King County prosecutors determined they couldn’t prove the officers acted with malice, a controversial requirement that led to a change in state law this year but that is tied up in a legal challenge.
The King County Prosecuting Attorney’s Office has decided not to file criminal-assault charges against the two recently fired Seattle police officers who unleashed a barrage of gunshots at a fleeing car in an Eastlake neighborhood alley last year, wounding the driver and a passenger.
Under state law that existed at the time of the Oct. 8 incident, prosecutors would be unable to prove the former officers, Kenneth Martin and Tabitha Sexton, acted with malice or a lack of good faith, the prosecutor’s office determined.
There is “no evidence that either officer had particular or general anger or animus toward any of the three people in the car,” according to a so-called decline memorandum prepared by Deputy Prosecutor Ian Ith, which explains why charges weren’t brought against the officers. The third person in the car was not believed to have been injured.
The malice language, requiring prosecutors to show evil intent, makes it nearly impossible to charge a law-enforcement officer believed to have wrongfully killed or injured someone in the line of duty. The malice requirement has been the subject of intense scrutiny in recent years, generating efforts to overturn it.
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State lawmakers passed a compromise measure in March to make it easier to prosecute officers for negligent shootings and improve police training in de-escalation tactics. It removed the word “malice” and set a new “good faith” definition.
Lawmakers approved Initiative 940, drafted by citizen sponsors. But in an unprecedented move, they first passed a separate bill amending the initiative that was a compromise between activists and police groups.
A Thurston County Superior Court judge found that procedure was unconstitutional and ordered that the original I-940 be placed on the November ballot.
The state Attorney General’s Office appealed and the state Supreme Court heard arguments in June. The court has yet to issue a decision.
If the initiative goes on the ballot, the Eastlake incident, captured on patrol-car and body-camera video, could become entwined in the debate.
Martin and Sexton were fired last month for violating department policies regarding use of force; use of deadly force against a fleeing person; firing weapons at a moving vehicle; and abuse of discretion.
In addition, Martin failed to employ tactics to de-escalate the situation and, instead, made it worse when he ran, with his AR-15 rifle, toward the stolen car and tried to block it, according to a disciplinary action report.
As the car turned out of a parking space, Sexton fired at the driver’s side door and window and Martin shot toward the driver, according to the prosecutor’s memorandum.
Both continued to fire as the car made the sharp turn, and the car crashed into a concrete wall, the memo says.
The two officers briefly ceased fire and the car rolled backward a short distance, its brake lights illuminated but not the backup lights, according to the memo.
Martin and Sexton reopened fire and the car sped off, the memo says.
All 27 shots fired by the officers hit the car.
The driver and his mother were arrested five days later, after the car was found abandoned with their fingerprints on the exterior. The driver had bullet fragments in his spine, causing a fracture, and in his back. His mother had bullet fragments in her back and the back of her leg.
The prosecutor’s memorandum analyzed the case for criminal liability, not under Police Department policies.
It doesn’t reach a conclusion on whether prosecutors could prove beyond a reasonable doubt — the standard for a conviction — that Martin and Sexton didn’t have reasonable beliefs that the car’s occupants posed a threat of serious harm to them or others.
Calling that “only half of the equation” and assuming — without deciding — whether prosecutors could prove that, they would still have to prove the officers fired with “evil intent,” the memo says.
Moreover, the anticipated testimony of the officers and other officers at the scene “would work strongly in the officers’ favor to show that, in the heat of the moment, they bore a good-faith belief that the vehicle posed an immediate risk to the officers and the public,” the memo concluded.