FOLIC.

PLEASE RETURN TO KATHY IN OPS

June 30, 2011

Hand Delivery

Re: Confirmation of Termination Dear Officer Meade:
I. Introduction

This letter is to notify you that the City of Everett is terminating your employment as a police officer effective July 1,·2011 for unacceptable misconduct. On June 22, 2011 you were presented with a letter of proposed termination and offered a meeting with City representatives on June 28. Your subsequent input, notably the paper that you gave to Deputy Chief Campbell on June 27, has been considered .. Review of the June 10 incident began with the Snohomish County Multiple Agency Response Team (SMART)nvestigation. Later you were charged by the i Snohomish County Prosecutor's Office with second degree murder and first degree manslaughter. You were found not guilty of the criminal charges. However, the jury also determined that you did not prove by a preponderance of the evidence that your use of force was lawful. A tort claim and lawsuit were filed by Mr. Meservey's daughter seeking up to $15 million in damages. The lawsuit was eventually settled ------~W1-o'ththe Oty's payment of $500-;-00O=ptus-hundreds-ofthousands-of-doHa:rsin-costs-for~-----~ defense of the lawsuit and your criminal defense; Although voluminous materials concerning the June .10 incident were reviewed by me and the ors', it IS the few minutes you interacted with Mr. Meservey that are central to my determination in this case. In my opinion, it is inexplicable that you failed to utilize different force options or to simply move further out of the way of Mr. Meservey's vehicle and reassess the situation; instead, you precipitately used deadly force. In particular, you failed to comply with the requirements of Section 15.4 of the Everett Police Department Policy Manual, entitled "Use of Deadly Force." A copy of

\ A detailed rendition of the facts appears in the OPSFinal Report dated June 3, 2011.

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CITY OF EVERETT • 3002 Wetrnore Ave. • Everett, WA 98201 • (425) 257"8400 • Fax (425) 257-6500

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the policy is attached/ Your actions were incompatible with the Department's priority of protecting and preserving human life. You are an experienced member of this Department. You should know, and you must know, that sound judgment and articulable factors for the use of deadly force are paramount for responsible, effective law enforcement. I, the Department, and the public we serve demand and expect the use of force, especially deadly force, to be reasonable and necessary. You did not meet those fundamentals on June 10, and the result was the unfortunate and unnecessary death of Mr. Meservey. I do not deem you fit to continue as an Everett Police Officer. II. Finding of Misconduct: Use of Deadly Force A. Key Aspects of Section 15.4 Following are crucial passages in Section 15.4: • "An officer may employ deadly force only in those situations where the officer objectively and reasonably believes there Is an imminent threat of death or serious physical injury to the officer or to another person, based on the totality of the circumstances known to the officer at the time." "Deadly force may be employed:" "When necessarily used by a peace officer to overcome actual resistance ...." "When necessarily used by a peace officer ....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." .

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• ---------"When considering using deadly force to arrest or apprehend any person, officers must have probable cause/to believe that the suspect, if not apprehended, poses a threat of serious physical harm __lCLtheofficer or others. Among circumstances which may be considered as a 'threat of serious physical harm' are:" 'The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could be reasonably construed as threatening." "There is probable cause to believe the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm." "Awarning is given prior to the use of deadly force, if practicable. "

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2 The attached copy is identical to the June 2009 version, except that in 2009, on page 4, "The use of any neck holds" read "The use any of neck holds."

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"Firing into a moving vehicle is generally prohibited, except where the officer reasonably believes that there is an imminent threat of death or serious physical injury to the officer or to a third party if the officer does not do so and that it is the only reasonable means of protecting the officerand/or a third party. Given that any officer's likelihood of successfully preventing the escape of a subject in any moving motor vehicle is very low, an officer choosing to fire at a fleeing vehicle must be fully prepared to justify this extreme action."

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B.

Your Training and Experience

You are a highly trained and experienced police officer, specifically in the area of traffic enforcement. At the time of the June 10 incident, you had been an Everett officer for more than 11 years. In addition to the 440 hours of basic law enforcement training you received at the time of your hire, you annually received 40 hours of refresher courses that included segments focused on defensive tactics and handgun skills training. Also, you have received training in various disciplines, including Taser usage; Field Training; and Basic, Advanced, and Technical Collision Investigation. One of the fundamentals of law enforcement training is to seek cover or concealment to protect yourself from a threat. In lieu of cover, you are trained to move in a manner that minimizes your exposure to a threat. You are also trained to establish an appropriate distance between yourself and a threat. Those basic concepts are regularly reinforced through firearms and defensive tactics training. Engaging or facing a threat is unacceptable when doing so tends to create a need to use deadly force. In 2006 you experienced an incident that you have cited as being similar in nature to the June 10 incident and as being at the forefront of your thoughts when standing next to Mr. Meservey's vehicle. [Meade OPSinterview transcript, page 11; Meade trial testimony transcript, pages 37, 64-65] In 2006 you and another officer, Ann Bakke, approached a parked vehicle with a suspect in the driver's seat. There were cars parked on either side. You approached from the passenger side and Officer Bakke approached from the driver's side. The driver backed out of the parking stall, ------~Wl=·full1e1eftfront corner of the car swinging towarcrn-officer Ba~"'ke~a"-s ~Slhz>------------unsuccessfully attempted to get out of the way. Officer Bakke was struck by the car and you ran alongside it as it fled. You did not even unholster your gun at that point and instead attempted to break a window of the vehicle. In contrast to the June 10 incident, neither you nor Officer Bakke fired shots at the vehicle. It was only when the vehicle was driving forward directly towards another officer, Faye Dawson, that Officer Dawson shot once into the front windshield as she attempted to move out of the way. You then shot four times, striking the side of the vehicle and the back window. C. Your Criminal Trial Testimony

I am troubled by your trial testimony regarding use of force alternatives you opted not to use on June 10:
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Are you saying that an asp has the same lethal potential as a gunshot? No. But what I'm saying is there's not a lot of Officer Meade: room in that-sin between the vehicles to be swinging, and then you got to stick a two-foot asp through a window and try not to hit the steering wheel or anything else to hit the driver. And the only thing that's exposed is his head. You didn't have to extend it, you could have put it Prosecutor: in the palm of your hand and hit him? Yes. Officer Meade: That would pack a wallop? Prosecutor: I didn't think about that. Officer Meade: A possibility, isn't it? i. Prosecutor: It is. Officer Meade: In fact you didn't even remove your asp from your Prosecutor: duty belt that entire evening, did you? No, I did not. Officer Meade: With respect to the OC, would you concede it Prosecutor: would be hard to drive a car if you couldn't see? Yes. Officer Meade: You have fought people before? Prosecutor: That's correct. Officer Meade: No one likes to do it, but if necessary you would Prosecutor: do it? Officer Meade: Yes. I'm sorry, I can't hear counsel's questions. Mr. Allen: You have fought before, and jf necessary you Prosecutor: would do it?3 That's correct? That's correct. Officer Meade: That didn't come into your thinking that night at Prosecutor: all, smacking him, grabbing his arm, his left arm and pulling it out and bending it against the window and the B"pillar? I thought it would be very tough to pull him out Officer Meade: ------------------------------------~t~~u~~~ndnw---------------------------------I didn't say pull him. Prosecutor: Yes, you did. Officer Meade: I said grab his left arm and pull it back and pin it Prosecutor: against the Bvpillar in the frame of the door for pain compliance? It could have been done, I suppose. Officer Meade: But you did none of these things; correct? Prosecutor: Correct. Officer Meade: Now, you didn't really communicate with Officer Prosecutor: Klocker either, did you? No. But he didn't communicate with me, either. Officer Meade: Prosecutor:
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The transcript erroneously attributes this question to the Court.

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Prosecutor: Officer Meade: Prosecutor:

Officer Meade: Prosecutor: Officer Meade: Prosecutor: Officer Meade: Prosecutor: Officer Meade: Prosecutor: Officer Meade: Prosecutor: Officer Meade: Prosecutor: Officer Meade:

That's not what I asked you. l'rn asking you if you' talked to Officer Klecker. No, I did not. You didn't think about saying, Hey, Steve, I'm having a hard time with this guy, why don't you bust out the window and tase him. Did you do that? ' No, I did not. .o-, Hey, Steve, I know you carry OC, why don't you break the window and spray him? No, I did not. And he, does carry OC? I don't know that. He testified that he, did. Okay. You didn't do that? But I didn't know that at the time. Or you didn't say, Hey, come over to my side of the car and we're going to go hands-on with this guy? No, I did not. These are all reasonable alternatives, aren't they? They could be, yes.

[Meade trial testimony transcript, pages 120·123] You testified as follows concerning your determination not to disengage from Mr. Meservey and try another tactic: Sure. With the exception of the two taser appttcattons.you didn't resort to any of your nonlethal options that evening? I did not. Officer Meade: How about disengaging? Prosecutor: By that time it happened so fast there was no Officer Meade: choice to disengage. ----KBefore-that,-before-tt-got-to-th~mt;-wRere_yeu:------had to apply the taser. That's not an option to disengage. Officer Meade: Prosecutor:

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[Meade trial testimony transcript; page 124] You admittedly thought of alternative uses of force, but say that you just did not consider them to be options: Prosecutor: Officer Meade: Prosecutor: Officer Meade: Doing something else would necessarily include less lethal options, wouldn't it? That's what the taser is for. And that's what the OC is for? Yes.

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Prosecutor: Officer Meade: Prosecutor: Officer Meade: Prosecutor: Officer Meade:

And that's what the asp is for? That's correct. And that's what hands are for? That's correct. But you didn't think of those? It's not that I didn't think of it, I didn't think they were options.

[Meade trial testimony transcript, page 126] It is further concerning that you testified that you could have shot Mr. Meservey when he reached for the gearshift: Prosecutor: Officer Meade: Prosecutor: Officer Meade: Prosecutor: Officer Meade: You indicated when you walked up on this you had a flashback or something to the 2006 case; correct? I'm making conscious awareness when Iwalk in between two vehicles that I remember that could be a dangerous situation. , Absolutely. But when you saw him lean over and go for the gear shift, you could have shot him right then, based on your line of thinking? Once he got his hand on it. I was hoping he wouldn't get his hand on it. I'm asking you, you could have shot him right then, the minute he put his hand near it? Yeah, but 1wasn't ready to do that yet.

[Meade trial testimony transcript, page 131]
D. Your Conducton June 10

Nothing in Section 15.4, or within the standards for responsible policing, can justify your fatal shooting of Mr. Meservey on June 10. I so state based on undisputed facts and despite your efforts to rationalize your actions that night.

At 11:37 PM, you arrived at the Chuckwagon for a Driving Under the Influence (DUI)area check, but you did not expect to find the driver and vehicle since the vehicle reportedly had left the area. [Meade DPS interview transcript, page 6; Meade trial testimony transcript, pages 29, 84; CADIncident History #OD09073947] However, you did locate the vehicle in the parking lot with Mr. Meservey in the driver's seat, legally parked in a stall. The engine was not running. [Meade trial testimony transcript, page 35] When you knocked on Mr. Meservey's window, he started his engine, which enabled him to roll down his electric window. [Meade CPS interview transcript, page 11; Meade trial testimony transcript, pages 35~36, 49~50] ,

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Based on your observations, you determined that Mr. Meservey was intoxicated. [Meade OPSinterview transcript, page 12; Meade trial testimony transcript, page 53] You requested that Mr. Meservey turn the engine off and offered him the opportunity to take a taxi home. [Meade OPS interview transcript, page 12, Meade trial testimony transcript, pages 51-52] Mr. Meservey eventually turned his engine off, but was argumentative. [Meade OPSinterview transcript, page 12; Meade trial testimony transcript, page 53] Mr. Meservey then turned the engine back on, which you say caused you concern about the vehicle backing out of the parking stall. [Meade trial testimony transcript, page 64] Rather than seek cover, you stayed in place and told Mr. Meservey several times to turn the engine off. [Meade OPSinterview transcript, page 16; . Meade trial testimony transcript, pages 64-66] When Mr. Meservey did not . turn the engine off, you still did not move from your position. You continued to stand your ground, "dosed the air," and when Mr. Meservey reached for the gearshift, you applied your Taser from close range. [Meade OPSinterview transcript, page 16, and appended e-mail from Officer Meade; Meade trial testimony transCript, pages 65-67, 71-72] TheTaser application was ineffective, and the vehicle lurched forward and over the concrete front parking curb. The vehicle hit the fence to the front and may have rocked backward, blocked by the parking curb. It was then that you moved or "jumped" back to get away from the vehicle. [Meade OPSinterview transcript, page 17; Meade trial testimony transcript, page 75; Meade civil case deposition, page 31] Rather than continue moving backward to get behind cover and create more distance between you and the threat, you remained in place and shotMr. Meservey. At the point of the shooting, by your own admission you were not located directly behind Mr. Meservey's vehicle, but offset from the left rear corner and mere inches away from cover behind theSUV located next to Mr. Meservey's vehicle. [Meade OPS interview transcript, pages 22-23, and appended overhead photograph and WSPDiagram Exhibit #5 marked by Officer Meade; Meade trial testimony transcript, pages 134,149,172; Meade civil case deposition, pages 35,43-44] According to the radio traffic recording, approximately 21 seconds elapsed· from the time you "dosed the air" until your report of shots fired at 11:48 PM. [OPSinvestigation, SNOPAC audio recording, CD#1, 2nd 911 Call/Radio Traffic, Track 18, 01:04-01 :25; CADIncident History #00090739474] During those 21 seconds, you activated two applications of the Taser to Mr. Meservey, totaling 11 seconds," and fired eight rounds into his vehicle, seven of which struck him. In the circumstances, escalation from the Taser to a deadly weapon in 21 seconds is unfathomable.

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The OPS Final Report, at page 8, Inadvertently has the air-closure time as "2338 hours." According to the Taser download report dated 6/18/09. A copy of the data Is included in the OPS Final Report notebooks.

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During your interaction with Mr. Meservey, he did not make any attempt to engage you in a physical confrontation, and he gave you no indication that he possessed a firearm or other weapon that he might use on you. [Meade trial testimony transcript, page 109-110] You have not contended that you warned Mr. Meservey prior to using deadly force. Earlier, Mr. Meservey had become intoxicated and had been insolent towards two female Chuckwagon patrons; however, he had not physically harmed them or anyone else, nor had he threatened to do so. You admittedly have dealt with hundreds of intoxicated drivers and have received additional training on the detection and apprehension of intoxicated drivers. [Meade OPSinterview transcript, page 4; Meade trial testimony transcript, pages 12·15] Mr. Meservey's resistance to your orders was confined to not exiting his vehicle and moving it forward over a front parking curb and into a fence as you applied your Taser on him. As a traffic officer, you would have been aware that shooting the driver could affect the path and dynamics of the vehicle. Shooting the driver would not ensure that the vehicle, had it actually been moving, would immediately stop moving. You stood in one position, not taking any evasive action to move from what you say you deemed-jnaccuretely-to be a vehicle moving back at you at a high rate of speed, and instead you fired eight times at Mr. Meservey. [Meade OPSinterview transcript, page 24] No felony was involved on Mr. Meservey's part.

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Your use of deadly force was not necessary", The Taser was not the only reasonably effective alternative available to you. Hand strikes, pain compliance techniques, and the use of your asp in the collapsed position were aU available to you. Cover Officer Stephen Klocker was on scene and carried OC7 spray on his duty belt, although a lack of communication with him evidently precluded you from knowing that. Moreover, you were positioned safely behind and off to the left side of Mr. Meservey's vehicle, ------------iHl6--tflHs-yel:J-EeHkI-flave--stef)f)eEl--beAiAG-tAe-teveF-Bf--the-SY¥-Rexct-te-Mh.-------Meservey's vehicle to ensure your protection, either after the tasing or eartter. Then you-and Officer Klecker-could have disengaged, reassessed the situation, and formulated a strategy. For one thing, you could have had Officer Klocker move a patrol car so that the push bars were up against the back of Mr. Meservey's vehicle . •. You say you were concerned for the safety of Officer Klecker, whom you believed never moved from his cover position at the right rear corner of Mr. Meservey's vehicle. [Meade OPSinterview transcript, pages 16, 23, 36;
AUEverett officers are well-trained on the statutory definition of "necessary" force, at RCW9A.16.010(1): "'Necessary' means 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." 7 OCis Oleoresin Capsicum, a pepper-based irritant spray.
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Meade trial testimony transcript, pages 77, 145-146, Meade civil case del.?osition, page 26] However, that position does not seem risky, and a seasoned officer such as Officer Klocker would know how to avoid harm in that situation. • Mr. Meservey's vehicle was stuck over the parking curb, but--even if it had bumped back slightly after hitting the fence-at did not constitute "a moving vehicle." Firing into a moving vehicle is "generally prohibited" as it constitutes an "extreme action," permissible only when reasonably believed to be necessary to prevent an imminent threat of death or serious physical injury. Such a threat plainly was not present on June 10. The highest priority of law enforcement is to protect human life and safety. To that end, it is imperative that prudent, available options be exhausted before deadly force is utilized.

III.

Your EmploymentStatus

Based upon the above, the City of Everett is terminating your employment effective tomorrow, July 1. You have the right to contest the termination through a grievance filed in accordance with the CityIEPOAcollective bargaining agreement or through a notice of appeal filed with the Secretary of the Everett Civil Service Commission. I must add that City policy obligates me to inform you of the option to resign.

Sharon K. DeHaan, Director Labor Relations/Human Resources Attachment C: Chief Scharf SharonK. DeHaan Oepllty Chief Atwood Deputy Chief Campbell Deputy Chief Templeman Department Personnel File City of Everett Personnel File OPS File #OPS2009-092

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