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Oct. 31, 2020

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Fired, but still a cop: How Washington state’s decertification process leaves troubled officers with their guns

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In the span of two months, he slammed a driver to the ground using an unsanctioned takedown, allegedly called a Black suspect a “monkey,” and pepper-sprayed a suspect who was strapped down to a hospital gurney.

Then-police officer Nick Hogan cost the city of Tukwila hundreds of thousands of dollars in legal settlements and later pleaded guilty to a federal civil rights charge. He was fired from two police departments.

But the state never revoked his certification to be a Washington police officer.

The legal grounds that allow the state to decertify a cop — taking away their badge and gun for good — are so narrow that Washington hardly ever bars police from returning to work.

Out of about 11,000 officers in the state over the past four years, an average of about 100 a year were fired, and more than 40 a year had misconduct serious enough that their own supervisors flagged them for decertification, according to a Seattle Times analysis.

Of those, just 13 a year on average lost their credential. The state has never decertified an officer for using excessive force.

Voters here passed one of the most restrictive police accountability laws in the nation in 2018, leading prosecutors to file murder charges last week against an Auburn officer. But Washington still relies on an antiquated decertification system that prevents authorities from taking the final step. Officers with checkered histories are able to move onto another department, where research has shown they are more likely to once again violate the public trust.

Other states have tightened up their decertification laws in recent years, but police unions successfully fought reform efforts in Olympia. As the nation simmers over racial injustices in policing, advocates and legislators are trying to focus public outrage on reforming the law, which hasn’t been updated since it was written almost two decades ago.

“It’s not a robust process,” said Dan Satterberg, the King County prosecutor and a board member of the Washington State Criminal Justice Training Commission (CJTC), which oversees police certification.

“We’re not set up for this, we’re not funded for this kind of work, but there is growing desire for consistency in discipline and accountability.”

Barriers to decertification

Legislators created the CJTC in 1974 to train police, but it wasn’t until 2002 that it gained the authority to issue and revoke certifications, which officers are required to have.

None of the police unions opposed decertification when it passed, an indication, observers say, that it contains strong protections for officers.

While Washington’s decertification process is not the weakest in the nation, it is in the minority of states that require an officer to be fired for misconduct before losing credentials, said Roger Goldman, an emeritus law professor at St. Louis University. “That’s a real weakness,” he said.

Other state-regulated professionals in Washington, such as teachers, don’t need to be fired to lose their certification.

“We regulate hairdressers, barbers and a range of other professions much more seriously than we regulate law enforcement, despite the fact that law enforcement can take your life or liberty,” said Anne Levinson, a former Seattle police oversight official and municipal court judge.

Any felony conviction can lead to an officer’s decertification. In addition, it can follow a firing for misconduct under one of four categories that rises to the level of a crime: perjury or dishonesty; use or possession of illegal drugs; actions that lead to a loss of gun rights; or conducted “under color of authority,” such as a traffic cop demanding sex from a driver to get out of a ticket. Use of excessive force could fit into this last category.

Officers are given a hearing before a five-member panel that typically includes four law enforcement representatives and a university professor. Lying to the panel is also a decertification offense.

But the criteria are so restrictive that one of the state’s highest profile examples of police use of force — former Seattle officer Ian Birk’s fatal shooting of First Nations totem carver John T. Williams in 2010 — didn’t qualify. Birk was not decertified and, although his certification has expired, he remains in “good standing” with the CJTC.

Union officials say the state’s current system protects officers’ legal rights.

“We absolutely don’t want to work with officers who shouldn’t wear the badge — as long as discipline is a fair and thorough process,” said Chris Tracy, president of the Washington Council of Police & Sheriffs.

Inconsistent reporting makes it difficult to track problem officers. Some states, including Washington, submit decertified officers’ names to a national index, but that’s not a requirement. There’s no statewide or national database of police misconduct, and the CJTC destroys records of officers who were not decertified after 14 days.

In 2015, the most recent year for comparison with similar-sized states, Tennessee removed 40 officers while Virginia decertified six, according to research by Seattle University criminal justice professor Matt Hickman. The CJTC doesn’t have reliable records of officers referred for decertification before 2010.

Officers who are fired are roughly twice as likely to be fired for misconduct or to receive a “moral character violation” in their next law enforcement job, according to a study of 98,000 Florida officers over 30 years by Duke University and the University of Chicago law schools.

“This is not new. It’s a systemic, national concern,” said Levinson, who is spearheading efforts to reform the process in Washington. “These structural flaws continue to enable officers to be recycled from department to department in ways that undermine public trust and confidence.”

Checking the box

While thousands have marched in the streets of Seattle this year to protest racial injustice and police brutality, Robert Turner could only watch from home.

Nine years ago a group of Tukwila police officers arrested him at a car club barbecue using a Taser and pepper spray. One stomped on his ankle so hard he could hear a bone snap.

Turner, who is Black, accused Nick Hogan or another officer of stepping on his ankle in a 2014 lawsuit. Hogan, who is white, then said, “This one isn’t going to play basketball anymore,” Turner alleged in the complaint. Tukwila settled the lawsuit for $175,000.

“I’m still in pain every day. It’s like a bomb exploded in my leg,” said Turner, who needed more than a half-dozen screws to keep the bones together. “My ankle hurts too bad to go out there and protest.”

Hogan wasn’t disciplined for what happened to Turner, but was cited after a series of use-of-force incidents, including two against Black men thatan assistant chief called “brutal.” How he avoided decertification illustrates the holes in the process.

Hogan declined to comment for this story.

The month after the barbecue, Hogan kneed a handcuffed suspect three times in the head while trying to drag him out of a patrol car. Hogan called the suspect a “monkey” while talking to a witness, prosecutors alleged in court records; Hogan denied saying it. Later, after the suspect shouted obscenities and threatened Hogan, the officer pepper-sprayed the man, who had been pinned down with four-point restraints at Harborview Medical Center.

Less than a month later, in June 2011, Hogan slammed a man named Alvin Walker to the street with a takedown that a department supervisor said was highly likely to injure a suspect. The move broke Walker’s elbow; he settled a lawsuit against Tukwila for $100,000.

Then-Tukwila police Chief Mike Villa fired Hogan and, as required by state law, sent notice of the firing to the CJTC. But Tukwila didn’t check the box on the form that said Hogan may be eligible for decertification.

A police spokesperson said Tukwila officials didn’t believe excessive force was one of the reasons for decertification. It’s not explicitly a reason, but can be if an officer’s conduct was criminal.

That meant Hogan could be hired at another agency in Washington, and he found a home at the Snoqualmie Police Department. There, he was disciplined in 2016 for having an affair with another officer’s wife.

“I just knew that he was absolutely unfit to serve, given what I had seen in his background,” said Kirk Davis, a lawyer for Robert Turner and a former prosecutor.

Meanwhile, federal prosecutors took the unusual step of indicting Hogan for violating the suspect’s civil rights for the pepper-spray incident. Hogan used criminal force “under the color of law,” prosecutors alleged — a category of misconduct that would appear to rise to the level of decertification.

Snoqualmie fired Hogan, saying a pretrial order banning him from carrying a gun “reflects very poorly” on the department. This time, the department checked the decertification box.

Hogan pleaded guilty to a misdemeanor and spent nearly nine months in federal prison in California.

But the CJTC declined to decertify him, citing a narrow reading of the firing: that the reputational hit to Snoqualmie — regardless of the gun prohibition or guilty plea — wasn’t enough for Hogan to lose his badge.

“The CJTC’s response reads like an effort to find some way to avoid revoking Hogan’s certification, rather than using common sense,” said Tiffany Cartwright, an attorney for the law firm that represented Alvin Walker. “This is an abdication of its responsibility.”

As part of his plea deal, Hogan agreed to not be a police officer for 15 years. He will be eligible again in 2031, having never been decertified.

“I wish we could have revoked him,” Tisha Jones, the CJTC certification manager, said in an interview. “There are some (cases) where I don’t feel the greatest, but there’s a process.”

Following the lead of prosecutors

Fewer than half of states require an officer to be convicted of a crime before being eligible for decertification, said Goldman, the St. Louis University professor. Washington allows decertification for the misconduct itself, whether or not there’s a conviction.

But in practice, the agency often follows the lead of prosecutors, who very rarely charge cops.

That’s what happened when two Shelton police officers, Justin Doherty and Matt Dickinson, spotted Nick Heflin, 24, sleeping on the stairway landing of a Shelton homeless shelter one night in May 2017. They pulled on riot gloves with reinforced knuckles, then climbed up to Heflin’s makeshift bed.

After yelling at Heflin to show his hands, Doherty pepper-sprayed him, body camera footage shows. Heflin, coughing, popped up onto his hands and knees, and began to bring his hand behind his back when Doherty jumped on him.

The officers punched and used a Tazer on him in a struggle that lasted more than four minutes. When it was over, Heflin’s face was so swollen he couldn’t see out of either eye. X-rays showed broken bones in his eye sockets and sinuses. A doctor with UW Medicine later diagnosed him with a traumatic brain injury.

Karen Heflin, his mother, said he would sporadically lose consciousness after the beating. “Now when he sees a cop he’ll duck,” she said. Nick Heflin declined to be interviewed for this story.

An investigator from a neighboring county’s sheriff’s department determined the officers “intentionally assaulted Nick Heflin and thereby recklessly inflicted substantial bodily harm.” He recommended that the prosecutor consider felony assault charges.

Shelton police Chief Darrin Moody fired the officers in 2017. Doherty had used force against people more times than any other Shelton officer had in the previous four years, Moody found, including an unusually high rate of force against homeless people, according to the chief’s discipline memo.

Doherty and Dickinson referred questions from The Seattle Times to their lawyer Alan Harvey, who called the original investigation incomplete.

The Mason County prosecutor declined to file charges, citing police training experts who determined the pepper spray could be deemed unnecessary but the punches “would not likely be considered unlawful.”

That provided an opening for the officers. When their files came before the CJTC, it too declined to pursue decertification.

The CJTC typically defers to prosecutors in cases of excessive force in part because of budget constraints, Jones said. The certification office’s annual budget — $280,000 last year — isn’t enough to include a full-time staff lawyer.

And proving excessive force amounts to a crime “under the color of authority” requires the CJTC to prove intent, Jones said, which is difficult. “We have to feel confident that we can prove it,” she said.

Criminal charges against police officers in Washington are exceedingly rare. Satterberg’s office last week charged Auburn Officer Jeffrey Nelson with murder and assault for the fatal shooting of 26-year-old Jesse Sarey. It was Nelson’s third fatal shooting in the line of duty since 2011; he has not previously been referred to the CJTC for decertification.

The charges against Nelson are the first against a Washington state officer for using deadly force since 2009. The case is also the first test of Initiative 940, the 2018 voter-approved police reform law that lowered the threshold for prosecutions of police.

Dougherty and Dickinson filed unfair-labor-practice complaints against Shelton that were settled this January, with the city agreeing to remove record of their terminations from their personnel files. Neither is working as an officer in Washington, according to the CJTC, although they could by renewing their now-lapsed certification.

“They never should have been terminated,” said Harvey, the officers’ attorney. “It may look like criminal conduct, but they didn’t actually break any laws.”

Meanwhile, Heflin also settled with the city for $600,000.

“If I were to do what the police do, I would be arrested,” Karen Heflin said. “How can they assault my son? I would be in jail for attempted murder.”

Delays in discipline

In Snohomish County, the sheriff last year appeared to be holding some deputies accountable.

Then-Sheriff Ty Trenary fired two deputies in 2019 after an internal investigation found they tried to cover up an improper search of a car trunk that turned up a shotgun, and another for using unnecessary force in the fatal shooting of 24-year-old Nickolas Michael Peters near Bothell.

The Sheriff’s Office checked the boxes on the forms sent to the CJTC — the step that Tukwila failed to take with Hogan — but the state had to wait on decertification proceedings until the officers exhausted their discipline appeals, according to state law.

As they contested their firings, a new sheriff was elected. During his campaign, Sheriff Adam Fortney pledged to “take the handcuffs off police officers and put them on the criminals where they belong.” He overturned the firings and reinstated the three officers.

Their reinstatement meant that the CJTC had to close the cases. They were no longer officially fired.

Since then, Deputy Evan Twedt was filmed punching a suspect on the ground after pulling him from a van, an incident currently under investigation. Fortney and the two other deputies — Matt Boice and Arthur Wallin — were sued this year along with others at the department, for allegedly using excessive force in 2017 and 2018. Wallin was the deputy who shot Peters.

“There are all kinds of cops at a scene but it’s Wallin who commits the violence,” said Jeff Campiche, a lawyer who represented the Peters family in a case Snohomish County settled for $1 million. “He just doesn’t belong in law enforcement.”

Wallin, through his wife, declined to comment for this story.

Boice, one of the deputies fired by Trenary for the car search, said his record is relatively clean, and that the alleged cover-up was a paperwork error.

“I’m very confident if there was some sort of (decertification) hearing that I would have gone to, I would have been successful,” said Boice, the 2016 patrol officer of the year. “Officers are human. We make little mistakes here and there … some of it is more serious than others.”

On average, decertification cases take about two years before reaching some resolution. But they can last much longer as the appeals play out, a provision that critics say delays justice. As one Federal Way officer fought his firing in court, the CJTC waited nine years until it ultimately declined to decertify him.

“It shouldn’t be easy, but it’s extremely difficult to fire an officer,” said Sue Rahr, executive director of the CJTC and former King County sheriff.

Reforms on the agenda

The Legislature considered expanding reasons for decertification in 2014 and, for certain types of misconduct, enabling the CJTC move forward as soon as a police department sustained allegations against an officer.

The Washington Association of Sheriffs & Police Chiefs testified in support of the bill. “If it’s appropriate for the license to be revoked, we think that should be able to happen at any time,” Steve Strachan, the association’s executive director, said in a recent interview.

But the public employee unions aligned with rank-and-file officers fought the measure and it never made it out of committee. It would have been the first significant change to the decertification law since it was passed in 2001.

Since the local and national protests over the recorded police killing of George Floyd, state Attorney General Bob Ferguson has pushed for a statewide use-of-force database and other changes, and state Sen. Jamie Pedersen, D-Seattle, is preparing legislation.

Fixing the “variety of loopholes and defects in the system,” Pedersen said, “is a really central piece to restoring public confidence in law enforcement.”

Unions say they are skeptical of an overhaul to the decertification process, especially if it shifts power from the local agencies to the state.

“The local chief or sheriff is usually in the best place to know whether that termination meets the criteria” for decertification, said Tracy, the state police union president.

He said the union is open, though, to “reasonable conversations about improving policies and police standards.”

In recent months decertification reforms have emerged across the country, from California to New Jersey.

“I think that the public expectation is that if a cop is fired for doing something very bad they would lose their certification — and that’s not the case,” said Rahr, the CJTC director.

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