SPD Chief Diaz overturns OPA’s findings of violations in last summer’s “pink umbrella” protest incident

In a surprise announcement yesterday, SPD Interim Chief Adrian Diaz announced that he has overturned a finding by the Office of Police Accountability that a police supervisor violated department policies last June when he ordered a crowd of protesters to be dispersed with blast balls, pepper spray, and tear gas.

Diaz made his announcement in a letter sent to Mayor Durkan and Council President Gonzalez, followed by a public letter “to the Seattle community” outlining his reasoning.

The case in question occurred on June 1, 2020, in what has become known as the “pink umbrella” incident. The Office of Police Accountability (OPA) investigated several complaints related to that night that were filed by protesters, onlookers, media, and neighbors.

This specific OPA investigation relates to the decision to disperse the crowd using blast balls, pepper spray, and tear gas. It involved four SPD employees, all of the rank of lieutenant or above, who had supervisory responsibility over some or all of SPD’s response to the protest that night. All of the allegations against three of the employees in this complaint were dismissed, but two allegations were upheld against one employee, identified as Named Employee #1 (or “NE#1”) in the OPA case summary (again, keep in mind that there are multiple complaints and investigations related to that night; this is not the only one). Here is the description of the incident in the case summary — apologies for the length, but it’s worth reading in full:

On June 1, at approximately 9:00 PM, a large crowd had gathered at the police barricade on 11th Avenue and Pike, near the East Precinct. At the time, the crowd did not appear to be engaged in violence, and neither third-party video nor BWV showed individuals throwing projectiles. Video of the incident showed that people in the crowd began to chant “let us walk,” a chant that was taken up by a large segment of the crowd and which seemed to indicate a desire to pass the police barricade and march toward or past the East Precinct.

The crowd was pressed up against the metal barricades, and SPD radio logs reflect that at around 9:04 PM officers on the line reported that individuals were pushing on the barricades. This caused the metal fence line to become bent and concave in places where members of the crowd pushed it. At that time, NE#1 was in tactical command of the police line. According to Department records and interviews, NE#1 was coordinating with Named Employee #2 (NE#2), the Captain assigned to the East Precinct and tasked with physically defending the precinct. However, NE#2 was not at that time giving orders to officers. At 9:04 PM, NE#1 directed officers to hold their position and authorized the use of OC spray in the event that individuals tried to break through the line, but video did not show that OC spray was deployed at that time.

At 9:06, SPD radio, as well as third-party footage, confirmed that at least one bottle was thrown at the line. This appeared to be an isolated incident. However, based on what appeared to be increasing tensions between the crowd and officers, NE#1 directed officers on the line to “mask up” and stated that demonstrators were “not allowed to push again.” During this time, it appeared that the decision was made to switch bicycle officers with SWAT team and other officers equipped with gas masks and batons. Moments later, the gas-mask equipped SPD officers moved forward and “tapped out” the bike officers. These officers were equipped with batons and took up station behind the metal fence line. Shortly after this switch was made, many individuals on the front of the line, including Complainant #1, raised umbrellas, while other members of the crowd began shouting at officers and grabbing onto the metal fence line, causing it to become further bent and distorted. At 9:09, NE#1 advised over radio that there were “many in group with umbrellas.”

Complainant #1 could be seen in the video holding the umbrella with its top pointed toward officers. Footage from the third-party video showed that the umbrella extended past the metal fence line and came within inches of the officers standing behind it. One officer appeared to use his baton to push the umbrella back over the metal fence line, but Complainant #1 extended it again, as did other individuals with umbrellas. Footage from above showed the crowd and the police line as well. In that footage, the metal fence separating the crowd and officers had clearly become uneven, and some individuals could be seen reaching across the line. Of the umbrellas present on the line, only Complainant #1’s umbrella was consistently on the other side of the metal fencing; however, it did not appear to be in direct contact with officers.

Named Employee #3 (NE#3), a Sergeant, was present on the line as a supervisor. NE#3 was recorded on BWV telling nearby officers that if Complainant #1’s umbrella came over the line again, “you grab it and pull it this way.” One of the officers on the line pushed the umbrella back toward Complainant #1, who then pushed it back toward officers. That officer grabbed the umbrella. Complainant #1 attempted to pull it back, and the third-party video showed another individual (dressed in a blue shirt) grab at the umbrella as well. Another officer on the line deployed OC spray at Complainant #1 and the blue-shirted individual. Members of the crowd lowered their umbrellas as a group and officers began deploying OC across the line, including further down.

At 9:10 PM, NE#1 gave the directive: “Per IC [Incident Commander] deploy blast balls and CS. SWAT go ahead and deploy CS, and blast balls.” In OPA’s assessment, this was the directive to officers to disperse the crowd. On the line, officers began to throw blast balls. Many on the front line had already begun to move back after being exposed to OC, but there was still contact between demonstrators and officers up and down the line at this time and the crowd had not fully dispersed. Officers continued to deploy blast balls and CS canisters until the crowd fully dispersed. At 9:11 PM, NE#1 stated on the incident log that the crowd was dispersed.

Converge Media’s Omari Salisbury was live-streaming right at the barrier fence when this happened. Here is his video (warning: this may be upsetting to watch).

The OPA staff reviewed this video as part of their investigation.

Here are some of the key findings from OPA’s investigation, as recorded in the case summary:

  • “OPA found that operational command of the June 1 incident differed in several respects from what was written on the Incident Action Plan (IAP). First, the IAP for June 1 listed an Assistant Chief of Patrol Operations as the citywide Incident Commander (IC) responsible for overseeing all demonstrations that day in the City and directing SPD resources appropriately. However, that individual was not in fact the IC for June 1. Rather, a different Assistant Chief, Witness Officer #1 (WO#1), was the citywide IC that day. Second, the IAP designated an “Operations Chief.” This officer, the Captain commanding the West Precinct, was tasked with overseeing demonstration activity and coordinating resources to respond to particular incidents. When interviewed by OPA, the West Precinct Captain stated that he was not in command of operations at the East Precinct although he was in transit to there at the time of the dispersal.”
  • “OPA determined, based on interviews with several SPD employees including those named in this investigation, that NE#1 gave the order to disperse the crowd. NE#1 was interviewed by OPA and, in his interview, confirmed that he gave the order. While NE#2, the East Precinct captain, was senior to him in rank, NE#2 had just returned from extended military leave and deferred to NE#1, who had been involved in SPD’s planning as well as prior demonstrations.”
  • “NE#1 did not direct officers to seize the umbrella or use OC spray, but he stated that he did not believe doing so violated policy. NE#1 recalled, consistent with BWV and other recordings, that immediately after officers used OC spray the crowd became significantly more escalated and began throwing projectiles. He also stated that individuals tried to climb over the fence line and that this led him to authorize blast balls and CS gas to disperse the crowd.”
  • “NE#1 pointed to intelligence obtained by SPD, as well as the rapid deployment of umbrellas across the front line of the crowd, as evidence that significant elements of the crowd planned a confrontation. NE#1 was aware of and concerned about efforts to burn down the East Precinct, based on the intelligence reports.”
  • “NE#2 stated that he wanted to give a “good, clear dispersal order” prior to dispersing the crowd, and did not want to give that order to the crowd without “clear and convincing violence” to avoid escalating the crowd. Despite the tonal shift, that had not occurred. At the time, there was also no SPD vehicle equipped with a PA system near the line. NE#2 stated that he stepped back from the main line to provide an update to the citywide Incident Commander, WO#1. While he was doing so, he observed a “huge disturbance” at the front of the line, which caused him to believe that someone must have tried to cross the metal fence. Based on OPA’s analysis of the incident, it
    appeared that the “huge disturbance” was the attempted seizure of the umbrella and the deployment of OC across the line.”
  • “NE#3 said that he made the decision to confiscate the umbrella and was not ordered to do so. He stated that he was concerned that the umbrella would jab one of the officers and could conceal attempts to pull down the metal fencing, or other illegal activity, because unlike other umbrellas it was in front of the fencing. NE#3 said that, because Complainant #1 was holding the umbrella at full arms’-length (i.e., approximately four to five feet), he did not believe it would be practical to try to talk to the Complainant directly given the noise, the agitation of the crowd, and the fact that the officers were already formed in a line. NE#3 said that he heard “constant and repetitive” warnings from officers to the crowd saying to “step back, stay back, and don’t cross the line” created by the metal fence.”
  • “OPA finds that NE#1 was the Incident Commander at 11th and Pine with respect to this policy because he was the officer in actual command of the line at the time the dispersal order was issued. As such, OPA assesses his decision to disperse the crowd based on whether there were sufficient “acts or conduct” within that crowd to make dispersal of the entire crowd proportional to the “substantial risk” that those acts would cause injury or property destruction.
    OPA finds that no such substantial risk existed and, as a result, the decision to disperse the crowd violated this policy.”
  • “OPA does not find that there was a sufficient basis to disperse the crowd in its entirety and,
    while doing so, to subject thousands of protestors, the vast majority of whom were not engaging in violence, to blast balls, OC spray, and CS gas. Similarly, applying the terms of SPD Policy 14.090-POL-9(b), OPA finds that NE#1’s conduct here was contrary to policy because: there was not a clear life safety emergency present; no formal dispersal order was provided, even though the gas-mask wearing officers advanced to the line in apparent readiness to use chemical agents to disperse the crowd; and less-lethal tools were deployed in the direct vicinity of many individuals who did not pose active threats of harm. Lastly, while line officers are responsible for their  individual deployments, ultimately, due to his role and given the protest context, NE#1 bears responsibility for their actions. This is especially the case here as it was a more static situation and the officers appeared to apply force, at least in part, in direct response to NE#1’s directions.”

Based upon these findings, the OPA sustained two allegations against NE#1: that he violated SPD policy by ordering the dispersal of of a crowd when there weren’t “acts or conduct within a group of four or more persons that create a substantial risk of causing injury to any person or substantial harm to property”; and that he violated SPD policy by dispersing a crowd in its entirety using blast balls, OC spray, and tear gas without a sufficient basis for doing so.

Here is Chief Diaz’s explanation for overturning the OPA finding and recommendation, from his letter to Durkan and Gonzalez:

My decision with respect to this case is grounded first and foremost in principles of fairness. Simply put, accepting as true for purposes of this review that the circumstances were not such that dispersion was warranted at the time, I believe the allegation, landing on the Named Employee, is misdirected. There is little question that the events of last summer generally posed considerable challenges to the Department and exposed flaws in our command structure as we attempted to manage the multiple events that were occurring simultaneously in different locations around the city. Decisions were made at levels of command above the Named Employee that bore directly on the Named Employee’s action and thus actions taken by officers in the field. As a simple matter of fairness, I cannot hold the Named Employee responsible for circumstances that were created at a higher level of command authority and for carrying out decisions made at a higher rank. For that reason alone, I would change the finding.

… While I appreciate the OPA Director’s detailed investigation, review, and perspective, I must also weigh the reality that the Named Employee – even were the Named Employee in a position to be held responsible for the decisions of others at higher levels of command – did not have the same benefit of time, video compilations, after-the-fact reporting, and the interviews of many in making real-time decisions in the midst of the unprecedented circumstances at hand. This observation is by no means intended to downplay the seriousness or the impact of decisions made; it is simply to note that under the circumstances, based on the information and equipment available at the time, including life-safety considerations known and foreseeable, I do not believe I have a basis from the record before me to sustain the allegation that challenged decisions violated the policy provisions at issue.

After Diaz made his announcement, the Community Police Commission issued its own statement, which reads in part:

In his decision to overrule the Office of Police Accountability, Chief Diaz states that officers were overwhelmed and uses the fact that the situation was complex as justification for this police officer’s use of force, despite the fact many officers involved in that same incident did not commit similar misconduct. He says the decision to meet peaceful protesters with force was made at a “higher level of command” but does not detail how he will be holding that higher level of command accountable.

The CPC raises the key issue, as did Omari Salisbury and Trae Holliday this morning on the Morning Show:  Diaz does not explain who will be held accountable, and in not doing so raises serious questions as to whether anyone will. Today SCC Insight asked SPD whom Chief Diaz intends to hold responsible, and received this non-answer:

“At a systemic level, the acts and decisions of many are under review by the OIG as part of the Sentinel Event Review, and certainly as recommendations are issued beyond those SPD has already incorporated into new policy and training, SPD will welcome discussion. Additionally, per Chief Diaz, while the aforementioned investigation is complete, the investigation into who is ultimately responsible continues. Chief Diaz is committed to holding the right person accountable.”

When asked who is conducting the investigation referenced by Diaz into who is ultimately responsible, and what the time frame is for that investigation, SPD again dodged, saying, “We’ll have more to release on this in the future.”

This evening the Mayor’s Office issued its own non-statement on Chief Diaz’s decision:

The Mayor fully expects the Chief to hold the appropriate officers accountable for the disproportionate use of force that OPA found occurred that day. She will be further reviewing the report from the OPA and further discussing with Chief Diaz and OPA. She understands from the Chief that while he disagrees with the OPA findings as to this particular officer, the matter is far from closed. 

Like so many in Seattle, the Mayor watched this event on the live feed, and immediately expressed her concerns about the disproportionate use of force, tactics, weapons and tools used by SPD. The Mayor met the day after this event with OPA and OIG and requested that they do a thorough investigation and analysis of both actions of individual officers and of the Department response as a whole. 

As stated by William Gladstone and then later by Rev. Martin Luther King Jr., justice delayed is justice denied. While the Mayor may claim that “the matter is far from closed,” the people who deserve justice can no longer see the wheels of justice turning.

I hope you found this article valuable. If you did, please take a moment to make a contribution to support my ongoing work. Thanks!