Shawn Vestal: Initial internal reviews, watchdog assessment raise serious concerns about exoneration in K-9 arrest

If you watched the body-cam video of Spokane police Officer Dan Lesser screaming threats at a suspect sitting in his pickup, stuck in the snow, before lifting a police dog into the truck as the suspect was surrendering, you might have serious concerns with Lesser’s decision.

You wouldn’t be alone.

Two members of the Spokane Police Department’s chain-of-command review would agree with you. In fact, they did – before higher-ups came to a different conclusion.

You might think that the suspect, who had a long criminal record and was wanted on warrants and believed to be armed, wasn’t actually acting in a threatening manner, at least in the limited window of the video, when Lesser hoisted the dog in after him.

Two members of the SPD chain of command review agree with that. They filed reports saying so months ago – before higher-ups overturned them.

You might think, watching the video, that the suspect was actually in the middle of surrendering as Lesser sent the dog in.

You wouldn’t be alone. You’d be in perfect agreement with the first two officers who reviewed the case, one of whom is the SPD’s lead use-of-force trainer.

“(Lucas) Ellerman eventually put his hands up and stated he was coming out as he crawled toward the front seat,” says the supervisor review written by K-9 Sgt. Sean Wheeler. “This is when Officer D. Lesser deployed his K-9 partner ‘Murphy’ into the vehicle.”

Body camera video / Spokane Police Department

Wheeler concluded the use of the dog was “out of compliance with policy.” A review of that initial judgment by Officer Rob Boothe concurred, noting that department policy guidelines for use of patrol dogs is when a suspect poses an “imminent threat of violence or serious harm to the public, any officer or the handler.”

Boothe concluded, “Based on officer D. Lesser’s report and the (body cam) footage, it is my belief that the suspect posed a potential threat of violence or serious bodily harm, but that the threat was not imminent at the time of the application of the canine.”

Both reports were obtained by Brian Breen, a former police officer and blogger who often brings complaints and concerns about police behavior to the public. The Spokesman-Review has requested documents associated with the case but has not yet received them.

Boothe is the department’s lead trainer on using force. His judgment was made about one month after the incident.

In both cases, according to department policy at the time, an internal-affairs investigation should have been initiated and the police ombudsman notified. Neither happened until later, and some have wondered whether it would have happened at all if it weren’t for information about the case leaking.

In any case, by the time the body-cam footage was released publicly on Wednesday, Boothe’s and Wheeler’s judgments had been overruled at higher levels in the “chain of command” review of the case.

Chief Craig Meidl and Capt. Tom Hendren said they believed that the context of the arrest – the suspect’s criminal history and suspicious behavior, including telling the officers he had a gun when he didn’t – led them to conclude the use of force was appropriate. They did not mention the earlier conclusions.

On the question of how he used the dog, the IA report concluded Lesser was “exonerated.” He was found to have violated policy only in his demeanor.

Why no complaint?

The case involves the Feb. 12 arrest of Ellerman, a man with a criminal record who was wanted on more than one warrant and believed to be in possession of a gun. Officers ended up chasing him when he fled from a traffic stop in a white pickup with tinted windows; the chase ended with Ellerman’s truck stuck in snow.

He then refused to come out of the truck. In the video released Wednesday, you see Lesser leave his car, smash the truck’s driver’s side window with his baton, and scream a long string of threats, repeating “I’m gonna f***ing kill you,” among other things.

Sitting in the passenger seat, Ellerman behaves very strangely, lighting a cigarette and not complying with officers. He says he has a gun, and then, when the passenger seat window is shattered, dives into the back seat. Following further commands from Lesser, he says he’s coming out and begins climbing into the front seat.

That’s when Lesser releases the dog into the truck.

Ombudsman Bart Logue first saw the video in May, at which time he learned of the evaluations of Wheeler and Boothe. He had an immediate question: “Why wasn’t this turned into an (IA) complaint?”

Department policy at the time said, “When there is an allegation, complaint or a supervisor is concerned that a violation may have occurred, the supervisor shall initiate an Internal Affairs Complaint.”

To Logue, it couldn’t be clearer: Wheeler’s finding required an IA complaint and the notification of Logue. Logue filed his own complaint at that point, and an IA investigation was initiated. Logue has now certified that investigation, which is not the same thing as giving approval to the chief’s conclusions with regard to it.

He does not have the authority to conduct his own independent investigation, but he’s now considering producing an independent report on the case, he said Thursday.

The broader context

Meidl said Thursday that the judgment of the first reviewing officers was overturned due to a consideration of the “totality of circumstances” – all the reasons officers had to be concerned about Ellerman, including his own statement that he had a gun.

In addition, Meidl said, some of Ellerman’s behavior on the video that seems strange but not threatening was a concern as well, and that some of the actions are difficult to interpret exactly, especially immediately.

“The posture, the audacity to light up a cigarette in the passenger seat … you need to give up immediately, why are you lighting a cigarette?” Meidl said.

He reiterated that the situation involved life-or-death decisions to be made in a split second, noting that officers are human beings under extreme stress.

As for the fact that no IA investigation or ombudsman notification occurred, Meidl said the department does not open an IA probe in every single policy violation – just in the most serious ones.

The standard, he said, is: “Is this so far beyond reasonable that the officer should have known it wasn’t appropriate, or was there malice?”

Meidl also said the case went into a different review chain, known as a Use of Force Review. That differs from the IA process in that the chain of command reviews and draws a conclusion about the case before it is forwarded to IA and the ombudsman is alerted. Meidl said both processes wind up in the same place, in terms of review and transparency.

Logue said there was no standard requiring that only serious cases go to the IA – the policy was clear and simple. It’s been rewritten since to comport more directly with Meidl’s desire for a case-by-case determination, but at the time, that was the rule.

Furthermore, even if the standard was serious cases, this one would meet it.

“Was this serious or not?” Logue asked, rhetorically.

The moment of force

The tension between what Meidl calls the “totality of circumstances” and what happens over the course of a few seconds in the video is at the heart of the issue. The leadership has made the case that everything happening outside that moment helps to justify what happened inside of it. In this view, the few seconds of Lesser’s behavior caught on camera don’t really tell the story.

Logue argues it’s not what happens outside the moment that matters most. All of the context matters, of course. And it is much easier to sit outside that moment and judge it than to make the call yourself. But if we’re going to look at the way cops use force, and if citizens are going to participate in evaluating, understanding and trying to determine the right way for that to happen, we have to look at the moment itself.

At what happens in the very seconds when Murphy goes into the truck.

“You own force the moment it is used,” Logue said.

The first members of the SPD to review the case drew a similar line. Both Wheeler and Boothe noted that Ellerman had given officers every reason to be concerned. And both said that in the moment when the force was deployed, the threat was not imminent.