This afternoon the Office of Police Accountability released its long-awaited and much-anticipated report of its investigation of six SPD officers who were in Washington D.C. on January 6th, the day of the Trump-inspired insurrection. It concluded that all six officers joined the rally at which then-President Trump spoke, but it only found evidence that two of them participated in the illegal storming of the Capitol that followed. It found conclusive evidence that three of the other four were elsewhere at the time, and its investigation of the fourth was inconclusive.
Omari Salisbury and I discussed today’s OPA report with OPA Director Andrew Myerberg this afternoon; you can watch it here.
OPA’s investigation appears to be extensive and thorough. According to the 21-page case summary report, it included:
- interviewing all six officers and other relevant SPD personnel;
- searching through third-party video, including from social media, for sightings of the officers;
- checking the emails, texts, and cell phones of the officers where possible;
- ordering the six officers to produce relevant personal documents, including receipts establishing their whereabouts, photographs taken, and bank records showing transactions in D.C. that day.
One of the six officers — one who was later confirmed to not have participated in the insurrection — refused to produce documents, and is now facing separate charges of insubordination and failure to cooperate with an OPA investigation. SPOG, the union representing the officers, intervened in the OPA’s attempt to get documents from the officers, and according to the OPA even tried to get SPD Chief Diaz to decline to allow OPA to issue the document-production order under his authority (Diaz refused SPOG’s request).
The OPA also sent two of its investigation supervisors to Washington D.C., where they spoke with the Capitol Police, the Metropolitan Police Department, the FBI, and the employees of restaurants and hotels that the six officers claimed that they patronized on January 6th. They obtained door-swipe timestamp records from their hotel rooms, and gathered additional information about the areas of the Capitol campus that the insurrectionists illegally trespassed upon so as to be able to state with more clarity whether the officers had broken the law.
The FBI provided OPA’s investigators with still photographs, taken from a video, that purport to show the officers at various locations; the FBI said it could not provide OPA the video itself because it is evidence in a pending criminal prosecution. OPA has not released the photographs; SCC Insight has requested them, assuming faces and other identifying details would be redacted or blurred.
In OPA’s investigation report, the names of the six officers are withheld; they are referred to as Named Employee 1 through 6 (or NE1 through NE6, for short). Here is the top-level summary of the findings:
- All six officers attended the rally before the march to the Capitol and insurrection.
- NE1 and NE2 were found to have illegally trespassed on Capitol grounds, and to have said and done nothing to stop the insurrection going on right next to them, in violation of SPD policies.
- The investigation was inconclusive as to whether NE3 illegally trespassed on Capitol grounds during the insurrection. He claimed that he did not; however, there was no evidence that either supported or contradicted that claim.
- NE4, NE5 and NE6 left the vicinity of the Capitol before the insurrection began; OPA found compelling evidence to support that conclusion.
Let’s take these in reverse order.
NE4 attended the Trump rally as part of a multiple-day trip visiting friends on the East Coast. He visited some of the memorials on the Mall the morning of January 6th before joining NE1, NE2 and NE3 at the Trump rally. He left the rally early, picked up food at a Chipotle, then went back to his hotel room and remained there for the rest of the day and evening.
NE5 also was in D.C. as part of a multi-day trip, arriving there after several days visiting a friend in another town. According to the report, his plan for January sixth was “to see President Trump speak, get lunch, and view historic locations.” He left Trump’s speech early, walked down the Mall with NE6 and a former SPD officer, stopped at the Peace Monument, then the three of them headed to a tavern for a 90-minute lunch before heading back to the hotel. They heard about the curfew on the way back to the hotel, picked up some snacks at a convenience store, and then stayed in the hotel for the rest of the night.
NE6 traveled to D.C. to hear Trump speak and “then to sightsee for the rest of the day.” His story aligns with NE5 for the period after they left the Trump speech.
Restaurant, hotel and other records support the story that NE4, NE5 and NE6 gave to the OPA. It concluded that their story was credible, consistent, and supported by the evidence, and it did not sustain any charges against them.
NE3 scheduled his trip to Washington D.C. after a friend asked NE3 to show him around (NE3 had visited D.C. multiple times before). He told OPA that he refused to make the trip just for the rally, so they extended it to a five-day vacation. He said that he had pre-notified his lieutenant that he would be in D.C. on January 6. NE3 claimed that he wasn’t in a hurry to get to the rally, so he stayed back at the hotel for breakfast after everyone else had left and met up with them later. He left and returned to the rally twice in order to escort friends to restrooms. He said that after Trump’s speech ended another friend needed to use the restroom but the lines were long, so they headed back to the hotel. He and his friends then headed toward the Capitol (where he did not see any signs or barricades along his path), but he said that he was only in the area for about ten minutes before moving on to visit the Law Enforcement Memorial. He took some pictures there, then went to pick up food from a nearby restaurant. While waiting for his food he received an emergency alert about the insurrection at the Capitol, so he took his food back to the hotel, watched the news there, and waited for his friends to return. He remained there until early evening, when he claimed he went to Baltimore to pick up food for his friends and for hotel staff since everything in D.C. was closed. NE3 said that he was unaware that the rally would be about accusations of stealing the elections “and just felt it would be special and historic to hear a president speak.” OPA believes that it was possible that NE3 was technically trespassing when he was in the vicinity of the Capitol that day, but it found no conclusive evidence and concluded that it was plausible that he never entered a prohibited area. NE1 and NE2 did not place NE3 with them at the Capitol, and NE3 claimed that he was farther away. OPA’s investigation neither proved that he violated the law and/or SPD policy, nor did it exonerate him — they categorize it as “inconclusive,” which tips in his favor.
That leaves NE1 and NE2.
Both NE1 and NE2 got to the rally early, then left to go back to the hotel after Trump’s speech concluded. After about half an hour, NE1 and NE2 started walking to the Capitol. They said that they stayed at the Capitol for 60-90 minutes, until they received the emergency alert, at which point they returned to the hotel for the rest of the evening. Both NE1 and NE2 told OPA that they did not see any signs or other indication that they were in a prohibited area, nor did they see anyone committing illegal acts.
But the still images provided to OPA by the FBI tell a different story, one that directly contradicts theirs. From the OPA report:
In February of 2021, OPA transmitted photographs of the Named Employees, as well as their cell phone numbers, to the FBI. The FBI conducted an analysis of whether the Named Employees were photographed or videotaped in or immediately around the U.S. Capitol Building. The FBI also assessed whether the Named Employees’ cell phones provided evidence of them being within the building. On June 15, 2021, the FBI informed OPA that there were negative results for the Named Employees’ cell phones.
After receiving this information, OPA further requested an update concerning whether any photographs or videos were found depicting the Named Employees. That same day, the FBI provided three still photographs. One showed NE#1 and NE#2 in the vicinity of the Washington Monument. The second and third photographs showed NE#1 and NE#2 directly next to the side of U.S. Capitol Building. From the vantage point of the photographs, demonstrators were on the steps of the building, as well as climbing the scaffolding, and numerous demonstrators were surrounding the building.
The FBI informed OPA that these photographs were stills from a video. The FBI said that the video showed the individual recording people on the steps of the Capitol Building and scaling the walls. The individual turned to NE#1 and NE#2 and asked: “Well fuck, doing it?” The individual then turned to again face the building and a male off camera said: “Thinking about it.”
Here is OPA’s analysis of these competing accounts:
As indicated above, both NE#1 and NE#2 admitted trespassing on January 6. However, both asserted that they did not know that they had done so until after the fact and, thus, that they were not culpable. NE#1 and NE#2 described their actions as peacefully observing the occurrences at the Capitol. Neither reported seeing any illegal or violent activities. Both officers said that they saw no sign that they were in a prohibited location.
OPA’s investigation, and particularly the review of video and interviews of Washington, D.C. law enforcement personnel, indicates that the accounts provided by NE#1 and NE#2 are simply not credible. The video showed that there was an active insurrection ongoing at the same time that NE#1 and NE#2 were in the immediate vicinity of the Capitol Building. This included rioters assaulting law enforcement officers and making forced entries into the building. Moreover, the testimony of the law enforcement officers interviewed by OPA and who were present on that day, belied the officers’ recitation of events. The officers said that anyone in that vicinity would have been aware of the violence and chaos that was ongoing. Similarly, OPA finds the information provided by the USCP SSA to be instructive. He outlined all of the restrictions that were in place on January 6, from signs to fence lines staffed by clearly marked officers. The SSA also confirmed that anyone in the immediate vicinity of the Capitol Building – where NE#1 and NE#2 indisputably were – was committing a crime. That OPA did not locate evidence placing NE#1 and NE#2 inside of the Capitol Building does not diminish this conclusion.
OPA further finds the video still of NE#1 and NE#2 to be compelling. They were both standing in the immediate vicinity of the Capitol Building in direct view of rioters lining the steps and climbing the walls. OPA finds it unbelievable that they could think that this behavior was not illegal, contrary to their claims at their OPA interviews. The video still also serves to undermine the officers’ assertions that they did not have notice that they were trespassing. Not only were there signs posted in that area, but there were ongoing violent acts, the use of less-lethal tools by law enforcement officers, and multiple other signs that being in that location was inappropriate and impermissible. Notably, the video still establishes that this was not a scenario where NE#1 and NE#2 were standing in a grassy area some distance from the Capitol where their ignorance of the restrictions might have been more understandable. Here, they were directly next to the Capitol Building during the same time as the ongoing insurrection.
OPA has consistently found that ignorance of the law is not a defense. This is the case for community members and, even more so, for SPD employees. Based on the totality of the evidence, OPA finds that NE#1 and NE#2 were trespassing and that they knew or, at the very least, should have known that this was the case. When they did so, they violated Washington, D.C. law.
Their conduct is made even more egregious by the events that were going on around them. While they smiled and looked at the Capitol Building, as captured by the video stills, rioters defiled the seat of American democracy and assaulted numerous fellow officers. That they, as SPD officers, were direct witnesses to the acts that were going on around them, including the scaling of the Capitol Building walls, but did and said nothing, compounds this. Ultimately, SPD employees, NE#1 and NE#2 included, are strictly held to the law. They violated the law here and, as such, acted contrary to SPD policy.
OPA sustained three allegations against NE1 and NE2:
- a violation of SPD policy 5.001-POL-2, which “requires that employees adhere to laws, City policy, and Department policy.”
- a violation of SPD policy 5.001-POL-10, which requires that SPD employees “strive to be professional at all times.”
- a violation of SPD policy 5.002-POL-6, which requires the reporting of misconduct by Department employees.
In addition, according to a spokesperson for the OPA, NE1 and NE2 are now also facing a separate charge of dishonesty for their testimony to the OPA as it was investigating the case. Under the SPOG collective bargaining agreement, dishonesty by a police officer is grounds for immediate termination of employment.
To sum up where things stand:
- The charges against NE3, NE4, NE5 and NE6 were not sustained. They all attended the rally, but three of them clearly did not march on the Capitol, and there is no clear evidence that the fourth one did.
- NE1 and NE2 face discipline, to be imposed by Chief Diaz, for multiple violations of SPD policy. They might also face federal charges for illegally trespassing, but it is unlikely that the federal authorities will press charges against them given that there is no evidence they entered the Capitol building itself and/or committed acts of violence or vandalism. However, Chief Diaz has gone on the record saying that he would fire any officers who participated in the insurrection that day.
- There are three ongoing OPA investigations: against NE1 and NE2 for dishonesty, and against NE5 for insubordination and refusal to cooperate with an OPA investigation.
That leaves one other tricky issue: what, if anything, to do about the fact that the six officers attended the Trump “Stop the Steal” rally that day. The OPA report makes clear that OPA Director Andrew Myerberg personally struggled with that question as well. Here is how he addressed it in his report:
The First Amendment is perhaps the most fundamental right enshrined in the U.S. Constitution. It provides for the freedom of religion, the freedoms of speech and expression, the freedom of the press, and the freedoms to assemble and to petition the government. As stated by U.S. Supreme Court Justice Benjamin Cardozo: “Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.” The First Amendment does not just protect speech or views that are popular or that are held by a majority of a given community, it also ensures that alternative views, even where abhorrent or factually incorrect, are shielded from government restraint or retaliation. Indeed, failing to do so would have dire consequences. As articulated by Justice Anthony Kennedy in Matal v. Ham, 137 S. Ct. 1744 (2017):
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
This caution rings particularly true in our current social and political age, where Democrats and Republicans, urban and rural areas, and red and blue states are often diametrically opposed. Now, to disagree is to villainize. To hold different political views is to believe that the other side is incontrovertibly wrong and morally corrupt. The risk raised by this is that political views, when they are the minority, could be subject to censorship, punishment, or worse.
This is the core issue raised in this case. Here, there are three officers who attended a political rally in support of a President who was and is still reviled by many in Seattle and that was in furtherance of a theory of election fraud that was, at best, discredited and, at worst, knowingly fabricated in an attempt to unconstitutionally seize and retain power. These officers’ presence at the rally invoked public outrage and calls for their termination. Indeed, the political and factual views espoused at the rally were antithetical to the beliefs of a strong majority of the Seattle community.
However, absent any acts on their part that were illegal, that the officers attended this rally is absolutely protected by the Constitution. These officers were entitled to exercise their freedom of expression and to assemble. That they did so in a manner contrary to the majority view in Seattle does not alter this view. This is the case even if I, as the decider in this matter, disagree vehemently with everything the rally stood for.
Any contrary result would be incorrect – both constitutionally and morally – and would undermine the rule of law that is the bedrock of our society. It would also serve to speed up the current decline of reason, objectivity, and fundamental fairness that plagues America and its contemporary collective discourse. To OPA, that would be simply unpalatable and unacceptable. While this decision may be unpopular with some, OPA believes that it is supported by the law and is consistent with due process.
SCC Insight has asked SPD for comment on the OPA investigation report, and will update this story with any response it receives. UPDATE: SPD has issued a statement:
The Seattle Police Department has received the Office of Police Accountability’s completed investigation into complaints brought against six SPD officers who were determined to be in Washington, D.C. during the insurrection on the U.S. Capitol on January 6, 2021.
Chief Adrian Diaz has been clear that he will hold accountable any SPD officer involved in the insurrection, including disciplinary action up to and including termination.
Due process for public personnel who hold a property interest in their employment is governed by both state and federal law. For transparency of process, the chart below sets forth the steps required to ensure that disciplinary action imposed is legal and binding.
While we hear a call for swifter action, the consequences – as we have seen around the country – of undercutting due process serve only to undermine accountability.
In accordance with the steps set forth above to ensure due process, Chief Diaz intends to issue his disciplinary decision within the next 30 days.
Chief Diaz will not be providing any interviews/press availability about this issue at this time.
The Community Police Commission has also issued a statement:
The January 6th insurrection in Washington, D.C. was an attack against our democracy fueled by white supremacy. It demonstrated the worst of America. While the CPC has always stood for the civil liberties of our community, especially to protest, this was something utterly different – this was an act of terror.
Any officers’ participation in the insurrection is concerning. However, the fact that at least two Seattle police officers broke Washington DC law and Seattle Police Department (SPD) policy while insurrectionists attacked the seat of our democracy is inexcusable.
We are thankful for the thorough investigation conducted by the Office of Police Accountability (OPA) and urge Chief Adrian Diaz to act on the OPA’s findings.
We must address extremism within the ranks.
The concerns raised by the CPC and many other organizations about extremism within the ranks of SPD are serious. Of the 31 police officers from across the nation known to be at the Capitol that day, 6 are Seattle Police officers – more than any other police department in the country.
Soon after the attack on the Capitol, the CPC asked Chief Adrian Diaz how SPD plans to investigate and address extremism within the department’s ranks. While the Department of Defense, Houston Police Department, and other law enforcement agencies across the country have publicized plans to address this issue, SPD’s plans remain unclear.
The extent of SPD officers’ involvement in the insurrection is a wake-up call. The CPC demands SPD transparently and aggressively address extremism within the ranks.
We need full implementation of the landmark Accountability Ordinance.
While OPA was able to thoroughly investigate five of the six SPD officers at the scene of this attack, one officer refused orders to comply with the investigation and produce records. Hiding critical information like this undermines Seattle’s police disciplinary system and the community’s faith in law enforcement oversight.
One of the key reforms in the landmark Accountability Ordinance was the ability for OPA to subpoena necessary records. Unfortunately, that was one of the dozens of reforms rolled back by the latest police contracts. This demonstrates why it is so important we fully implement the Accountability Ordinance in the upcoming collective bargaining process.
Councilmember Lisa Herbold, who chairs the City Council’s public safety committee, also issued a statement:
“On January 6 in Washington D.C., an insurrection targeted the US Capitol and our democratic institutions and attempted to disrupt the peaceful transfer of power that is the cornerstone of our democracy. That assault resulted in the death of a Capitol Police officer. Our elected leaders in Congress were in grave danger.
“Upon learning that Seattle police officers were in Washington, D.C. on January 6 attending the rally that preceded the insurrection, I heard very strong concern from numerous constituents.
“The recommendations of the Discipline Committee to terminate two officers for lack of professionalism and violations of law and policy are sound, and a necessary step for public confidence in police accountability and justice.
“Seattle police officers made up the largest known contingent of police attending the January 6 rally, more than any other municipality across the country. Many of my constituents question whether they can trust officers who attended “Stop the Steal” to uphold the mission and principles of SPD’s Code of Ethics. Whether they were “directly involved” in the insurrection, or if they attended with the intent to passively support the unlawful insurrection and violent assault of our nation’s Capitol, neither act is an example of protected free speech nor should our support of free speech shield accountability for these acts.
The SPD Code of Ethics states: ‘“As a Seattle Police employee I am responsible for supporting the mission and principles of the Seattle Police Department.’” These principles are justice, excellence, humility and harm reduction. Further, the standards and duties policy states: ‘“Regardless of duty status, employees may not engage in behavior that undermines public trust in the Department, the officer, or other officers….It is not the Department’s intent to interfere with or constrain the freedoms, privacy, and liberties of employees; discipline will only be imposed where there is a connection between the conduct and the duties, rank, assignment, or responsibilities of the employee.’” (emphasis added)
“The strong ‘objection’ and characterization of the investigation as ‘unlawful and discriminatory’ by the Seattle Police Officers Guild (SPOG) in their opposition to OPA’s investigation, seems intended only to unreasonably stall accountability. Court precedent grants law enforcement agencies more latitude to restrict speech and association, citing their ‘heightened need for order, loyalty, morale and harmony.’
“At the onset of the investigation, I told Director Myerberg that I believed that the investigation should go further than asking the question of what actions SPD employees took while in D.C. on January 12 and should include an inquiry of whether SPD employees traveled to D.C. with knowledge, like so many people did, that there was going to be an attempted insurrection. According to research from nonpartisan nonprofit Advance Democracy, before January 6 there were calls for violence that proliferated in tens of thousands of comments on posts on Twitter, TikTok, right-wing platform Parler, an online forum formed last year in support of Donald Trump, and other message boards. Since 2006, the FBI has been warning us that extremist groups have strong ties to law enforcement.
“If public employees knowingly travelled to a location in support of people whom they knew were intending to attempt an insurrection, even if their participation was as a passive observer, that is a ‘clear connection between conduct and duties or…responsibilities’ and is an offense that merits termination. I will review the OPA investigation with an eye towards whether questions were asked of the four officers without sustained findings, and whether evidence was sought, to determine the advance knowledge they had of the planned violent events at the Capitol insurrection of January 6.”
Click to access 2021opa-0013ccs062821.pdf
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