Donald Fuller says a complaint he made with the Seattle Police Department's Office of Professional Accountability (OPA), instead of determining whether he had been the victim of excessive force and biased policing, directly led to him being charged with a crime he otherwise wouldn't have. Now, with the help of Seattle attorney James Egan, he's headed to court intent on clearing his name, and shining a light on string of events Egan classifies as "a major scandal."
It was a fateful moment, that over three years later is still impacting Fuller's life.
What happened next is at the center of a motion filed last week by Fuller and Egan, a lawyer and constant thorn in the side of SPD, especially the agency's protocol regarding the release of public documents and videos related to criminal investigations.
According to 3-year-old police reports and the findings of an OPA investigation obtained by Egan through public records request, when confronted by police about the alleged jaywalking, and ordered to present identification, Fuller felt harassed and singled out because of his race. He refused to show ID to the cops, and instead reached for his cell phone, he says intent on calling the officers' supervisors regarding what he considered an obvious act of racial profiling.
"I had nothing to hide," says Fuller. "To me their whole intention wasn't public safety. It was nothing like that at all. I thought it was racial profiling."
Fuller's acts of defiance didn't go over well with the officers on the scene, and the decision was made to place him under arrest for obstruction. When one of the officers stepped forward to grab Fuller, police reports indicate Fuller knocked the officer's hands away, at which point the taser was brought out.
As a statement filed after the incident by one of the officers on the scene, Tad Willoughby, notes, "I pulled my taser out and said your [sic] going to get tased. Officer Johnson grabbed his taser and attempted to taser the suspect with a cartridge probe launch and as he did that I attempted to grab the suspect's right arm and was attempting to taser the suspect too. The suspect took one swing with his right fist and caught the right corner of my glasses causing my glasses to break and cut the right eyebrow area of my face. I held onto the suspect and he and I fell to the ground. I could feel Officer Johnson's taser working as I lay on the wires beneath me."
Or, as SPD Officer Donald Johnson tells it in police reports: "Officer Willoughby and I were attempting to arrest suspect/Fuller for Obstruction. As I reached out both hands for Fuller, Fuller slapped my hands away and began to move away from me. Officer Willoughby yelled at Fuller, "You're going to be tasered!" I shot my taser prongs at Fuller, striking him in the upper body and saw no effect. I then observed Fuller strike Officer Willoughby to the face and Officer Willoughby [sic] glasses flying away from his face. I then a [sic] touch stun to Fuller's right leg and he straightens up and fell to the ground while still holding onto Officer Willoughby. I yelled at Fuller to stop resisting. I did 2 more touch stuns to his right leg until Officer Willoughby could get out of Fuller's grabs and Fuller was on his stomach. I then grabbed his right arm and gave it to Officer Willoughby. I noticed that Fuller's left arm was still underneath and ordered him to put it behind his back. Fuller did not respond and I gave him one right knee strike to the left side of his body. Fuller stated that he could not move his arm. I reached underneath Fuller and pulled his left arm out from underneath him to place it into handcuffs.
Fuller contends he never intended to hit an officer, and says the contact was caused by the fact he was being tased while at the same time grabbed by police.
"I thought the world basically had come to an end at that point," says Fuller of being tased. "As I'm on the ground with both officers, as I feel the taser, I'm literally screaming at the top of my lungs 'Why do you keep tasing me? This thing hurts.' I heard one officer say 'You're resisting arrest.' I said, 'What do you mean I'm resisting arrest? My body is locked up!'"
Once Fuller was subdued enough to be handcuffed he was placed under arrest and booked on suspicion of assault, obstruction and resisting arrest. In a precinct holding cell, Fuller says, thanks to the multiple taser shocks he received, he started to feel faint and had trouble breathing - so he was transported to Harborview Medical Center for treatment. He recalls being handcuffed to his hospital bed during his stay.
"The experience of a taser really had me in la-la land," says Fuller of the ordeal, which he and Egan say has led to half a dozen visits to the doctor, episodes of post traumatic stress, and continued hip problems in the time since. "My acute awareness was off key. My sense of balance, my sense of trying to make sense of what was going on was really just lost. I was really stunned. I was seriously just knocked into another world, trying to figure out what's going on, why is this happening, and why does it seem like more negative things are happening."
Released from the hospital and into police custody a few hours later, Fuller spent a total of four days in jail - all stemming from his initial confrontation with police over jaywalking. On March 10, 2009, citing insufficient evidence, the Seattle City Attorney's Office decided not to charge Fuller, and he was released a free man.
The next day Fuller walked into the SPD's OPA - the entity in charge of investigating civilian complaints of police misconduct -- and filed an official complaint. He contended \, as he had from the moment he was confronted by police, that the entire incident was a result of biased policing, and that the force used on him was excessive.
"I definitely wanted the general public to understand that Seattle's finest have issues dealing with people even on the simplest levels, and the tactics they used were truly horrendous, uncalled for, unnecessary and unprofessional," says Fuller of his decision to file the complaint. "I was just hoping someone could review my complaint and side with me by saying 'Yeah, how these people handled you was something that was unnecessary'"
But instead of getting closure, Fuller was charged with crimes prosecutors had initially concluded there wasn't enough evidence to support - obstruction and assault. A jury convicted Fuller of obstruction, but the assault charge didn't stick.
"I just wanted to let people know that we, as citizens, need to clean up the system," says Fuller of his motivations for filing a complaint with the OPA. "[Afterward] I felt they had betrayed me. There was a lot of distrust."
There are many problems with the way this all transpired, according to Egan, who says he only started representing Fuller after stumbling upon the case thanks to his practice of making vast public records requests once SPD's mandatory three-year waiting period on the release of such records expires. Egan says he took Fuller's case to help fix a broken system, and not for any monetary incentive (the motion filed last week seeks only to vacate Fuller's obstruction conviction).
Most importantly, Egan says the main issue at hand - at least legally speaking -- is that the OPA investigator who was tasked with looking into Fuller's complaint lobbied for, and eventually convinced the City Attorney's Office to change its mind and file charges it otherwise wouldn't have. That action, as Egan's motion argues, represents a vindictive prosecution.
"This kind of a motion is extremely rare. There are not many circumstances where one can make a claim for vindictive prosecution. At the same time, this is one of the most evident cases that I've ever seen," says Egan. "Mr. Fuller was free to go. Mr. Fuller would not have any charge from this at all except for his exercise of a First Amendment right of petition, which is to complain to the police about the police's misconduct."
"I'm passionate about police misconduct issues," offers Egan, who along with filing the motion to vacate Fuller's conviction says he's also filed a personal complaint with the OPA over the way the matter was handled. "I feel like now's the right time to make some changes."
"I don't put bread and butter on the table with cases like Mr. Fuller's," Egan says. "I'm not looking at a pot of gold here."
While the particulars of Egan and Fuller's legal argument and allegations of a vindictive prosecution are now destined to be argued in court, a follow-up form filed by OPA Investigator Caryn Lee as part of Fuller's OPA compliant (and part of the pile of documents obtained by Egan under public records request) clearly shows that the OPA did take a peculiar interest in seeing that Fuller was charged.
As Lee noted on May 19, 2009: "I spoke with Marc Mayo with the City Attorney's Office. After respectfully listening to his explanation [about why Fuller wasn't charged], I explained I did not agree with his decision. He agreed to reconsider after determining it was a legal stop and the Officers had PC. He said at a minimum he would file Obstructing charges and possible the Assault on Officer Wiloughby. He said he would get back with me."
We now know what the City Attorney's Office ultimately decided - bringing the charges back from the dead and throwing them Fuller's way. Adding insult to injury for the accused jaywalker, the OPA investigation into Fuller's complaints found claims of biased policing to be unfounded, and all officers involved were exonerated of unnecessary use of force.
"The Criminal Division of the City Attorney's Office makes charging decisions independently of the OPA," says Seattle City Attorney's Office Communications Director Kimberly Mills in face of Egan's allegations. "That said, we're reviewing the claims made by Mr. Egan on behalf of Donald Fuller."
If, by chance, the City Attorney's Office was influenced by the lobbying of an OPA investigator, the decision to reverse course and charge Fuller would seem to go directly against information distributed to the public on the OPA's website. Within the section of the website dedicated to the OPA complaint process, and under the header "Is it safe to make a complaint?" the website notes: "Yes. Department policies prohibit retaliation against citizens for making a complaint."
"[The charges were filed] to get back at a guy who had a legitimate complaint against the police," says Egan, noting that Fuller's conviction for obstruction prevents him from potentially suing over the incident. "All I needed to do was connect the dots to make this motion. "
"That prosecutor never should have taken that call," says Egan. "[OPA Investigator Caryn Lee was] operating out of her own vendetta."
A "Certification of Completion and OPA Disposition" sent from OPA Civilian Director Kathryn Olson to Captain Mark Kuehn as part of Fuller's OPA investigation perhaps provides the case's biggest red flag -- indicating this isn't the first time a scenario like Fuller's has played out.
OPA Civilian Director Kathryn Olson
I note that after reviewing this case and at least one other in which OPA-IS had contact with the Prosecutor's Office with questions regarding charging decisions, the OPA Auditor expressed concern that a conflict of interest could arise through such contact. Though contact is sometimes necessary to gather information relevant to an investigation, care must be taken to avoid even the appearance that OPA-IS is attempting to influence a prosecution involving an OPA-IS complaint. After discussion with the OPA Director and Captain Gleason, it was agreed that at minimum, where there is a fling recommendation regarding the complainant, the recommendation should be reduced to writing and approved through the OPA chain of command.
Of course, as with most things, it depends on how you look at it. While Olson has not been made available to Seattle Weekly for comment on the situation, Aaron Pickus, spokesperson for the mayor's office, says Olson's note indicates the OPA Director independently identified the issue of "the appearance that OPA-IS is attempting to influence a prosecution involving an OPA-IS complaint," and dealt with it appropriately. Pickus points out that Olson subsequently changed agency policies regarding how such situation are handled, recommending filing recommendations from the OPA "should be reduced to writing and approved through the OPA chain of command."
Olson was recently appointed to a second term as civilian director of the OPA by Mayor Mike McGinn, who touted her thoroughness, professionalism and objectivity in the post. The Seattle City Council must now approve the appointment.
SPD declined to comment on the specifics of the allegations made by Egan and Fuller because "it is the subject of the complaint and the matter is before the court," according to SPD Sergeant Sean Whitcomb, the agency's public affairs director.
As for whether or not OPA influences charging decisions with any regularity, Whitcomb says it's likely unusual.
"I imagine it would be very infrequently," Whitcomb offers.
Egan, however, isn't soothed.
"I don't think Mr. Fuller is an anomaly, by any shape or form," says Egan. "I like Mr. Fuller. He's my client. But do I think he's the only person who went through this situation with Seattle Police? Not at all. And I can prove it with their own documents."
Previously on The Daily Weekly:
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