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City Attorney Peter S. Holmes Nov. 23, 2011
FOR IMMEDIATE RELEASE: FOR MORE INFORMATION CONTACT: Kimberly Mills, Communications Director Seattle City Attorney’s Office (206) 684-8602
CAO to dismiss assault charge against SPD Officer James Lee Taking into account information that only recently came to light, the City will dismiss a misdemeanor assault charge against SPD Officer James J. Lee, City Attorney Pete Holmes said Wednesday. Lee had been facing trial in January in Seattle Municipal Court in connection with the Oct. 18, 2010 arrest of a 17-year-old male inside a downtown convenience store after Seattle police had been attacked nearby during a narcotics buy-bust operation. At the request of Police Chief John Diaz, the Washington State Patrol independently investigated the case and forwarded its conclusions to CAO’s Criminal Division. When determining whether Lee’s use of force was reasonable under the circumstances, the Criminal Division relied on the State Patrol investigation, which included an expert opinion by Robert Bragg of the Washington State Criminal Justice Training Commission. In preparing his opinion, Bragg reviewed the related police reports, witness statements, audio recordings and visual recordings. SPD did not provide Bragg with Lee’s “use of force” statement, which was prepared as a result of the department’s separate and internal investigation. Without reviewing Lee’s statement, Bragg had previously opined: “Using the facts currently available to me and viewed in the light most favorable to Officer Lee, the force used to apprehend Suspect [D’Vontaveous] Hoston was reasonable and necessary as well as within the teachings of the Criminal Justice Training Commission except for the 3rd and final kick delivered to Suspect Hoston’s head.” Because Bragg concluded that the third kick was not reasonable and necessary, the Criminal Division filed the assault charge against Lee. Lee’s use-of-force statement was unavailable to Bragg because under the so-called "Garrity rule," named after a U.S. Supreme Court decision (Garrity v. New Jersey, 385 U.S. 493 (1967)), SPD may compel an officer to make a statement even if the officer invokes his right against self-incrimination. Statements made after invoking Garrity may be used for internal police purposes, including discipline, but not for a criminal prosecution. After the charge against Lee had been pending for several months, Criminal Division attorneys reached an agreement with the officer’s defense attorney to provide the use-of-force statement to the prosecution’s expert witness. On Nov. 11, Bragg was supplied additional information by
the defense, including Lee’s Garrity statement. As a result of that review, Bragg issued a supplemental opinion on Nov. 21, as follows: “In short, and using the additional evidence viewed in the light most favorable to Officer Lee, I now believe that the force in question, the third and final kick, used to control Suspect D’Vontaveous Hoston was reasonable and within the teachings of the Criminal Justice Training Commission (albeit not the best tactic available).” “As I stated in connection with the initial charging decision,” Holmes said Wednesday, “we understand that our police officers have a dangerous job. They are thus permitted the legal ability to use reasonable force in apprehending people suspected of having committed a crime. When the force used is not reasonable under the circumstances, the officer must be held accountable.” “Now that our expert witness has changed his opinion, the interests of justice require me to dismiss this charge. I appreciate the professional manner in which Office Lee and his defense counsel cooperated in our good-faith investigation of this matter,” Holmes concluded. SEATTLE MUNICIPAL CODE Chapter 12A.06 - Offenses Against Persons SMC 12A.06.010 Assault. A person is guilty of assault when he or she: A. Intentionally assaults another person; or B. (1) Knowingly operates or knowingly is in actual physical control of a vehicle; and (2) while doing so commits any act defined as an infraction under Title 11, Seattle Municipal Code or Title 46, Revised Code of Washington; and (3) such conduct is a proximate cause of death, great bodily harm or substantial bodily harm to another. As used in this Subsection B,"great bodily harm" and "substantial bodily harm" have the same meanings as in RCW 9A.04.110, as that statute now exists or may hereafter be amended,and "vehicle" has the same meaning as in SMC 11.14.710. This Subsection B is intended to protect the public welfare. No mens rea element that is not specifically stated in this Subsection B shall be inferred or required. Prosecution or punishment under this Subsection B shall not preclude separate prosecution or punishment for any other crime.