JON TUNHEIM THURSTON COUNTY PROSECUTING ATTORNEY

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1 JON TUNHEIM THURSTON COUNTY PROSECUTING ATTORNEY 2000 Lakeridge Drive SW Olympia, WA (360) FAX (360) TO: Sheriff John Snaza FROM: Jon Tunheim, Prosecuting Attorney DATE: September 2, 2015 RE: Officer Involved Shooting Review, TCSO # On May 21, 2015, the Thurston County Critical Incident Team was activated to investigate an officer involved shooting. An Olympia Police Officer shot two individuals while he was on duty and acting in his official capacity as a police Officer in the City of Olympia. Both individuals survived their injuries. Pursuant to the protocol for that team, your office was determined to be the lead agency for the investigation. On August 6, 2015 your office presented the results of the investigation to this office for review. Since then, we have examined all of the reports and evidence submitted and determined that no criminal charges will be brought against the involved officer. It is important to note that the review conducted by this office is only to determine if criminal charges should be brought against anyone involved in the incident. It is not the role of this office to determine civil liability or to review for violations of department policy. This memorandum provides the details of my analysis and conclusions in this review. Summary of the Facts In the early morning hours of May 21, 2015, Olympia Police Officers were dispatched to an assault complaint at the Safeway store on the corner of Harrison and Cooper Point Road on the west side of Olympia. The dispatcher told officers an employee at Safeway reported two young men attempted to steal a case of beer from the store and, when an employee intervened, one of the men threw the case of beer at her. Officers were told that the two men left the Safeway store and were presently at the fuel station associated with Safeway. The two men were described by the dispatcher as follows: first subject is a black male, 5 11, thin build, baseball hat, tattoo on his neck, unknown clothing. The second was described as black male, similar description and both were said to be on skateboards. Several patrol units responded to the dispatch. Officer Luke O Brien (2R73), a new officer in training, and Officer Paul Evers (2P30), his field training officer, drove to the Safeway store to talk with the complainant. The employee told the officers that two black men were in the store earlier in the evening and had stolen a case of beer. When they came in again and tried to steal another case of beer, she met them at the door and attempted to intervene. The subject who was carrying the beer then threw the case of beer at her and both fled. Officer O Brien notified other officers via radio that there was probable cause for the assault. These two subjects would later be identified as Bryson Tyler Chaplin, and Andre Damon Thompson.

2 Officer Ryan Donald (2B23) was one of the officers assisting in checking the area for the suspects. 1 He began by driving through the area of Limited Lane and then went to Capital High School to check the school grounds. After approximately 15 minutes of searching, he decided to drive down Cooper Point Road. While travelling northbound on Cooper Point, he noticed two subjects matching the descriptions given walking northbound on Cooper Point on the west side shoulder. He specifically noted both were carrying skateboards as previously described. He proceeded to the intersection of Cooper Point Road and 14 th Avenue, where he turned around and drove back toward the two subjects. As he approached, he notified the radio dispatcher he would be out of his vehicle with two subjects with skateboards at about the 1200 block of Cooper Point Road. Officers O Brien and Evers, who had already left Safeway and were headed back to the station, heard Donald on the radio and immediately notified the dispatcher they would be enroute to Donald s location. Approximately 20 seconds later, 2 Officer Donald called out on his radio shots fired. Soon thereafter, he told the dispatcher shots were fired, he thought he hit one, and the subjects were running northbound on Cooper Point. Officers O Brien and Evers immediately went to a code response (emergency equipment activated). Several other units also began a code response to Donald s location. As Officers O Brien and Evers approached Donald s location, they could see him standing on the side of the road with his flashlight. He was approximately a block north of his patrol car standing at the edge of the road adjacent to a wooded area on the west side of the road. Donald had already notified officers on radio that he believed the subjects fled into the wooded area. They continued past him, turning left on 14 th Avenue, and eventually parked their vehicle. Both officers then proceeded into the wooded area searching for the subject believing they may be fleeing in their direction. One of the officer asked Donald via radio if they were armed. Donald replied that they were not armed but one of them tried to assault him with a skateboard. As O Brien and Evers were making their way through the wooded area, Donald called out on the radio that he was seeing movement in the woods and then notified the dispatcher that he had one of the subjects at gunpoint. A few seconds later, he called out he now had both subjects at gunpoint. He also asked for assistance. About 24 seconds later, he called out shots fired and said one subject was down. About 10 seconds later, Donald said, I need more units please. Both the dispatcher, and the shift supervisor, who was also on his way to the scene, assured Donald that many more officers were on their way. Then, about 13 seconds later, Donald called out shots fired again and said he now had two subjects down. In total, about three minutes and fifteen seconds elapsed from Donald s first call to dispatch when first contacting the subjects. Bryson Chaplin, who was wearing a dark shirt that evening, received several gunshot wounds including at least one wound to the chest, one grazing wound on his neck, an entry and exit wound 1 Because Officer O Brien determined he had probable cause for assault, the two subjects were now considered suspects in the assault investigation. 2 The times referred to in this station were determined directly from the recorded radio traffic. 2

3 on his back, and an entry and exit wound to his right arm. Hospital blood testing determined his blood alcohol level to be.19 and also tested positive for marijuana. Andre Thompson received one gunshot wound to the abdomen. His blood alcohol level was determined to be.18 and he told emergency medical staff he consumed about 12 beers that day and also used marijuana. Several years ago, Thurston County law enforcement agencies, including the Olympia, Tumwater and Lacey police departments and the Sheriff s Office, formed a Critical Incident Team. The team consists of detectives from all of the various agencies. The role of this team, when activated, is to investigate officer involved shooting incidents. Since that time, the standard practice in Thurston County for any officer involved shooting is to activate the team for the investigation. The agency whose officer was involved in the shooting does not participate. Immediately following the incident described above, the Critical Incident Team was activated, and detectives from the various agencies responded and opened an investigation. As protocol dictates, Olympia detectives did not participate in the investigation. Detective David Claridge from the Thurston County Sheriff s Office was assigned to be the lead detective and immediately took charge of the investigation. Once that investigation was completed, it was turned over to this office for review. As a part of this investigation, detectives conducted a thorough examination of the scene along with documenting and collecting many pieces of evidence. In addition, they contacted employees at the Safeway and obtained video footage of Chaplin and Thompson while at the store. Finally, they conducted interviews with all involved officers, including Officer Donald, and any identified civilian witnesses. Finally, they attempted interviews with Mr. Chaplin and Mr. Thompson. One of the detectives was assigned to go to Providence St. Peter s Hospital to collect any available evidence and determine if Chaplin and/or Thompson could be interviewed. Chaplin was not available to be interviewed because he was in surgery at that time. However, Thompson was alert and awake and agreed to be interviewed, providing a taped statement. During the interview, Thompson told the detective that he and his brother were walking home from the skateboard park at Yauger Park 3 that evening. He said he did not remember much but he was trying to help his little brother from the police officer when he got shot. He said they had been skateboarding for 2-3 hours and drinking beer. He denied they used any drugs. He agreed he was feeling affected by the alcohol but said he was not drunk. He denied going to the Safeway. The detective asked Thompson why the officer talked to them. Thompson said that it happened so fast and the officer shot at his brother. He went on to say, I told him like stop, stop, because we didn t do nothing with it. And then shot me, and I was on the ground. That was, that s what I remember, but it was all over. So, it s all I remember of it. He went on say both of them were carrying skateboards but denied that he used a skateboard to defend himself. When asked if his brother had used his skateboard to defend himself, he said, to my recollection, I don t know. I don t remember. I, I don t think so. I don t think so. He went on to say, Because it happened so fast, I got shot so fucking fast dude. In my fucking stomach. I don t remember nothin. As the 3 Yauger Park is located directly south of Safeway on Cooper Point Road. 3

4 interview progressed, Thompson became defensive and eventually ended the statement. No further statements were taken from Thompson during the investigation. Several days later, after Chaplin had been transferred and was recovering at Harborview Medical Center, investigators went to interview him about the incident. When they contacted Chaplin in his hospital room, another person, identified as Chaplin s father, was in the room. The detectives introduced themselves and asked if Chaplin would agree to be interviewed, which he agreed to. Initially, Bryson said he really did not remember much of what happened. He remembered the cop pulling up on them and they ran. He said it was while they were running that the cop hit him, referring to having shot him. He said it would be better to ask his brother because he would remember more of what happened. The detective asked Chaplin if we would be willing to provide a taped statement and at that point Chaplin s father intervened telling Chaplin he needed to speak with a lawyer before answering more questions. Chaplin agreed and told the detectives he would like to speak with a lawyer. Detective Claridge provided Chaplin with his business card and told him they would like to interview him after he had a chance to consult with a lawyer. No further interviews were conducted with Chaplin. During this review, my office contacted the attorney representing Chaplin and Thompson and offered an opportunity for each to provide an additional statement. That offer was declined. When interviewed, Officer Donald provided a detailed statement of the events from his perspective, both verbally and in writing. In his statements, Donald acknowledged he responded to the call at Safeway and was one of the officers searching the area for the suspects. He heard the description of the suspects on his radio and was looking for anyone matching that description. 4 Initially he responded to Limited Lane, a road located northeast of the Safeway fuel pumps. He then went to Capital High School to check the school grounds but found nothing of interest. Eventually, the call was closed. Donald decided to do one last drive down Cooper Point Road before returning to his patrol area. 5 Donald said that as he drove north on Cooper Point, he noticed two subject, both black males, wearing baseball caps and carrying skateboards, walking north on the west shoulder of Cooper Point. He proceeded to 14 th Avenue and turned around, traveling south on Cooper Point back toward the two subjects. He parked his car on the west shoulder and got out to contact them, initially ordering them to sit on the ground in front of his car. Chaplin 6 immediately raised his skateboard over his head and moved toward the patrol car as if he was going to strike the car on the hood or windshield. Donald unholstered his duty weapon, held it down at his side and announced again that he was an Olympia Police Officer. Chaplin lowered the skateboard but the 4 His recitation of the description given over the radio is consistent with the recording of the radio traffic, including the reference to both suspects carrying skateboards. 5 As a B district or Boy unit, Donald was assigned to the downtown area. However, it is routine for officers in one assigned area to assist officers in another area if they are not working on a call in their own area. Therefore, there is nothing unusual about Donald assisting with this call even though his assigned area was downtown. 6 Donald did not identify the suspects by name because he did not yet know their names. Instead, in his statement he identified each by the color shirt they were wearing. For purposes of this section, I have inserted their names for the reader s benefit. 4

5 two kept walking, picking up their pace, past the car on the passenger side. Donald, standing near the driver s door, holstered his handgun and walked to the rear of the car to meet the two. Donald said when he contacted the two suspects at the rear of the vehicle, Thompson grabbed his right arm and began pulling him as if he was trying to take Officer Donald to the ground. At the same time, Donald noticed Chaplin begin to move behind him and raise his skateboard as if to strike him in the head with the wheels of the skateboard. Donald said he felt trapped and had no alternative but to draw his firearm with his left hand. 7 He explained that he positioned the weapon underneath his right elbow still using his left hand and opened fire at Chaplin, firing several rounds. Both subjects disengaged Donald at that time and fled northbound on Cooper Point. Donald was not sure if he hit Chaplin but thought he may have. He noticed that one of the subjects ran into a garbage canister while running knocking it over 8. He immediately called out on his radio that shots were fired and he thought one may be hit. Donald told detectives he next ran northbound on Cooper Point, to where he last saw the suspects. He believed the suspects left the road and fled west into a wooded area. He explained that his intent was to begin creating a perimeter around the wooded area to prevent the two from escaping while other officers were arriving. He determined that officers now had probable cause to arrest the suspect for a felony assault. 9 Donald went on to tell investigators that as he was standing on the side of the road looking into the wooded area, he noticed Chaplin crouching behind a bush. He also noticed that Chaplin had his skateboard at his side. Donald immediately called out on the radio that he had located one suspect, drew his weapon and stepped back into the roadway. He saw Chaplin moving toward him and Donald continued to move backward into the roadway with his weapon drawn and pointed at Chaplin. He gave verbal commands to Chaplin to show his hands and lie down. According to Donald, Chaplin did not comply. Donald said he then noticed Thompson approaching him from the direction of his patrol car. Donald realized that he may have actually passed Thompson while running to the wooded area. He said at that point, Chaplin raised the skateboard over his head and began to move quickly toward Donald. Donald issued several more commands. He said that when Chaplin ignored his commands he fired several shots. Chaplin stopped, stumbled backward, dropped the skateboard and fell to the ground at approximately the fog line of the road. Donald told detectives that when Chaplin fell, Thompson went to him and kneeled down as if to attend to Chaplin. Donald said that at some point, he reloaded his handgun by ejecting the 7 Officer Donald is left handed and his weapon is holstered on his left hip. Because Thompson was holding his right arm, he was able to use his left hand to unholster his weapon. It is also noteworthy that Donald carries a tazer that is holstered on the side of his right leg. Because his right arm was incapacitated, he likely did not have easy access to his tazer. 8 This statement was contained in Donald s written statement supplied to detectives. At the scene, detectives observed a garbage canister on its side with some trash nearby about half way between the patrol vehicle and the tree line. 9 Assaulting a police officer in the line of duty is considered Assault 3⁰ a class C felony. Assaulting anyone with a deadly weapon is considered Assault 2⁰ a class B felony. 5

6 magazine and inserting a new magazine 10. Thompson then become enraged and began yelling at Donald, who was giving Thompson verbal commands to get on the ground. Instead, Thompson started moving toward Donald again. Donald said he continued to give verbal commands without result. Donald said he saw Thompson focus on his gun, and was concerned that Thompson was going to try to take his weapon. When Thompson was close, Donald opened fire again, firing several rounds. Donald said that Thompson was so close he could not extend his arm the entire length to take aim. When Donald ceased firing, Thompson hesitated, then eventually went to the ground. Donald said he continued to cover them until Officer O Brien came out of the wooded area and Sgt. Renschler 11 approached him from the south. Donald said he assisted in handcuffing Chaplin and remained on scene for a while. Eventually, he was transported back to the Olympia Police Station by other officers. Several calls were made to 911 regarding the shots fired. Most or all of those who called 911 were later interviewed by members of the Critical Incident Team with many varying accounts of what was heard. Most of those interviewed corroborated that shots were fired, and several heard three sets of shots fired. In addition, several of the witnesses could hear loud voices yelling with a few recounting they heard commands being given such as those that might be given by a police officer. None of those interviewed witnessed the shooting. However, witnesses in a home located near the location of the wooded area reported that a bullet had broken a window in the home. Detectives verified that in fact one bullet had broken a second story window in the home. Two investigators went to Chaplin and Thompson s home to notify the family of the shooting. When they arrived, they contacted their mother along with their sister, Jasmine and her boyfriend/roommate, Antonio. As they were notifying the family of the shooting, Jasmine and Antonio told them that by coincidence they drove by the incident while it was in progress. They told the detectives they had been at the ER at Capital Medical Center because Jasmine was injured at work and not feeling well. They were on their way home with Antonio driving and Jasmine reclined and resting in the passenger seat. They both said they drove by an incident on Cooper Point Road where an officer was pointing his weapon at a man in a white t-shirt but did not realize it was Jasmine s brother. Antonio said he saw the officer pointing his weapon at the man and the man was walking toward the officer. He said that as he drove past, he heard two gunshots and then three more shots. Jasmine also related that she saw the police officer pointing his gun at the man in the t-shirt. When asked for clarification, she corrected herself admitting that she didn t see the officer pointing the gun initially because she was reclined in her seat. She went on to say that after the first two shots, she sat up and looked back, seeing a subject on the ground. She said she then saw a second subject go to the subject on the ground, then begin walking toward the officer. Both said they could hear 10 Detectives located a partially loaded magazine in the middle of the roadway consistent with Donald s description of where he was when he opened fire on Chaplin. 11 Renschler was the assigned supervisor for that shift. 6

7 yelling but couldn t make out what was being said. At that time, the detectives asked each if they would provide a taped statement and they agreed. Antonio provided a taped statement first. He said that he and Jasmine had been at Capital Medical Center until shortly before 1:00 AM. As they were driving home, he went to the Wendy s on Harrison to get something to eat but it was closed. Jasmine was reclined in the passenger seat so she could rest while he was driving. He said that as they drove back toward Cooper Point Road on Harrison, two police cars with emergency lights sped by them and turned right (northbound) onto Cooper Point Road. He followed the same route because that was their way home. As they proceeded down Cooper Point, they saw one of the police cars was pulled over and the officer was outside of the car pointing his gun at another man. He said that this car had its side mirror light on pointing toward the middle of the road. The officer was about two feet behind the rear of the car. The officer was pointing his weapon at a man with a white t-shirt and the man was walking toward the officer. At the time, he did not recognize the man as Jasmine s brother. As they passed, he heard two shots and, not knowing what was happening, began pulling over to the side of the road. Soon thereafter, he heard three more shots, although he said he thought those shots came from another officer deep in the woods. He said he thought this because he saw the other police car with its emergency lights on through the trees. They proceeded home, wondering if it could have been Jasmine s brother. When Antonio completed his statement, Jasmine said she was going to go to the hospital with her mother and agreed to give a statement at a later time. Jasmine was later interviewed at the hospital and again agreed to provide a taped statement. In this statement, she told the officers she and Antonio were at Capital Medical Center that evening because of an injury she received at work. She said that she was released around 1:30 AM and the two stopped for gas and then went to Taco Bell on Cooper Point Road. They proceed down Cooper Point Road toward home. She was reclining in the passenger seat and heard three shots. She sat up and saw a police officer to her left with his weapon drawn and a flashlight in his hand. She said she also saw a boy just standing there but that she did not recognize him as her brother. She said that there was a police car parked around the corner and not lighting up the street or anything. She further went on to explain that the officer was walking toward the boy as they were driving by. She said she looked back to see what was going on and that s when I see the cop shoot my brother three times. She said she then saw the boy drop to the ground. She said when the officer fired the final three shots, he was very close to the boy and it was in the middle of the street. She said at that point, they kept going and drove home. She denied seeing her other brother or any other officers during the incident, and said she did not hear any yelling or orders being given. This interview concluded when her mother told Jasmine to stop talking to the police until after they talked with a lawyer. As stated previously, investigators collected a number of pieces of evidence from the shooting scene. Pursuant to standard procedures, all evidence was documented prior to its collection. Donald s patrol car was left untouched, still running, until photographed. Directly behind the car, detectives located three indentations in the pavement consistent with a bullet ricochet off the pavement. One still contained a copper fragment from a bullet. They also located three spent shell 7

8 casings near the rear of the patrol care, one on the roadway and two in the grass area next to the road. The grass in this area was noted by detectives to be matted down as if someone had trampled it. As detectives proceeded down Cooper Point Road toward the wooded area, they noted a small piece of dark fabric lying in the road. The item was collected and found to be consistent with the material in Chaplin s shirt. As noted earlier, a little further down the road toward the wooded area, detectives observed a garbage canister that was on its side with some garbage spilled out. Several yards further, they located a skateboard lying wheels down on the grass next to the road. Near the wooded area, they located another skateboard lying wheels up on the fog line of the road. This was located near where Chaplin had fallen to the ground after being wounded. They also located seven spent shell casings on the road along with a handgun magazine with some remaining cartridges inside. Later, after the scene had been cleared, detectives determined that a total of 11 rounds had been fired from Donald s handgun. They returned to search the grass area by where Donald s patrol vehicle was parked and located an additional shell casing in the grass. With that, all 11 shell casings were accounted for at the scene. WSP crime scene analysts determined that the bullet which broke the window of the nearby home was likely fired from the northern most area of the scene perimeter, consistent with the third round of shots fired by Donald. Legal Analysis Washington State law authorizes law enforcement officers to use deadly force in the performance of their duty under certain circumstances. RCW 9A is entitled Justifiable homicide or use of deadly force by public officer, peace officer, person aiding, and reads in pertinent part: (1) Homicide or the use of deadly force is justifiable in the following cases: (c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid: (i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony; (2) In considering whether to use deadly force under subsection (1)(c) of this section, to arrest or apprehend any person for the commission of any crime, the peace officer must have probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others. Among the circumstances which may be considered by peace officers as a "threat of serious physical harm" are the following: (a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or (b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm. 8

9 Under these circumstances deadly force may also be used if necessary to prevent escape from the officer, where, if feasible, some warning is given. (3) A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section. 12 The word necessary is defined in Washington law to mean 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. 13 The term deadly force means the intentional application of force through the use of firearms or any other means reasonably likely to cause death or serious physical injury. 14 The term malice shall import an evil intent, wish, or design to injure another person. Malice may be inferred from an act done in willful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a willful disregard of social duty. 15 A deadly weapon under Washington law means any explosive or loaded or unloaded firearm, and includes any other device or instrument, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm. 16 When prosecuting an officer or any other person for the unlawful use of force, the prosecution has the burden of proving beyond a reasonable doubt that the force used was not justifies and the defendant has no burden to prove that the force was justified. In the present case, there are three instances where Officer Donald used deadly force. The first was the firing of his weapon near the rear of his patrol vehicle. The second was the firing of his weapon causing the injuries to Mr. Chaplin. The third was the firing of his weapon causing the injury to Mr. Thompson. To charge Officer Donald with any crime involving the use of deadly force requires me to conclude that this office could prove beyond a reasonable doubt that Donald s use of force under these circumstances was not justified under RCW 9A Furthermore, because the force used was clearly deadly force as that term is defined in law, the law protects Officer Donald from criminal liability if he was acting without malice and with a good faith belief that his acts were justified. The analysis of this case, as with most cases, requires careful consideration of the statements of all of the witnesses, including that of Officer Donald. In considering the credibility, accuracy and reliability of a witness s testimony, I consider a number of factors including, but not limited to: the opportunity of the witness to observe or know the things he or she testified about; the ability of the witness to observe accurately; the quality of the witness s memory; the manner of the witness 12 See RCW 9A RCW 9A (1). 14 RCW 9A (2). 15 RCW 9A (12) 16 RCW 9A (6) 9

10 providing the statement; any personal interest the witness might have in the outcome or the issues; any bias or prejudice the witness may have shown; and the reasonableness of the witness s statements in context of all of the other evidence. It is important to note that the statements provided by Mr. Chaplin and Mr. Thompson in the case seem incomplete and both interviews appear to have been cut short. Our state and federal constitutions protect individuals from being compelled to be a witness against themselves and neither law enforcement nor this office have legal authority to compel any witness to provide a statement if there is a risk the statement could incriminate them. In addition, in my view, the law prohibits me from inferring wrongdoing or guilt solely because a suspect exercises these rights. For that reason, I have not considered the fact that they may have exercised their rights in determining any wrongdoing on their part. That being said, it is also important to understand that my review is based on the evidence and statements presently before me without speculation about what Mr. Chaplin or Mr. Thompson might say if they agreed to be re-interviewed. Accordingly, much of Officer Donald s statement about these events is currently unrebutted. In evaluating this evidence, I begin with the incident at Safeway. This includes such evidence as the surveillance video from the Safeway and the recorded 911 call and radio traffic. A determination of whether a crime was committed by Chaplin and Thompson at the Safeway is not required in order to determine if the later use of force by Officer Donald is justified. Nonetheless, it is relevant for background and to set the context of the contact between Donald, Chaplin and Thompson. The video evidence demonstrates that Chaplin and Thompson were at the Safeway store at about 12:50 AM on May 21 st. The video footage appears to clearly depict Chaplin walking into the store, obtaining a case of beer, and attempting to leave. When a store employee approached him near the exit, he appears to throw or toss the beer in her direction and run out. The immediate call to 911 occurred at 12:51 AM and a call was dispatched to officers at 12:52 AM. There is also no dispute about the description of the suspects provided to officers over the radio and that there was probable cause to believe that Chaplin had committed a simple assault and Thompson may be an accomplice. When Officer Donald located Chaplin and Thompson walking along Cooper Point Road, he clearly had a reasonable suspicion to believe they were the two suspects based on the description. Current law authorizes a police officer to contact and detain someone when he or she has a reasonable suspicion that the person has committed a crime. Because Donald s belief was reasonable, he was legally justified in stopping and detaining the two men for further investigation. Of note is that Donald s description of Chaplin s reaction to his initial commands is consistent with Chaplin s behavior captured on Safeway video, that is, Chaplin swinging his skateboard above his head as if to strike someone or something. It is this aggressive act which appears to create an immediate apprehension in Donald s mind, evidenced by his momentarily unholstering his weapon. 10

11 Donald then described being grabbed by Thompson as if to try to take him to the ground. The trampled grass just off the roadway appears to corroborate that a struggle occurred causing one or both of them to trample the grass. Donald then described seeing Chaplin with his skateboard raised again, as he did at the Safeway and at the vehicle. He described unholsering his weapon again and this time firing it at Chaplin by putting the gun underneath his right elbow and firing in a sideways direction, presumably with no ability to aim. If accurate, this description of events would justify his use of deadly force in my opinion to prevent a felony assault with a deadly weapon. I find that Officer Donald s description of events is consistent with the physical evidence at the scene. The three ricochet marks located in the pavement on the roadway indicates that three shots were fired low such that three rounds hit the pavement only several feet from where this altercation occurred and is consistent with his description of firing several rounds in succession without opportunity to aim. In my opinion, had Donald been in an offensive position, as was described by Chaplin in his brief statement, where Donald could take aim, the bullets would not have impacted the pavement as they did. I note also that the civilian witnesses who reported hearing shouting and/or orders being given, said that they heard these voices after the first round of shots were heard. This further corroborates that the shooting was in response to something not anticipated by the officer and before he had need to give loud verbal commands or orders. Further, I agree with Donald that no reasonable alternative existed at the time. Because he was involved in a struggle with the suspects, and his right arm was being held by Thompson, only his left arm was useful to him. Most, if not all less lethal tools carried by police officers require some distance between the officer and the suspect to be useful. If this were only a physical altercation, the use of deadly force may not have been necessary at that moment because the officer was not himself facing deadly force. However, once the officer perceived a threat of being struck with the skateboard, and without access to any less lethal tools, the use of deadly force became both reasonable and necessary in my opinion. Therefore, Donald was justified in drawing his weapon and firing as he did. By doing so, it is likely he prevented serious injury to himself. According to his statement, after this altercation, Donald believed he had probable cause to arrest Thompson and Chaplin for a felony assault (referring to at least assault 3⁰). In my opinion, there was clearly probable cause to believe that both committed the crime of Assault 2⁰ defined as assaulting any person with a deadly weapon. In my view, the way the skateboard was described as being used meets the definition of deadly weapon under Washington law. Therefore, his belief was reasonable in light of the serious nature of the assault and he was not only justified to use deadly force to defend himself from the initial assault, but also to arrest the two suspects if necessary as defined by law. 11

12 While the assault on Donald clearly justified the use of deadly force on the first occasion, the next issue is whether the use of force on the second and third occasions were also necessary. In my opinion, they were. Again, analysis of these events requires a close review of Officer Donald s statements about the events. Donald s description of the other two shooting events is again consistent with the physical evidence located at the scene. For instance, detectives recovered one of the skateboards from beside the area where Chaplin fell from his injuries. All shell casings were located in the roadway in a pattern consistent with his description of his location and movement when firing each group of rounds. Also, his description of reloading his weapon prior to his magazine being empty is corroborated by the partially loaded magazine found in the roadway. Other witnesses in the area also corroborate that Donald was yelling commands while engaged with these suspects, as he indicated he did in his statement. In addition, Donald s statement is consistent with the injuries inflicted to both Chaplin and Thompson. Contrary to public statements made previously, it appears that the gunshot wounds were inflicted while the suspects were either facing Donald, or turned to one side. The chest wound was clearly inflicted while he was facing Donald. Medical records indicate that the chest wound appeared to be and entry wound because there was no corresponding exit wound and a bullet was observed protruding from his back under the skin. That bullet was removed by hospital staff and recovered. The Entry and exit wound on Chaplin s arm does not clearly indicate direction of travel but could have struck him from the front while his arm was raised. The two wounds, described initially by one officer at the scene as two gunshot wounds to the back, were actually corresponding entry and exit wounds from a bullet entering from the side and traveling a short distance and then exiting from the back. This suggests that the bullet was fired while Donald was to the side of Chaplin. In my view, it is likely that either the arm wound, or the back wound was actually inflicted during the first shooting incident, given that neither wound was lethal or would have incapacitated Chaplin. I form this opinion because of the small piece of cloth found on the roadway where Chaplin and Thompson were fleeing from the officer. It is my opinion, that a bullet going through Chaplin s shirt probably tore a small piece of material loose which then fell to the ground has he was running. It is also possible that the back wound was actually inflicted during the second shooting incident if Chaplin turned to one side while Donald was firing. In either scenario, I find no evidence that would suggest that Chaplin was shot while his back was to the officer as he described briefly in his statement. Similarly, the entry wound on Thompson was on his abdomen and there was no exit wound, indicating that he was also shot while facing Donald or slightly turned in one direction. Again, there is no evidence to support that Donald shot at Thompson while his back was turned or while he was running away as he seemed to indicate in his statement. 12

13 Donald s recount of the events are also consistent with the radio traffic recorded during the incident. Statements made about events as they are occurring are generally considered reliable in court because it is less likely that someone would have the time and presence of mind to fabricate those events. Pursuant to his training, Donald consistently updated the dispatcher and other officers of the events as they were transpiring. And, in my view, the stress he was feeling from the event was evident in his voice. His report of shots fired, reference to the assault with the skateboard, and later calls for assistance as he was confronted by the suspects I find are all consistent with his description of events and demonstrate actual fear for his safety. Finally, his description of the events are consistent with the reports of other witnesses who heard the three groups of shots fired, along with those who heard commands. There is, however, some conflicting evidence in the form of statements given by the suspects sister, Jasmine, and her roommate/boyfriend Antonio. I am convinced that Jasmine and Antonio likely drove by the scene of these events as they were unfolding. There are certain details in their statements that corroborate Officer Donald s statement and are consistent with other evidence. For instance, Antonio describes two police cars speeding down Harrison Avenue with lights activated and then turning right onto Cooper Point Road at about the time these events were unfolding. We know that Officer O Brien and his training officer, Evers, responded to Donald s call of shots fired by activating the emergency lights and driving code down Harrison and onto Cooper Point. In addition, Antonio s description of Donald s police car, parked on the side of the road with only its headlights and spotlight turned on, is consistent with the scene. Finally, his description of an officer holding a man in a white shirt at gunpoint while the man was walking toward the officer is consistent with Donald s description of the final shooting event. Antonio, however, says he believed the men were close to the rear of the patrol car when the shots were fired. That memory is inconsistent with the physical evidence at the scene. It does not explain the ricochet marks in the pavement near the car. 17 It also does not explain the shell casings found in the roadway by the wooded area, and it does not explain why both Chaplin and Thompson were found lying where they were after being shot, all of which were at least a block away from the patrol car. If Antonio did see O Brien s police car responding to the shots fired call, then the first shooting incident had already occurred and what he was actually observing was the second and/or third event, which, as demonstrated by the location of the shell casings, occurred near the wooded area. This would also explain why Antonio would have seen O Brien s police car through the trees. For these reasons, I believe that Antonio s memory is not reliable with respect to his location while making these observations. The statement by Jasmine is similarly inconsistent with the physical evidence. First, she contradicts Antonio by saying that they went Taco Bell instead of Wendy s. Taco Bell is on Cooper Point Road and would not have required them to travel on Harrison Avenue as Antonio describes. She also says nothing about seeing a police car responding the area before they 17 As stated earlier, I find it highly unlikely that an officer who has a subject at gunpoint and is in a firing stance as Antonio described, would fire toward the ground causing a ricochet of this nature. Police officer are trained to fire at the center mass of their target which would put the bullets fired well above the pavement. 13

14 happened upon the scene. Both Antonio and Jasmine agree that she was actually reclined in her seat at the time the first shots were fired. That could have been the second shooting event. Jasmine said when she sat up, she could see the officer holding a man in white t-shirt at gunpoint. She described the men being about 20 feet apart at the time she first saw them just after the first three shots. This would be generally consistent with Donald s description. She then said the two men were much closer when the final shots were fired, again consistent with Donald s description. However, she contradicts Antonio by saying the officer was advancing on the suspect. That description is inconsistent with the evidence at the scene. Again, this raises concern about the accuracy and reliability of the memory of these witnesses. After considering all of the evidence, I am convinced, to a reasonable degree of certainty, that the events of this incident happened substantially as described by Officer Donald. At a minimum, it is clear that this office would not have sufficient evidence to rebut Officer Donald s statement should he be charged with a crime. The next consideration is whether the force used by Donald was reasonable and necessary under the law on the second and third occasions. Prior to the second shooting event, Chaplin had already demonstrated a willingness to use his skateboard as a weapon. In fact, as stated previously, in the manner in which it was being threatened to be used, it was a deadly weapon. Therefore, when Donald was confronted by Chaplin for the second time, he had reason to believe that Chaplin could and would use the skateboard in the same manner. His concerns were realized when Chaplin raised the skateboard and began advancing. The fact that Chaplin would do this while Officer Donald had him at gunpoint also demonstrated his fearlessness in his effort to attack and potentially disable Donald. Additionally, Donald became aware that Thompson was also advancing on him adding to the threat. At that point, Officer Donald had a reasonable belief that Chaplin posed an imminent threat to his safety based on the display of the weapon and probable cause to believe he had committed a crime involving the threatened infliction of serious harm and was justified in using deadly force under RCW 9A It is important to understand that a police officer cannot, under any circumstances, risk losing a fight with a suspect, especially a suspect involved in an incident where he had already attempted to overcome and disable the officer. Because they are armed, police officers must take all reasonable measures to protect themselves from being incapacitated and, as a result, disarmed and their weapon used against them. After Chaplin was shot and was down, the only remaining potential threat was from Thompson, who appeared to become enraged that his brother had been shot, and began advancing on Donald. It was at this point that Donald probably reloaded his weapon demonstrating his subjective belief that the threat was ongoing and his need to ensure he had enough rounds available to meet the threat. He also noticed that Thompson seemed to become fixated on Donald s gun as he advanced. Thompson continued to advance despite Donald s ongoing orders to stop. It was only when Thompson was finally close enough to create an actual risk of grabbing Donald s weapon, did Officer Donald fire. At that point, given the events that had transpired, Donald had a reasonable 14

15 belief that if Thompson disarmed him he could use the weapon against him. Therefore, his use of deadly force was reasonable and necessary. Finally, even if a reasonable fact finder were to find that Donald s use of force was not reasonable or necessary, in my view, he cannot be held criminally liable for his use of deadly force under RCW 9A (3) if he, in good faith, believed he was justified in using deadly force and acting without malice. I believe Washington law provides this extra standard in the law to provide police officers the ability to make the very quick decisions they are sometimes forced to make about the use of deadly force without fear of criminal prosecution. While I have spent many hours examining and analyzing this evidence, Officer Donald had only seconds prior to each shooting event to make the decision to use deadly force. In fact, the radio traffic demonstrates conclusively that only a matter of seconds passed between Donald s first call about spotting the suspects and the first shots fired call. The remaining events unfolded in just under three minutes. Under these circumstances, I find there is no reliable evidence in this case which would support a conclusion beyond a reasonable doubt that Officer Donald was acting either in bad faith or with malice. Throughout the incident, all of his actions, along with the statements he made contemporaneously on the radio, support a conclusion that he was in fear for his safety and believed he was justified in using deadly force. For these reasons, I am declining to pursue criminal charges against Officer Donald based on these events and the evidence as it currently exists. The matter may now be referred to the Olympia Police Department for their administrative review pursuant to their use of force policies and procedures. I wish to express my thanks to the investigators on the Critical Incident Team who worked on this investigation. In my opinion the investigation was extremely thorough and objective, and the reports and evidence well organized and presented. You can be proud of the work of your detectives and of the assisting detectives for a job well done. 15

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