James Egan: Watching the Detectives

The unlikely story of how a DUI attorney inserted himself into the very public crusade to curb police misconduct in Seattle

Ten years ago, a young attorney walked into a courtroom where then-NAACP head Carl Mack was on trial. It was a high-profile case. Mack was charged with obstructing traffic during a protest over the fatal shooting of an African-American man, Robert Lee Thomas Sr., by a King County deputy—a charge which further inflamed civil-rights leaders enraged at what they considered unjust gunfire.

The young attorney, who was white, had no connection with the NAACP. He was not a known figure around town. He didn't even specialize in civil rights, instead focusing on DUI cases.

"I didn't know him from nobody," recalls Mack by phone from Virginia, where he is now executive director of the National Society of Black Engineers. "He literally just showed up like that."

After sitting through the day's session, the lawyer, James Egan, walked over to the NAACP leader. As Mack recalls it, Egan said, "Look, I want to help."

"I remember looking at him, trying to figure out what was motivating him," Mack says. But it really didn't matter. Mack's attorney, Alfoster Garrett Jr., was himself young and inexperienced. (Garrett would succeed Mack as NAACP president, only to be ousted after allegations of financial impropriety in his law practice.) "Alfoster was like, 'Great, man, I could use the help,' " according to Mack, who remembers his own attitude as being "Fine, I'm down with it."

In the end, the jury acquitted Mack. The case hinged on a video that surfaced in the middle of the trial. Taken by a bystander, it showed Mack stepping into a crosswalk when the light was green, in full compliance with the law.

That ended the case, but not Mack's puzzlement about Egan. "I still to this day do not know what was motivating him," he says.

Others may be wondering that about Egan too. For the most part, he went back to handling DUI cases after lending Mack a hand. Egan, 42, heads an eponymous Pioneer Square firm known for aggressive marketing through full-page newspaper ads, radio spots, mailings to prospective clients, and a new iPhone app that purports to track your blood-alcohol level over the course of an evening. Yet last year, Egan burst onto the scene with another video that he said needed to be seen. Taken by a Seattle police-car camera, it showed four officers interacting with two Hispanic men from Yakima, Miguel Oregon and Hugo Perez, who had been caught speeding on Capitol Hill. The officers unleashed a torrent of taunts and profanity at the Yakima men. Most notorious, one officer declared: "The badge is the only thing preventing me from skull-fucking you and dragging you down the street."

See also: A collection of dash-cam videos obtained by Egan.

The story blew up. Not only did Egan call multiple media outlets, but he deliberately went public with the video on the very day that the federal Department of Justice released its withering report on the Seattle Police Department, condemning its officers for excessive use of force and unnecessary escalation of routine stops.

Egan's role in obtaining and publicizing the video was somewhat curious, however. He learned of the case before he represented Oregon and Perez, and then sought out the two men. By the time he took over their counsel, the city had already dropped a negligent-driving charge filed against Oregon. Egan said he had no plans to bring a civil suit against the city. What did he want? Merely to let taxpayers know the unprofessional way in which some officers were behaving at the time, he says.

That's a theme Egan has sounded in ever more strident terms as he has continued to place himself squarely in the center of the DOJ-fueled drama swirling around the SPD. Over the past year, Egan has unveiled a series of dash-cam videos that he believes exhibit police misconduct. The most recent, released in late November, shows police roughing up and punching a mouthy hit-and-run suspect named Leo Etherly, who had spat on one of the officers. The video, and Egan, made national news. Meanwhile, Egan has called for SPD Chief John Diaz to be fired; labeled Kathryn Olson's Office of Professional Accountability "a sham"; and sparred with the city in court over a public-records request for even more videos.

Egan sees a certain irony in the role he is playing, which, on a recent day in his spacious corner office overlooking First Avenue South, he characterizes in this way: "It really ticks me off that some lawyer that does a DUI practice has to be the agent of transparency for a department that won't police itself."

However, it would not be inconsistent with Egan's past to speculate that this very public role might be an exercise in branding—one that seems to be working, and which may presage another surprising turn Egan only hints at now. At the same time, his zeal for this crusade seems genuine. Whatever his motives, the ways Egan is wielding his shiny new sword grow more interesting as allegations of police misconduct continue to mount.

Egan is not the most natural public figure. He's a little stiff and self-conscious, even when attempting to be lighthearted. Working cases at Seattle Municipal Court one day in early December, he greets a prosecutor who used to work as a state trooper by saying "How's it going, Trooper Jany?", an appellation he will repeat each time he sees her.

She betrays no hint of amusement. "Fine, how are you?" she responds perfunctorily.

A man who mentions a high-school poetry award, notes that he "aced" his law-school entry exam, and boasts that he's "gotten the attention of the police chief, the mayor, the city attorney, and the public," Egan is not skilled in self-deprecation. But when he's not railing against the police, he strives to be affable. When haggling with prosecutors, he never fails to ask them about their weekends. Going across the street to City Hall during lunch recess, he places an order at the lobby coffee stand, whose barista volunteers that Egan is a frequent teller of "bad jokes."

Not missing a beat, Egan gamely offers: "What do you call a cross between an elephant and a rhino?" When the barista gives up, Egan exclaims: "Elephino!"

"That is so second grade," the barista moans.

Such sophomoric humor may have to do with the fact that Egan and his wife have three children under 5, with whom Egan spends most of his free time. They live in West Seattle and are a bilingual household, thanks to his wife and kids, all of whom speak Swedish. Egan met his wife, a native Swede, in Guatemala eight years ago. He was there on a vacation devoted to learning Spanish, while she worked as a school headmaster.

The child of a psychologist and a Boeing statistician, Egan says his first love was writing. After his high-school poetry endeavors, he turned to journalism in college, writing for school newspapers first at Olympia's Evergreen State College and then, after a transfer, at Whitman College in Walla Walla. He planned to go into journalism professionally, but reconsidered upon realizing "it would be a very long climb to success. I envisioned myself writing obits for years." Law school seemed a better bet.

After earning his law degree from the University of Washington and passing the bar in 1998, Egan worked at the Northwest Defenders Association, where he handled cases involving arrested WTO protesters, an experience he calls "formative." There, he says, he learned that officers don't always tell the truth—like the one who'd claimed to be assaulted by a photographer taking pictures of the protest, when in reality it was the other way around.

Yet Egan left NDA after only a year and turned to his attention to DUIs. He makes no bones that he did so "not because of a passion so much for DUI, but because of a legal demand." As a commonplace charge, DUI cases "brought business in the door"—business he could make money on. "I'm not going to be paid by a client charged with trespassing or shoplifting," he says, adding that defendants in those situations are likely to be destitute.

Only a couple of years into his DUI practice, however, Egan took his first puzzling turn: Then 31, he ran for City Council in 2001, challenging incumbent Richard Conlin. What made his campaign highly unusual was his attitude. "I didn't feel comfortable asking anybody to vote for me," Egan recalls.

Instead, he says, he was in the race to publicize his platform: more funding for at-risk youth. Plus, he says, "I thought it would be an interesting way to network." Egan lost in the primary, collecting a mere 14 percent of the vote, but seized a similar opportunity a couple of years later when he ran for a seat on the board of the ill-fated monorail project. Cindi Laws, a longtime Democratic activist and the incumbent in that race, remembers being startled at the end of one forum when her "very nice and very, very polite" challenger announced that he intended to vote for Laws and implored everyone else to follow suit.

The same year as the monorail race, Egan walked into the Mack hearing. "I thought it would be fun to work on," he explains. "The greatest thing about being a lawyer is that, if you're motivated, you can delve into so much intellectual food for thought." With a growing and lucrative practice, he says, "I had the leisure of pursuing what I was starting to see as a passion, which is challenging what I perceived as the unlawful exercise of police power."

Deep in his past, he'd had his own bad experience with law enforcement. As a senior at Roosevelt High School, he was charged with assault and unlawful imprisonment relating to a payback beating of two other students. "It was the wrong James Egan!" he says. Another high-school senior of the same name who went to Ballard High was the man police wanted. Court records do indeed include the prosecutor's admission that her office had charged the wrong person. Though Egan was cleared, he says the episode was a nightmare.

After the Mack trial, Egan maintained ties with NAACP leaders. Garrett moved into Egan's Pioneer Square suite, and the two lawyers again teamed up in 2004 to file a discrimination lawsuit against the Kent School District on behalf of students who had been handcuffed and treated roughly by security guards. (A federal judge ultimately dismissed the case.)

Former NAACP board member Sakara Remmu also turned to Egan to represent her in discussions with a hospital she believed was discriminating against her. Remmu had a very young son who was being treated for neuroblastoma, a virulent form of cancer. Remmu, who says she cannot name the hospital due to the confidential settlement eventually reached, says that what sent her over the edge was a nurses' order not to cry, because crying made them "uncomfortable."

Remmu says she needed somebody who could "feel the case." Egan "wound up being that person."

Yet all along, DUI cases remained Egan's bread and butter. In fact, it was this staple that eventually led him to his latest preoccupation.

Over the years, Egan has deployed a variety of tactics to build his DUI business. His prolific marketing efforts include newspaper ads that incorporate his perspective on law enforcement: "What you should know BEFORE being stopped for DUI," one full-page ad reads. One recommendation: Switch on your cell phone's recorder before being approached by an officer so you can capture the conversation and document any potential "police coercion." The ad elaborates: "As recent events show, recordings of police bullying don't lie and may help you."

Among his peers, Egan is also known as a practitioner of what is called "jail mailing"—in which an attorney looks at public records to find out who's been booked into jail and then sends them marketing material upon their release.

In some legal circles, the practice is regarded with disdain. "I believe it's the opposite of what a lawyer should do," says lawyer Bill Kirk, who recently spoke on the subject at a meeting of the Washington Foundation for Criminal Justice, a nonprofit comprising DUI attorneys. He says jail mailing encourages a damaging stereotype of the "slimy ambulance-chasing lawyer."

"I'm not chasing ambulances," Egan counters. "I'm putting things in the mail, and they can call me or not. We're a business."

About five years ago, Egan launched another business-building strategy. He began to file public-records requests with the police department, asking for all OPA findings that are sustained—that is, every case in which the office has determined a citizen's complaint about an officer to be valid. Egan has compiled these findings into a database that he calls "a library of misconduct cases."

When his firm takes on a case, Egan explains, he and his team can run the arresting officers through the database to see if they've ever been found in the wrong. He portrays the database as "one of the benefits of hiring this firm."

In May 2011, Egan made his usual request for OPA findings. He says the department was slow getting back to him. Finally he got three files. One was about a parking-meter attendant who was ripping up the tickets of a friend. Another concerned an officer who ran a police car into a post. Then there was the third one: Egan says it was "voluminous."

That was the infamous "skull-fuck" case, which resulted in three of the officers getting suspended for their profanity. Egan was not content to file this one quietly away in his misconduct database. He wanted to see the dash-cam video. "I'm very curious," Egan explains. "Who are these officers?" Egan suspected that racial bias had played a role.

Seattle Police, however, told Egan that releasing the video "would violate the suspects' right to privacy. " The only way he could get it was if he represented suspects Oregon and Perez. So Egan tracked down the two men through Oregon's public defender and signed them as clients. After what Egan claims was five months of stalling, he finally got what he wanted in November 2011.

As Egan saw it, the video was a revelation, betraying inconsistencies with the officers' version of events. The police report claimed that Oregon had said, "You fucking pussies, that's why you cops are all getting blasted, you motherfucker, wait until I bring my homeboys." But that can't be heard on the video. Egan charged that racism, rather than suspected gang activity, was the real reason behind the officers' cuss-fest, something the OPA hadn't delved into.

Egan wanted to talk about it with none other than Chief Diaz, dashing off a letter to request a meeting. Diaz didn't respond—"which is offensive to me," Egan says. Police spokesperson Sean Whitcomb says simply that Diaz is "a busy man."

Egan insists he wasn't contemplating a lawsuit. "What are the damages?" he says, indicating that the best Perez and Oregon could claim was "emotional distress." Instead, he says he wanted "changes" in the police department, including racial-sensitivity training. When his requested meeting with Diaz didn't pan out, he went to the media.

His well-timed splash in December 2011, coinciding with the DOJ report, was covered by a number of media outlets. Just as important, it got the attention of a computer- security consultant named Eric Rachner.

Police video had become something of an obsession for Rachner. In 2008, he was arrested during a game of "urban golf," which involved putting Nerf balls on the sidewalks of Capitol Hill. The geeky fun was interrupted when a bystander was hit by a ball. One of several police officers responding to the scene stopped Rachner and asked for his ID. "I decided to teach him a civics lesson," Rachner says. He declined to comply, as he believed was his legal right; though he'd had nothing to do with the initial incident, he was charged with obstruction of justice.

The charge was dropped. But Rachner, still furious, wouldn't let it go. Through a public-records request, he learned that five videos of his arrest, taken from different cars, had not been turned over to him when the case was still being prosecuted. "That's unbelievable," he says. "I started researching." Finding the purchasing contracts for Seattle's video system, he discovered that each dash-cam video taken is permanently recorded in a log. So he then requested, and obtained, the logs of all videos made between July 2008 and July 2011.

To a techie like Rachner, the logs were a gold mine of information. He figured out that each time a copy of the video is requested, a record of that request is kept in the log. With some simple code, Rachner could search the data to find out every time that, say, the OPA had requested videos relating to any particular officer. In other words, he could find out which officers had been investigated, how many times, and, often, for what reason.

When Egan's "skull-fuck" video made the news, Rachner picked up on the name of one officer, Brett Schoenberg, who had arrested a fellow golfer during the 2008 debacle. That golfer, David Hulton, had been charged with assault, though the city later dismissed the charge for "proof problems." Rachner and Hulton subsequently filed a lawsuit against the city, charging, among other things, that Schoenberg had trumped up the charge out of maliciousness and a bizarre aversion to urban golf. The case resulted in a $45,000 settlement. (SPD spokesperson Whitcomb declined to comment on the case).

"I reached out to Egan," Rachner recalls. "You know, I have some videos of Schoenberg," he says he told the lawyer, alluding to the urban-golf case. Then Rachner explained how Egan could get even more by using the logs, which the computer sleuth offered to turn over.

Egan was more than a little intrigued.

"This is great!" Egan enthuses. He's sitting at his desk, looking at one of two flat-screen computer monitors that sit side by side. On it is Rachner's database. Egan highlights one entry. "On November 17, 2009, these guys"—he names a couple of officers—"were investigated by the OPA for use of force."

Just because he has the logs, though, doesn't mean he can get the videos. Soon after Egan got his treasure trove of information, he filed a public-records request for all the videos requested by the OPA involving the four officers in the Perez/Oregon case—36 videos in all. The police department balked, again citing privacy laws. Egan threatened to sue and seek maximum financial damages under the Public Disclosure Act if the department didn't cough up the videos in two weeks. City Attorney Pete Holmes sued Egan instead.

Holmes' office explains that the suit was a "declaratory judgment action," which merely seeks a ruling on whether a requested document must be disclosed. No punitive action or damages are at issue. The city attorney's office claims it needed a judge's opinion because Egan's demands seemed to contradict a state law that requires videos to be kept from the public until the resolution of any litigation. No court action was pending relating to the videos Egan requested, but in the city's expansive view, the law took in potential suits as well as current ones.

As for the city's suit against him, Egan says, "It doesn't matter [what it's called]. It consumed hundreds of hours of my legal time."

Ultimately, King County Superior Court Judge Dean Lum eviscerated the city, calling its suit "completely unnecessary" given that the very same issues of police videos and privacy were being decided in another courtroom, thanks to a suit filed by KOMO-TV. Lum dismissed the city's suit against Egan and handed the lawyer roughly $15,000 for his time, though he did deem Egan's request for between $65,000 and $83,000 "unreasonable."

Both Egan and the city are appealing, the city contesting the overall decision and the lawyer seeking more money and a designation that the suit constitutes a "SLAPP": a strategic lawsuit against public participation. Judith Endejan, a veteran public-records attorney who represented KOMO in its battle with the city, says she's had "frank discussions" with Egan about the wisdom of pushing the SLAPP argument. She says the SLAPP law is a new one, never before used in connection with a public-records request, and judges generally don't like awarding punitive damages, as SLAPP would demand. "He got what he wanted," Endejan says while puzzling over Egan's desire to go for the jugular.

But she says that when the city sued him, something "flipped" in Egan. Indeed, it's clear from talking to Egan that Holmes' suit was a personal affront. "It pissed me off!" he fumes. "They underestimated me—badly."

Egan, competitive and aggressive enough to have played rugby in college, made a decision. "'You know what?" he thought. "You guys are trying to play games. I'm going to go digging." Or, as he rephrases it, "Let's go shopping!" It's an odd statement, but Egan says he uses the word "shopping" because he pays 10 cents a page for records.

Seattle's police department, which often has said it struggles to keep up with voluminous public-records requests, did indeed seem to be complaining when it issued a statement recently noting that Egan had made 316 records requests since 2008. But the SPD, straining to improve its image in the wake of the DOJ report, has not directly criticized Egan, whom spokesperson Whitcomb calls "polite" and "civic-minded." Whitcomb says the statement was merely making the point that Egan "knows the process," including the delays involved.

Desiring to show that he wasn't going to roll over, Egan refined his strategy. This past spring, ruling on the KOMO suit, King County Superior Court Judge Jim Rogers upheld the SPD's interpretation of the law regarding videos. The department could refuse to release them for three years, even though, pursuant to SPD policy, it could also destroy them immediately after that. So Egan began searching continually through Rachner's database with an eye toward the dates. Exactly one day after any given three-year period was up, Egan would request the video from SPD.

"That's how I found Fuller," Egan says. He's referring to Donald Fuller, an African-American truck driver who felt he was being discriminated against when he was stopped by police in 2009 for jaywalking, then Tased and arrested for obstruction of justice. Fuller complained to the OPA, resulting in that office's request for a copy of the relevant dash-cam video, which left a bread-crumb trail for Egan to trace. He requested the video, which showed disappointingly little. So he asked for the whole OPA file.

When Egan got the file, he saw material he could run with. Despite police assurances that the OPA process would not bring retaliation, the file revealed that Fuller had been charged only after filing the complaint, due to the prodding of an OPA investigator.

"I was elated," Fuller says, recalling a call he got from his then–public defender telling him that another lawyer, Egan, was interested in talking to him. Fuller says he didn't know about the OPA investigator's intervention before Egan filled him in. "I'm happy with his enthusiasm," Fuller says of Egan, although he muses that his new attorney is on a "learning curve."

Given Egan's DUI specialty, such a curve would be understandable. Nevertheless, Egan's efforts resulted in a judge vacating Fuller's conviction just before Thanksgiving. That same week, Egan filed a $1.5 million claim for damages against the city on Fuller's behalf.

Egan is extremely touchy about the suggestion that his motives are monetary. Without being asked, for instance, he writes up a "personal statement" that declares his motivations "largely altruistic." In conversation, he offers that civil-rights lawsuits usually don't pay much, and if they do, the payout "is a long time coming." He is similarly defensive about the notion that he might be in it for the attention.

Rachner backs Egan up, pointing out how much time the lawyer has spent on cases that offer no obvious financial rewards. "He's got a huge amount of skin in the game," Rachner says.

Attorney Cleve Stockmeyer, who represented Rachner in his public-records suit against the city, calls Egan a "hero" for what he's done to bring questionable police conduct to light. Stockmeyer, who ran for a different seat on the monorail board the same year Egan launched his own campaign, has recently teamed with Egan on several cases. In one, involving a man who called 911 because he was frightened by a strange-acting police officer, the duo won a $50,000 settlement from the city, including attorney fees.

Asked what he thinks motivates his newfound ally, Stockmeyer answers for them both: "We do it because we believe in justice, and we do it because it's our business."

In late November, shortly after he prevailed in the Fuller case, Egan called a press conference to announce that he had another damning police video—"the worst" he said he'd seen, and one he promised would "make the public's jaws hit the floor."

That was the video of Leo Etherly, the hit-and-run suspect. Etherly had been referred to Egan through someone aware of the lawyer's police-misconduct work. Egan agreed to represent Etherly, who had been charged with assault for spitting on an officer, and obtained the dash-cam evidence through the pretrial discovery process. The problem, Egan told reporters, was that he wasn't allowed to make that copy of the video public because of the rules of discovery. And police were dragging their feet on fulfilling a simultaneous public-records request for a copy he could share. Therefore, Egan announced, he was suing the city.

The very next day, the SPD reversed course and made the video public. Among the many media outlets that covered the story was Right This Minute, a national TV show that advertises itself as showing "videos before they go viral."

Egan calls up the video online. "Look at this!" he exclaims. "I put this video out 48 hours ago, and there are 35,000 downloads. I've never seen anything like that." But he's less enthusiastic about some of the comments. Wrote one YouTube poster: "This is just the kind of situation which has James Egan licking his chops and seeing dollar signs."

What's more, Dori Monson (see Ellis Conklin's "Monson Season," Dec. 12, 2012), who had Egan on his radio program along with Etherly, pointedly told the attorney on the air: "If you end up going after the city or the police department, I think I'll be pretty ticked off." Monson's remark stemmed from his view that Etherly had brought the cops' rough treatment upon himself. Etherly, stopped on October 6 near a white van that matched the description of a vehicle that had hit a bicyclist, balked when asked his name by one of the three officers who questioned him. "Don't worry about my name! What's your name?" he shouted. When the officer subsequently told him to turn around and put his hands behind his back, Etherly resisted and, according to police, eventually spat on an officer. (Police say Etherly is still a suspect in the hit-and-run.)

Yet plenty of people called the officers' conduct into question too—specifically the actions of Eric Faust, who's under investigation by the OPA. On the video, Faust can be seen forcefully applying his hand to Etherly's face and throat to push the suspect's head away while handcuffing him. Etherly complained he was being choked. After Etherly apparently spat on Faust, who declined to comment for this story, the officer punched him in the face. Egan says his client has permanent eye damage as a result.

"I don't think it showed anything I would describe as atrocious," says former Seattle police chief Norm Stamper of the video. But, he adds, "What I saw showed escalation rather than de-escalation." The two officers seemed pretty calm until a feisty Faust showed up, elaborates Stamper, who adds that "a calm, quiet, measured voice has a much more positive affect than shouting." (Granted, Etherly also could have benefited from Stamper's advice.)

Even if Egan's "worst" hype didn't pan out, making the video public was a "public service," Stamper says. Lisa Daugaard, deputy director of The Defender Association and a critic of racial bias in policing, agrees, saying that videos of actual police interactions with the public "make real" for people what is otherwise "theoretical and hard to believe."

For that reason, it may not matter where Egan's coming from. As for where he's going, he says politics is out. "I have no interest in playing that game," Egan says. "It's hard." He talks like a politician, however, when he promises "more creative projects on my desk around improvement of quality of life in Seattle and beyond." To wit: He, Rachner, and Stockmeyer have been discussing the idea of forming a nonprofit devoted to police accountability.

He hasn't given up on profit, though. Egan allows that he has entrepreneurial ambitions. "I hesitate to discuss any projects on my desk, lest I undermine them," he says. But then he refers to Washington's just-passed initiative legalizing marijuana: "I think that Initiative 502 is destined to reap fortunes for Washington state and for bold souls who implement creative ways to market the new legal product to the masses."

The implication is obvious, but Egan won't confirm that he's eyeing a way to get in on the green rush.

On the December day when Egan is at Seattle Municipal Court, he strides into a ninth-floor hallway wearing a fitted black coat and orange backpack. Although he's back to his everyday cases, he's still got a buzz from the Etherly drama that broke the week before. "Did you see the recent video?" he asks another defense attorney as they both stand in line to talk to "Trooper Jany" about possible pleas and pretrial motions.

"I heard about it," the attorney says.

When it's his turn to sit at the little table stationed by the prosecutor in a conference room outside court, Egan tells her that the government is going to want to downgrade the charge against his client, accused of DUI. "He's got a recording," Egan says. "It's hilarious!"

According to Egan, his client can be heard saying that he has only a seventh-grade education and cannot read and write. Yet Egan says the officer does not recite the warning legally required before asking for consent to administer a breath test. Instead the cop asks the man who has just said he's illiterate to read the warning himself. Therefore Egan is going to ask that the breath test be excluded from evidence.

Jany doesn't react much to the information. Her job is to move the case along, and since Egan wants a trial date, she gives him one. Later, in another conference room, Egan gives his client a pep talk. "I'm trying to avoid a DUI here. I think we've got a shot," he says. "We're just going to put the heat on."

That's exactly what his client wanted. The 27-year-old, who requests not to be named, recalls how he heard about Egan through a friend. "Hey, I've been seeing this guy on TV," his friend said. "This dude's really sticking it to the SPD!" 

nshapiro@seattleweekly.com

 
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