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Officer Birk Could Have Been Charged With Manslaughter
Photo copyright Sean Balch 2011.
King County Prosecuting Attorney Dan Satterberg announced yesterday that the county will not seek criminal charges against Seattle Police Department officer Ian Birk in the shooting death of Native American woodcarver John T. Williams.
Based on the Birk inquest findings, any person other than an on-duty police officer almost certainly would have been charged with manslaughter. But the state legislature has decided to treat police and other safety officers differently than you and me. Specifically, state law provides that “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.” Police officers, in other words, get special treatment by the law.
Satterberg explained yesterday that Officer Birk acted without malice and in good faith, and therefore could not be charged under state law. But there is reason to question that conclusion. And what may be the key question did not come up at Birk’s inquest.
The purpose of an inquest is to determine facts that can be used by the prosecutor to decide whether to charge a person with a crime. Two key questions in the Birk inquest informed Satterberg’s decision. First, "Did Officer Birk believe that John T. Williams posed an imminent threat of serious physical harm to Officer Birk at the time Officer Birk fired his weapon?" The jury split 4-4 on that question. Second, "Based on the information available at the time Officer Birk fired his weapon, did John T. Williams then pose an imminent threat of serious physical harm to Officer Birk?" One answered yes, four answered no, and three answered unknown.
These findings suggest that Birk objectively did not have a reason to shoot Williams although subjectively he thought he did. That would be enough to charge a civilian with manslaughter either in the first degree (recklessly causing a person's death) or second degree (causing a person's death with criminal negligence).
The inquest findings justified Satterberg’s conclusion that Birk acted without malice and in good faith. But the statute requires more than just that. The statute also requires that an officer’s use of deadly force was “with a good faith belief that such act is justifiable.” In other words, the officer must in good faith believe he was in a situation that justified the use of deadly force. State law says police are justified in using deadly force when they believe person they apprehend "has committed, has attempted to commit, is committing, or is attempting to commit a felony.” The inquest board was not asked whether that condition applied in Birk's case.
However, the city's Firearms Review Board, an internal police investigative group, found that Birk's use of deadly force was not justified under those criteria. They did not directly address whether Birk had the believed in "good faith" that his actions were justified. The Board report notes the reasons Officer Birk stated he stopped Williams: to confront suspicious circumstances, and to determine if there was a crime or threat to the public. Acting suspicious is not a felony. Nor is carrying a knife. In fact, Officer Birk has never claimed that he thought Williams had or was committing a felony when he decided to stop him.
The Board report further notes that “The representations of Officer Birk about his view of the threat posed by John T. Williams have been inconsistent.” The Board further found that “Officer Birk’s actions – rather than his testimony alone – are contradictory.” Testimony that is inconsistent and actions that are contradictory certainly can support a finding of lack of good faith. These findings would support the conclusion that Birk, in confronting Williams with his handgun out. was not acting in a good faith belief that he was confronting a situation where a felony was being committed.
Satterberg, who is a very smart and capable attorney, addressed this issue in the lengthy analysis that he released in support of his decision. It was the only weak point in his analysis. He stated that since threatening a police officer with a knife is a felony, Officer Birk had reason to believe in good faith that he was being threatened. But that seems to be putting the proverbial cart before the horse. If that were the case, the Legislature could have simply provided that a police officer cannot be held criminally liable if without malice and in good faith uses a deadly weapon to defend himself when he feels threatened.
But that isn't what state law says. Instead, it provides that one of the circumstances relevant to determining whether deadly force is justified in attempting to stop a person committing a crime is whether the person threatens the police office with a weapon. The statute itself supports the idea that the threat against the officer must be separate from the felony at issue.
This is not to say the decision not to charge Officer Birk was wrong. The prosecuting attorney has to exercise discretion in making charging decisions. Successfully prosecuting Birk would have been very difficult and, given the lack of historical success in prosecuting on-duty officers on criminal charges, may have been too high a hurdle to justify proceeding. But Satterberg's suggestion that he had no choice under the law is not supportable in light of the Review Board findings.
King County Prosecuting Attorney Dan Satterberg announced yesterday that the county will not seek criminal charges against Seattle Police Department officer Ian Birk in the shooting death of Native American woodcarver John T. Williams.
Based on the Birk inquest findings, any person other than an on-duty police officer almost certainly would have been charged with manslaughter. But the state legislature has decided to treat police and other safety officers differently than you and me. Specifically, state law provides that “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.” Police officers, in other words, get special treatment by the law.
Satterberg explained yesterday that Officer Birk acted without malice and in good faith, and therefore could not be charged under state law. But there is reason to question that conclusion. And what may be the key question did not come up at Birk’s inquest.
The purpose of an inquest is to determine facts that can be used by the prosecutor to decide whether to charge a person with a crime. Two key questions in the Birk inquest informed Satterberg’s decision. First, "Did Officer Birk believe that John T. Williams posed an imminent threat of serious physical harm to Officer Birk at the time Officer Birk fired his weapon?" The jury split 4-4 on that question. Second, "Based on the information available at the time Officer Birk fired his weapon, did John T. Williams then pose an imminent threat of serious physical harm to Officer Birk?" One answered yes, four answered no, and three answered unknown.
These findings suggest that Birk objectively did not have a reason to shoot Williams although subjectively he thought he did. That would be enough to charge a civilian with manslaughter either in the first degree (recklessly causing a person's death) or second degree (causing a person's death with criminal negligence).
The inquest findings justified Satterberg’s conclusion that Birk acted without malice and in good faith. But the statute requires more than just that. The statute also requires that an officer’s use of deadly force was “with a good faith belief that such act is justifiable.” In other words, the officer must in good faith believe he was in a situation that justified the use of deadly force. State law says police are justified in using deadly force when they believe person they apprehend "has committed, has attempted to commit, is committing, or is attempting to commit a felony.” The inquest board was not asked whether that condition applied in Birk's case.
However, the city's Firearms Review Board, an internal police investigative group, found that Birk's use of deadly force was not justified under those criteria. They did not directly address whether Birk had the believed in "good faith" that his actions were justified. The Board report notes the reasons Officer Birk stated he stopped Williams: to confront suspicious circumstances, and to determine if there was a crime or threat to the public. Acting suspicious is not a felony. Nor is carrying a knife. In fact, Officer Birk has never claimed that he thought Williams had or was committing a felony when he decided to stop him.
The Board report further notes that “The representations of Officer Birk about his view of the threat posed by John T. Williams have been inconsistent.” The Board further found that “Officer Birk’s actions – rather than his testimony alone – are contradictory.” Testimony that is inconsistent and actions that are contradictory certainly can support a finding of lack of good faith. These findings would support the conclusion that Birk, in confronting Williams with his handgun out. was not acting in a good faith belief that he was confronting a situation where a felony was being committed.
Satterberg, who is a very smart and capable attorney, addressed this issue in the lengthy analysis that he released in support of his decision. It was the only weak point in his analysis. He stated that since threatening a police officer with a knife is a felony, Officer Birk had reason to believe in good faith that he was being threatened. But that seems to be putting the proverbial cart before the horse. If that were the case, the Legislature could have simply provided that a police officer cannot be held criminally liable if without malice and in good faith uses a deadly weapon to defend himself when he feels threatened.
But that isn't what state law says. Instead, it provides that one of the circumstances relevant to determining whether deadly force is justified in attempting to stop a person committing a crime is whether the person threatens the police office with a weapon. The statute itself supports the idea that the threat against the officer must be separate from the felony at issue.
This is not to say the decision not to charge Officer Birk was wrong. The prosecuting attorney has to exercise discretion in making charging decisions. Successfully prosecuting Birk would have been very difficult and, given the lack of historical success in prosecuting on-duty officers on criminal charges, may have been too high a hurdle to justify proceeding. But Satterberg's suggestion that he had no choice under the law is not supportable in light of the Review Board findings.
