When former Seattle Police Office Ian Birk shot and killed Native American wood-carver John T. Williams for little reason other than he didn't like the look that Williams gave him, there was small chance that Birk would be charged with a crime. That's because Washington state law protects officers who use deadly force, no matter how unjustifiably, so long as they do so without "malice," or the intention of committing a crime.
But what about when they use non-deadly force? Like, say, in the case of SPD Officer James Lee, charged with fourth-degree assault for savagely kicking a 17-year-old boy in a convenience store? Turns out that the law offers far fewer protections for officers who choose kicking the crap out of people over shooting them.
Officer Lee's incident went down Oct. 18, following what was reported as a botched drug "buy-bust" by officers in Belltown.
Supposedly, two undercover SPD officers had earlier been lured into a parking garage where they thought they would be sold crack cocaine. Instead they were surrounded and attacked by a group of black males.
Afterward, all hell broke loose as suspects and others fled the scene.
One 17-year-old boy--later determined by a jury to have had nothing to do with the buy-bust--ran into a convenience store.
That's when this happened.
Shortly afterward, Lee carried on his violent streak.
He punched this guy.
And then he stomped on this guy's head.
So now Lee has been charged with an actual crime--something almost unheard of in this day and age. He's not being charged with punching the dude on the street or stomping on the head of the other suspect, mind you. But the fact that he's being charged at all is pretty incredible.
But what does the law say about charging officers with assault?
RCW 9A.16.020 addresses the use of force by everyone, including peace officers, and says:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction.
By contrast, RCW 9A.16.040 is an entire statute dedicated to all the ways that an officer can escape charges for killing someone while in the line of duty. Among them:
"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."
That essentially means that if a cop believes he or she needs to kill you "in good faith," then he or she is free to do so.
There is no such burden of proof for prosecutors with an assault charge.
The key in Lee's case may be whether the kick he delivered was "necessary" and "in the performance of a legal duty." The "legal duty" part seems fairly easy to prove. The "necessary" bit . . . not so much.