Two Shelton police officers might face assault charges on the recommendation of the Thurston County Sheriff’s Office after they pepper sprayed, repeatedly struck and used a stun gun on a man who had been sleeping atop a staircase behind a homeless shelter.
The officers were trying to move the man off the staircase because of a standing request by the shelter to remove trespassers from the property. The incident happened on May 25 and was captured in part by the officers’ body cameras.
An investigation conducted by the Sheriff’s Office concluded in early July that the use of force that left the 24-year-old man with a broken nose, broken bones in his face and eye injuries “was not necessary or reasonable.”
The report recommended that the two officers be charged with second-degree assault, which is a felony.
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The officers have maintained their use of force was necessary and justified. They told investigators and others they feared the man had a weapon or could have caused them to fall down the stairs.
The News Tribune and The Olympian are not naming the officers because they have not yet been charged with a crime. The Mason County Prosecutor’s Office is still reviewing Thurston County’s report — released to the newspapers Tuesday — and deciding whether to file charges.
The homeless man and one of the officers are white, according to public records and Shelton police. The second officer was identified as mixed race by police, who offered no further elaboration.
An internal investigation by the Shelton Police Department also is ongoing.
One of the officers has about 15 years of experience with the Shelton Police Department, the other about 10. They are on administrative leave while the investigation continues.
A call to an attorney representing the homeless man was not immediately returned, and the two officers could not be immediately reached for comment.
“Dude, dude, dude, my neck”
The two officers found the homeless man around 1:40 a.m. on May 25 when they saw his feet hanging off the staircase outside St. David’s Parish/Community Lifeline, 218 N. 3rd St.
They asked him three times to descend the staircase before they climbed to the top.
Body camera footage reviewed by The News Tribune and The Olympian shows the officers asking the man, who was curled up in the fetal position, to wake up and show his hands.
One officer had “a can of pepper spray in his right hand,” Thurston County investigators wrote in their report. “It also appears he is shaking the can in preparation to utilize it.”
That officer told the man multiple times to show his hands before finally declaring: “I’m going to tell you one more time to show me your hands, or I’m going to pepper spray you.”
After being pepper sprayed in the face, the man briefly showed his hands before rolling on his stomach facing away from the officers and flashing his palms backwards at police while coughing.
He then sprung from his stomach to his knees, still facing away from the officers and coughing.
The officer who pepper sprayed the man quickly “jumps onto” the man, “forcing him into the corner of the landing,” according to the Thurston County report.
The report notes the man can be heard “yelling, ‘Dude, dude, dude, my neck, dude, my neck.’”
Soon after, both body cameras go dark — the officers said the cameras fell off in the struggle — but they continued recording sounds of the incident.
The Thurston County report states the man was “screaming for help” and that “the sound of someone being struck” could be heard.
Less than a minute later, one of the officers shocked the man with a stun gun, after which he continues “to scream for help,” the report states. Because of the clothing the man was wearing, the dart discharged from the stun gun did not pierce his skin, but he later told investigators he remembered being shocked, records state.
After a few more minutes of screaming and sounds of someone being hit, other police arrived and the homeless man was handcuffed, according to the Thurston County report.
Concerns of a fall, weapon
The two officers wrote in reports that they were concerned when the man did not initially respond to orders and was curled up, possibly hiding a weapon under his body near his stomach.
“I know from my police training and experience that this is a common place for subjects to carry/conceal knives and/or firearms,” the officer who used pepper spray said in a report written after the homeless man was booked into jail. He later was released without being charged.
The officer wrote that he used pepper spray on the homeless man and then tackled him after he got onto his knees. The officer reported he did so to gain control of the man and “prevent us from falling backwards down the stairwell.”
He wrote he feared the man might be trying to pull out a weapon, so he started “striking what I believed to be his upper back and arm.”
Both officers told investigators the dark made it difficult for them to tell what they were hitting.
The Thurston County report states the “majority of the strikes appear to have connected with (the man’s) face.”
The officer who used pepper spray said the man at one point grabbed the front of his police vest “to pull me off balance.”
A knife was found in the area after the incident. Police would not comment on where it came from, but noted they couldn’t confirm that it came from the homeless man.
“I thought they were going to kill me”
The homeless man told investigators he didn’t comply with the officers at first because he was asleep.
He said he didn’t remember police trying to wake him up, according to the Thurston County report, but only remembers “being in a lot of pain” and “stuff hitting me really hard.”
He didn’t realize they were even police officers, he said, until he was handcuffed.
“I thought they were going to kill me,” he said.
He also told investigators he didn’t fight back. The report from Thurston County says the officers couldn’t recall being hit or injured.
The report from the Sheriff’s Office notes the officers were wearing “knuckle guard riot style gloves” which may have made the man’s injuries worse.
The man said he was not intoxicated at the time, and the hospital didn’t report anything related to drugs or alcohol when checking on his injuries.
The man told police he had been homeless for about two months after an incident with his mother involving “malicious mischief,” which typically involves damage to property.
The man said he had been sleeping on the streets during that time but that May 25 was the first time he slept behind the shelter.
Charging decision not made
Mason County Prosecutor Michael Dorcy said in an interview Tuesday it could be more than a month before his office decides whether to charge either officer with a crime.
He said he and his deputy prosecutors still are reviewing the Thurston County report and have asked for additional information from that office.
Dorcy said his office likely would seek an independent opinion or might even send out the decision to another prosecuting attorney’s office to avoid a conflict of interest or the appearance of a conflict of interest.
The case would not involve the state’s controversial use of deadly force law that is unique in the country in giving protections to officers from criminal charges.
Some have been trying to lower the standard for prosecuting police through initiatives and bills in the Legislature.
The standard for assault charges is determining whether the force was “reasonable” or “necessary” Dorcy said. Washington’s deadly force law requires proof an officer acted with “malice” and without “good faith.”
Dorcy, who hired on as a Mason County deputy prosecutor in 2004, said he couldn’t remember charging an officer with a crime for using force. He was elected Prosecuting Attorney in 2010.
“It would be an outlier for sure” if charges were filed, he said.
The Shelton Police Department also is conducting an internal investigation, Chief Darrin Moody said.
Moody said the department is trying to be “accountable” and “transparent” by releasing body camera footage and public records.
He said his department referred the criminal investigation to the Thurston County Sheriff’s Office because “it’s better if we have somebody that is not involved in the incident and isn’t involved directly in this department.”