le. In addition to reviewing Mr. Bragg?s written review and opinion in this matter internally, I have also had an opportunity to review it with other individuals locally with expertise in the area of police training and police use?of-force, who have expressed agreement with Mr. Bragg ?s process and outcome. I have also had the opportunity to re-review your TCSO investigative case ?le in light of Mr. Bragg?s input. The context of this case involves use of force by police of?cers, and a police of?cer is authorized to use force when that force is ?necessarily the performance of a legal duty.? RCW And furthermore, as used in this context, ?Necessary means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.? RCW 9A.-16.010. According to their website, Community Lifeline is a nonpro?t agency that provides basic services of food, emergency shelter and showers for the local homeless population. The emergency shelter is open any night when the wind chill hits 35 degrees or below from 8pm to 8am. 0n the night of May 24-25, 2017 the emergency shelter was closed. An agent of Community Lifeline (identi?ed in your reports as ?Mark?, security manager) con?rmed to TCSO investigators that ?homeless people are not supposed to be sleeping on the property at night? and November 13, 2017 MICHAEL K. DORCY Page 2 of 4 Mason County Prosecuting Attorney 521 N. Fourlh 1 PO. Box 639 Shelton, WA 98584 Ph: 360-427-9670 I Fax: 360-427-7754 that ?the Parish will cooperate with the Shelton Police Department with the removal of homeless people found on the property at night to include pursing criminal charges.? Both Of?cer Doherty and Of?cer Dickinson report multiple conversations with Mark where he has asked that they contact and remove people from the property when Community Lifeline is closed. The evidence supports the legal authority of the o?icers to enter the Community Lifeline property with reasonable suspicion that Mr. He?in may be committing the crime of trespass, and therefore they had legal authority to initiate contact with him there. The of?cers repeatedly identi?ed themselves from the ground, and repeatedly requested that Mr. He?in come down from the landing at the top of the stairs. Once at the top of the stairWay, the officers continued to identify themselves while shining a bright ?ashlight at him and loudly giving verbal commands. Officer Doherty also kicked Mr. He?in?s foot to try and elicit a reSponse. Upon closer inspection of the video, Mr. He?in does appear to speak, although it?s not decipherable, and the video does not contradict Officer Doherty?s claim that Mr. Heflin was looking at him. The officers repeatedly ordered Mr. He?in to show his hands, and Of?cer Doherty ultimately warned Mr. He?in that he?d be ?pepper sprayed? if he did not show his hands. At that point Mr. He?in appears to rotate his torso and moved his left hand up near his head. It was then that Officer Doherty applied the oleoresin capsicum spray. Although the officers placed themselves into a tactical disadvantage on this dark exterior stairway contacting an unknown subject and the propriety of that tactical decision may be in question, nonetheless that was the environmental circumstance in which they found themselves when Mr. He?in rotated away from O?icer Doherty and moved his left hand toward his head. We do not believe that the evidence is suf?cient to prove, beyond all reasonable doubt, that Officer Doherty perception of this movement as ?furtive? or his response to this perceived furtive movement was unreasonable. Next, after a moment where he appeared to begin complying with the of?cers? commands to put his hands behind his back while on the ground, Mr. He?in came up from the ground to his knees. Despite the emotionally shocking nature of the video evidence in this case regarding what followed, it is the opinion of Robert Bragg, Defensive Tactics Manager for CJTC, that the decision of the of?cers to tackle Mr. He?in back to the ground after he came to his knees was reasonable under these circumstances, and not inconsistent with appropriate police training and tactics. Once they tackled him back to the ground, what followed thereafter was an unpredictable and frenetic struggle that lasted for several minutes and required help from other officers to gain control of Mr. He?in hands, during which multiple witnesses describe Mr. He?in?s actual resistance to the officers? attempts to secure him. As you are aware, there are statutory guidelines to the exercise of a prosecutor?s charging discretion. Those guidelines provide in part, ?Crimes against persons will be ?led if suf?cient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact ?nder.? RCW November 13, 2017 - MICHAEL K. DORCY Page 3 of 4 Mason County Prosecuting Attorney 521 N. Fourth! PO. Box 639 Shelton, WA 98584 360-427-9670 I Fax: 360-427-7754 ?Lawful use of force? is a defense to the crime of assault, and clearly foreseeable on facts such as these. And, as stated above, unlike other af?rmative defenses, in an assault context the burden lies with the prosecution to prove beyond all reasonable doubt that any force used was unlawful. State v. Arth, 121 Wn.App. 205, 87 P.3d 1206 (2004); State v. Graves, 97 Wn.App. 55, 982 P.2d 627 (1999). Nothing in this letter is intended to convey any opinion from my office with respect to the wisdom of certain tactical or strategic decisions made by Of?cer Doherty or Officer Dickinson during this contact or possible violations of Shelton Police Department policies. However, it is our considered opinion that the burden of proof cannot be met to sustain criminal assault charges beyond all reasonable doubt in court, and it is therefore my decision not to ?le criminal assault charges against Justin Doherty or Matt Dickinson for their actions this contact. .m?f - aka. 3 Mason County Prosecuting Attorney Enclosures: Robert Bragg Use?of-Force Review Robert Bragg Follow-up November 13, 2017 MICHAEL K. DORCY Page 4 of 4 Mason County Prosecuting Attorney 521 N. Box 639 Shelton, WA 985 84 Ph: 360-421-96201?Fax: 360427-2254 Heflin l, Robert Bragg of the Washington State Criminal Justice Training Commission, was asked by Mason County Prosecutor Michael Dorsey to review the Use Of Force (UOF) on Mr. Nicholas Heflin on the night of 5/25/2017 by Shelton Police Department (SPD) Officers Doherty and Dickson. The primary focus of this review is in regard to the statutory issues, authority and necessity of force application by State rules, and not the constitutionality of force application i.e. seizure under the Fourth Amendment within the 9th Circuit Court. Therefore the typical constructs surrounding excess force associated with governmental intrusion, quantum of force, and the reasonable officer standard will not be included in this review. The goal ofthis review is to compare the relevant processes and charging recommendations employed by the Thurston County Sheriff? 5 Office Detective King to those processes and principles taught to Basic Law Enforcement Academy students. i, along with several current and former law enforcement officers who are trained and instruct in the areas of Patrol Tactics, Criminal Law, Criminal Procedures, Control and Defensive Tactics, and Firearms collectively reviewed all or parts of this incident. The final report which i wrote is a compilation of our opinions. it was not our intent to determine guilt or innocence not to attribute motive or intent of the officers but to examine only the relevant facts and statements in the light most favorable to the involved officers. For the sake of brevity the materials provided for review and facts of the entire case will not be recited here. In analyzing the UOF by SPD officers: 1. It is the agreement of at least 12 veteran experts in law enforcement that lacking a written agreement for TRESPASS the self?initiated stop of 5/25f17 would be initially treated as a welfare check and secondarily as a criminal violation. However given the environmental hazards, prudent officers would have approached the individual with caution for a welfare check but prepared for what, if anything, develops from that encounter. 2. Officers had Reasonable Suspicion to investigate (and likely Probable Cause for a citation) for trespass based on the stipulation that a verbal agreement from janitorial staff existed (which the officers claim to have had). 3. Officers had the authority (9A16.020) to detain and use (necessary) force during the investigation. 4. While we were unable to confirm from the video, for our analysis we accepted Officer Doherty?s claims that Mr. Heflin was awake and oriented and as a result was refusing (passively resisting) to comply with the lawful orders to show his hands (as part of an investigatory contact). 5. Officers? claim a fear that Mr. Heflin may have been accessing a weapon in his waist area and therefore presented an immediate threat. It is reasonable given their experience and training to expect (perception) that such an individual may have a weapon. a. We could not confirm via video any attempt by Mr. Heflin to access a weapon prior to the use of oleoresin capsicum spray (OCS also known as pepper spray). b. Neither I nor anyone who was part of this review could see any attempt to perform a frisk prior to the use to determine if such weapons exited in an area subject to a frisk. 6. It appears that the goal of the OCS was to deal with the perceived threat and to force Mr. Heflin to display his hands to ensure no weapons were accessed and not to overcome active resistance. 7. We were not able to find where the officers informed Mr. Heflin that he was under arrest and clarifying that he was required to follow their lawful commands. Heflin In considering the point raised by Det. King asserting that the force used by SPD officers was unnecessary we analyzed the RCW 9A.16.010 definition of "Necessary" that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended) as by bifurcation into the below two prongs. 9. Prong one; ?no reasonably effective alternative to use of force appeared to [at the time the force was usedThe officers had reasonable suspicion that a crime was being committed and are expected to use reasonable means to ensure their safety including the use of force during an investigation. b. It is clear from the video that the officers tried to arouse Mr. Heflin by shouting, bright lights and impacting Mr. Heflin?s foot prior to the use of additional physical force. c. The officers clearly had the authority and the need to use some level of physical force to deal with the perceived resistance and threat. cl. Therefore we believe the situation at this point met the criteria of prong one. Prong two,- the amount of force was reasonable to effect the lawful purpose intended?, is in question. a. We were unable to find where the Officers have explicitly explained whether they considered alternatives to the use of OCS and that such alternatives would have been ineffective or were less safe for the officers due to the environment. b. We found no statutory guidance regarding suggesting that OCS use on a passive resistor is considered excessive. (See footnote c. We found no statutory guidance for "reasonable? except from a federal standard, which we felt was inappropriate given that this is not a 4th Amendment analysis. d. Jury instructions were unhelpful in clarification. It is unknown the of?cers" understanding of the level or quantum~of?force that OCS constitutes in their policy (if 308.?) and the required violator resistance needed for its use. (Knowledge of this could speak to their intent and whether they knew they were acting excessively and potentially in an unlawful manner. See footnote We chose not to analyze the post?spray UOF because we felt that was not the pivotal issue, instead asked two questions below. The first question we considered: had the OCS application not been excessive pre Young decision and accepting that the initial use of force was ignored by Mr. Heflin] would then the resultant force application by the officers to Mr. Heflin?s reactionfresistance subsequent to the OCS be considered unlawful? a. Mr. Heflin was still obligated to comply with the officers? demands (there is no longer a right to resist an unlawful arrest) and his lack of cooperation could reasonably be perceived as resistance. b. Mr. Heflin was actively uncooperative and officers are not expected to know the reasons behind such active resistance. c. Given the nature of the resistance perceived and described by the officers, and the environmental considerations, their use of force could be considered necessary. cl. Therefore the actions by Mr. Heflin subsequent to the use of OCS and the resulting force response to that perceived resistance by the officers would not likely be considered unlawful on its face. The second question we considered was, if the initial use of OCS was excessive and or unnecessary (and therefore unlawful based on the definition of necessary) does that transform 2 15. 16. 17. 18. Heflin the remaining force application unlawful and consequently transform the force application into an assault in the degree? (again not applying federal standards associated with 4th Amendment violation). 3. Based on the above it was agreed that this UOF was based on the perception of active resistance by Mr. Heflin. b. We felt the arguments regarding the tactics used to deal with such resistance are based on factors noted in Graham and best left to a Federal Court inquiry. It is a consensus of several experts in the area of UOF that the only UOF that could be unequivocally considered unnecessary [statutory violation) would be the use of OCS. Therefore, should you proceed with assault charges; we suggest that an assault in the 4th degree (due to the low level of injury and suffering commensurate with 0C5) would be the appropriate charge and not the post-spray behavior of the officers. We believe that Thurston County errored by not fully analyzing the contact, reaching conclusions not supported by facts, and intermingling Constitutional and Statutory issues in their suggestion for 2nd Degree assault charges. if all excessive use of force cases followed the logic applied by Det. King, all officers found to have violated an individual?s 4th Amendment protections against unreasonable force should be charged with some form of assault at the State level. Ultimately we believe that despite the egregious appearance of this incident, the use of OCS and the post-spray use of force should be addressed as a 4th Amendment issue and not as a Statutory issue. The remedy for Mr. Heflin is best left as a civil matter to be decided in the federal court while the behavior of the officers should be addressed administratively as a matter of policy compliance [or lack thereof] as opposed or in addition to criminal charges. Footnote 1: While the initial UOF could be found to be unconstitutional, (0C Spray is considered to be an intermediate UOF in the 9?1 Circuit Court, similar to TASER darts and baton strikes) we currently lack an explicit statement or other compelling evidence that the officerlsi fully understood Youno and its implications. A statement by Dohertv to Det. King indicating that he had used 0C5 on others who have refused to show their hands, suggests he felt OCS was a low level of force application. We were unable to find compelling evidence that their belief and or training regarding OCS use and its level of force (low level or intermediate) had been documented. (Policy. power points and DTB do not seem to illuminate the specifics of the Youna decision] Footnote 2: Had this incident occurred prior to the Young decision. use on a passive resistor could have been considered (constitutionally) a low level of physical force due to its lack of iniurv when compared to other types of physical force. Heflin RCW De?nitions. In this chapter, unless a different meaning is plainly required: (1) "Necessary" means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended. 9A16.020 USE OF FORCE WHEN LAWFUL. The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases: Whenever newssarily used by apublic of?cer. inf-the performance 'of'a- legal duty, or a person assisting the of?cer and acting under the of?cer's direction; RCW 9A.36.021 Assault in the second degree. (1) Intentionally assaults another and thereby reeklessl inflicts substantial bodily harm; or RCW 9A.36.031 Assault in the third degree. (1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the ?rst or second degree: criminalnegligence-causes bodily harm pain that extends for a period suf?cient .tofca'use considerable-Esuffering; .or (2) Assault in the third degree is a class felony. RCW 9A.36.041 Assault in the fourth degree. (1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the ?rst, second, or third degree, or custodial assault, he or she assaults another. (2) Assault in the fourth degree is a gross misdemeanor, except as provided in subsection (3) of this section. 11l06l17 Answers to Michael Dorsey's follow up questions: Having reviewed the investigation materials, including the body-cam videos, what is your opinion as to the reasonableness of the officers' actions under the circumstances? Given the nature of "reasonableness? and the Constitutional implications (La. Amendment violations) this questions is outside the original request regarding statutory analysis (assault charges). It is our opinion that to effectively answer the above question requires a significant change in analysis for which we are not prepared to engage in at this time. is their response (to tackle Hefflin back down to the ground) consistent with police training and tactics in a situation such as this? Yes. Of?cers are taught to respond to a violator's actions within the context of each individual incident. While the officer's actions must be based on reasonable perceptions (tempered by experience and training) they cannot be expected to know the underlying motivation of the violator within a tense, uncertain, and rapidly evolving circumstances. Given the environmental factors (officers approaching an unknown subject located on a 4' by 6' landing at the top of an exterior stairwell approximately 15' above ground level during the hours of darkness - from #3 below) and Hefflin?s actions as described above, their actions to mitigate or prevent Heflin from standing or obtaining a better tactical position, is consistent with training delivered to law enforcement officers in Washington State. 2. At the time that the officers report that Mr. Hefflin "sprung from a prone position to his knees? and that they feared that a "fight was imminent, the video appears to show that Mr. Hetflin may have been beginning to put his hands behind his back as they "tackled Heflin back down to the ground. Do you have an opinion as to whether phenomena such as "perceptual narrowing? or ?inattentional blindness" or whether "decision? reaction time" principles could have played a role in the perceptions and/or actions of the officers? Yes. Given the situation and their level of experience, it appears that the of?cers were prepared (primed) to deal with this type of preparatory behavior/resistance that Hefflin exhibited when he "sprung? to a kneeling position. It is not uncommon for violators to be initially cooperative and then quickly engage in resistive behavior. When an officer has had training, experience or both they have ?primed" their brain to recognize and react quickly to those behaviors. Given the environment, this also would contribute to less importance placed on cooperation and more on resistive behavior. 3. This incident involved the officers approaching an unknown subject who was on a 4' by 6? landing at the top of an exterior stairwell approximately 15' above ground level during the hours of darkness. As a trainer of police officers in the area of use of force, do you have an opinion as to whether environmental factors such as these could impact the perceptions and/or actions of the officers? Yes. The environmental conditions associated with this incident could and should have impacted their actions see response to question one above. 4. if in a given contact an officer were to act in violation of department policy or make questionable or poor tactical decisions, would that necessarily render a subsequent use of force during that contact unlawful? No. Officers are faced with constantly changing situations that are unique in every occasion. Therefore, in hindsight, it foreseeable that officers may make a less?than-optimal tactical decision (See 20/20 hindsight in Graham decision). Additionally, policies can be poorly constructed andlor more restrictive than the law requires, conceivably excluding the best answer as a result of such policy restrictions.