Today’s announcement by King County Prosecutor Dan Satterberg that criminal charges will not be filed against Seattle Police Officer Ian Birk in the Aug. 30, 1010 shooting death of woodcarver John T. Williams will leave many people doubting the criminal justice system, and it is clear that this case is still not "closed."
Satterberg’s decision will give more ammunition to Seattle’s knee-jerk reflex cop-bashers, while according to the Seattle Times, the dead man’s brother, Harvey, expected the outcome, stating that “The laws protect anyone in office.” The on-line SeattleP-I.com notes that one city councilman, Bruce Harrell, has jumped into the fray, and that this afternoon, Mayor Mike McGinn will weigh in. (This column will update.)
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BULLETIN: Hours after Satterberg released his decision, and the Seattle Police Firearms Review Board formally released its determination, Officer Ian Birk resigned from the department. This announcement also followed a press conference held by Mayor McGinn, who clearly indicated he would seek to have Birk fired.
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The prosecutor’s decision does not square with the findings of the SPD’s Firearms Review Board, which decided unanimously that the shooting was outside of the department’s training parameters and policies. More about that in a moment.
"I didn't really expect anything to happen. I didn't expect charges. The laws protect anyone in office. Nothing has changed."—Harvey Williams, brother of woodcarver John T. Williams
In the firearms community, there is reason to raise an eyebrow as well. Washington State statute has a dual standard for the justifiable use of lethal force, one for police officers and the other for private citizens. Under the existing statutes, RCW 9A.16.040 and RCW 9A.16.050, peace officers, public officers and “persons aiding,” are held to a higher standard than “other persons” who are acting in defense of themselves, members of their families or other innocent persons in their presence.
In his statement, Satterberg said this about the law:
“Washington law gives police officers more protection against criminal prosecution for homicide than it gives ordinary citizens. Washington law directs that police officers who use deadly force when confronting an armed suspect shall not be prosecuted for any crime – as long as they are acting in good faith and without malice.”
He referred to Section (3) of 9A.16.040, which clearly protects police officers from prosecution if they use deadly force “in good faith” and without malice:
"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."
Yet, there is a Legislative footnote at the end of 9A.16.040 that makes it clear the permissible use of lethal force by police officers is not as broad as that used by private citizens under the language of 9A.16.050:
Legislative recognition: "The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens' permissible use of deadly force under the authority of RCW 9.01.200, 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers."—RCW 9A.16.040
So, where does this place the armed citizen in Satterberg’s eyes? Probably the same place that citizen has always been, even back in the days when Satterberg worked under the late Norm Maleng. This column cannot recall once case in which the King County Prosecutor’s Office made a wrong call on a self-defense shooting by a private citizen, and there have been several justifiable self-defense shootings by private citizens over the past 25 years in King County, along with some that were not. The prosecutor’s office has a strong track record for being able to tell the difference. This column previously challenged armed citizens to look at a police shooting, in Bellevue, to see what they would and could do under state law here.
"Homicide is also justifiable when committed either:
(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or
(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is."—RCW 9A.16.050
Birk is hardly “out of the woods” because Seattle Police Chief John Diaz confirmed today what had been earlier reported about the Firearms Review Board’s determination that the shooting was not justified. The panel found that the use of a firearm was not necessary in this incident. The board also found, according to Diaz, that Williams did not pose a serious threat to Birk or others. Diaz said the process will move forward with a resolution sometime in mid-March, and he told a press conference that Birk has a right to due process. It would be a pretty safe bet to expect that Birk will ultimately be fired. The department has posted links to the case on its website here.
Birk could also face a federal civil rights investigation, and civil litigation.
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Comments
"The prosecutor’s decision does not square with the findings of the SPD’s Firearms Review Board, which decided unanimously that the shooting was outside of the department’s training parameters and policies."
To some extent that's true, but remember they're dealing with different standards. Under Washington law, a prosecutor must not only be convinced that there is "probable cause" to believe a suspect committed a crime (i.e., the suspect more likely than not committed the crime), but ALSO that a jury is reasonably likely to convict the suspect. E.g., RCW 9.94A.411: "Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact finder." Thus the prosecutor must weigh not only the "bare evidence" that would support conviction, but also the defenses that will likely be raised, and consider whether, on balance, conviction is likely. Given the results of the non-binding inquest (a very split jury faced with a lesser standard), I would have to agree with Satterberg's apparent conclusion that getting a 12-0 jury verdict of "guilty" was not in the cards. The decision to decline charges is therefore appropriate.
And I have to agree: While there may be much to gripe about in King County, we have been well-served by our county prosecutors for many years.
Excellent article. Lightening Jeff's comment also. Now we wait and see.
We need to amend 9A.16.040(3). A 'good faith belief' standard is too low of a bar, as this case demonstrates. The officer's opinion of whether deadly force was necessary should be irrelevant with respect to the law.
Just as doctors have to follow a 'standard of care', it should be the police profession's standard of justifiable deadly force that must be followed, not an individual officer's belief.
RCW 9A.16.040 lays out when cops may justifiably commit homicide, and 9A.16.040(3) says they have to have a good faith belief without malice that they are obeying the restrictions in 9A.16.040.
No where else in law is anyone exempted from criminal charges based *solely* on their own personal belief that they were following the law.
When a citizen commits justifiable homicide, they not only have to judge that deadly force or severe bodily injuring was imminent, but the facts of the case have to back that up.
I'm all for cops being protected from criminal charges when they use justifiable force, so long as the facts of the case back up their judgment. In this case, the facts don't back up the cop, and this failure of the law needs to be redressed.
Perhaps adding a clause to 9A.16.040(3) that requires the facts of the case to generally substantiate the officer's good faith belief.
The shooting was unjustified and the man shot was deprived of his life without cause.
This officer should spend the remainder of his life in prison as should the people who taught him that it is proper to identify someone carving a block of wood, threatening no one, as a target, and then shooting him to death while claiming justification.
That way maybe the people will begin to believe that there aren't two justice systems, depending upon who you are. But that isn't likely to happen since the state needs it's trigger pullers and doesn't want to offend any of them.
It doesn't matter to the state that the rest of us are offended by their lack of support for our rights and the rights of an innocent, murdered man. That killing, which is not justified, is called murder and the state will now allow a state sponsored murderer to walk away without consequences because it suits the state's interests to do so.
One cop to another, you have to be crazy to think that the people will not remember this and react accordingly.
This prosecutor would not hesitate to file charges against a citizen even if the evidence showed that the citizen likely acted in self-defense. He would not care if a jury would likely convict, it wouldn't even likely cross his mind. He is just covering for a fellow Tyrant.
Sorry, 'theaton' but you're blowing hot air. This prosecutor has never made a wrong call on a true self-defense shooting in my memory. I know the guy, and I know some of his staff. They have a clear understanding of this state's statutes on self-defense.
He's not covering for anyone. He's following the state statute.
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