A highly publicized incident in which a child was doused with police pepper spray outside Westlake Plaza during the early days of the Black Lives Matter protests was not a violation of Seattle Police Department (SPD) policy or an excessive use of force, according to the results of an internal investigation released Friday.

However, another widely publicized incident involving an officer captured on video placing his knee on a man’s neck — a particularly stark image in light of the killing just days earlier of George Floyd in Minneapolis — was determined to be in violation of the SPD’s use-of-force policies. The officer was also cited for unprofessional conduct.

These were among the first five completed investigations released by the Police Department’s civilian-run Office of Police Accountability, which has fielded more than 19,000 complaints in the months since widespread protests, mostly nonviolent, erupted in the aftermath of Floyd’s May 25 death.

OPA Director Andrew Myerberg said he’s prepared to shoulder any fallout from his decision on the incident involving the child, a 7-year-old boy who was with his father protesting downtown on May 30. But he concluded that the evidence — including body-camera video from several officers and civilians — showed that the officer’s spraying of the boy was inadvertent.

Andrew Myerberg, director of the Office of Police Accountability, in his office. OPA is investigating 18,000 complaints of excessive use of force stemming from recent protests for racial justice in Seattle. The OPA is releasing the first batch of reports and conclusions, including a review of an incident in which a child was pepper-sprayed.  (Amanda Snyder / The Seattle Times)
Andrew Myerberg, director of the Office of Police Accountability, in his office. OPA is investigating 18,000 complaints of excessive use of force stemming from recent protests for racial justice in Seattle. The OPA is releasing the first batch of reports and conclusions, including a review of an incident in which a child was pepper-sprayed. (Amanda Snyder / The Seattle Times)

“I understand that this decision will be unpalatable to a lot of people. I accept that,” Myerberg said. “In some respects, it is unpalatable to me as well.”

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“I really struggled with this one,” he said. “Because there is a victim here: the child. It’s heartbreaking to watch it.”

The officer involved, a sergeant, had rushed to reinforce riot-armor-clad officers stretched across Third Avenue after police had pulled a man behind the police lines to arrest him for an earlier incident, said Myerberg. The crowd, while mostly nonviolent, jostled the officers, and a masked woman in a white T-shirt and bike helmet is seen grabbing the baton of an officer and shoving.

That’s when the sergeant — who had a blast ball in one hand and a canister of pepper spray in the other — unleashed a stream of the blue-dyed irritant at the woman. The child and his father were right behind the woman in the T-shirt when that occurred, and Myerberg concluded that it was unlikely the sergeant could see the child, who was dwarfed by the jostling adults around him. The boy got a dose of the powerful irritant as the woman ducked and scrambled away.

The boy and his father can be seen in some of the video standing off to one side and behind the woman in the white T-shirt and the police line. The father is seen yelling at officers along with others in the crowd. May 30 was the first large demonstration in downtown Seattle following the killing of Floyd, and it drew thousands downtown despite a drizzling rain. The incident involving the boy occurred at Third Avenue and Westlake Center.

The entire incident, he said, from the moment of the arrest at one end of the police line to when the sergeant deployed the pepper spray, was about 25 seconds.

Myerberg said he reviewed body-camera video from at least five officers, as well as other video posted on social media, and interviewed the officers.

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David Owen, a Seattle civil-rights attorney representing the child and his father, Mando Avery, said the family is “deeply disappointed, but not surprised, by the result reached by the OPA.”

“Today, they have confirmed that it is the Seattle Police Department’s position that the use of pepper spray in an intentional and reckless manner that it would strike an innocent child exercising their First Amendment rights is ‘within policy’,” he said. “We understand the OPA has said it is ‘sorry’ for these actions. But ‘sorry’ and ‘regret’ is not sufficient. We demand change.”

He pointed out that no officer stepped forward to help the child as he screamed in pain and bystanders rushed to his aid, and said OPA’s refusal to identify the officers involved “undermined the claims of objectivity and transparency that the City purports to value.”

In his conclusions to the investigation, Myerberg wrote that OPA is “required to make decisions based on applicable policy and training … not just reach a finding that may be the most politically expedient or that which we think will be most acceptable to demonstrators, officers, or some other group.”

“In our current environment, where nuance is rare, facts do not always seem to matter, and people often make up their minds before having complete information, this is a difficult place to be. But this is where OPA will always find itself — trying to make sense out of split-second decisions in incredibly complex and human situations,” he wrote.

The incident involving the officer kneeling on a man’s neck occurred later that night at a downtown T-Mobile store that was being looted. Video shot by photojournalist Matt McKnight shows several people running from the store when bicycle officers arrive and start making arrests.

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The video shows two officers holding a man lying on his stomach, his arms pulled behind his back as the officers attempt to handcuff him. At one point, one of the officers places his knee across the back of the man’s neck. The reaction from bystanders is almost instantaneous.

“Get your knee off his neck!” someone shouts. Others add profanity. After about 13 seconds, the other officer grabs the knee and moves it with some force.

Myerberg concluded that, while the officer didn’t intend to restrict the man’s breathing — a violation of SPD’s ban on the use of neck restraints — he did use unnecessary force and risked unnecessary injury to the suspect by placing his knee in that position.

He said his recommendation in this case has been sent to Interim Police Chief Adrian Diaz for his consideration.

OPA received roughly 19,000 complaints during those first days and weeks of protests, nearly 13,000 of them about the incident with the boy and the pepper spray. Mark Grba, the OPA’s civilian deputy director of investigations, said people called from all over the country and the world after seeing a widely circulated video clip in which the screaming child is held as someone pours milk over his stinging eyes and face.

Grba said the incident distributed on social media showing an officer placing his knee on a suspect’s neck also generated hundreds of complaints.

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In all, he said there are 118 ongoing OPA investigations into allegations of misconduct by Seattle police stemming from the protests, including “large, and complex” investigations into the widespread use of less-lethal weapons during protesters’ occupation of the area around the East Precinct in early June. Myerberg said the first of those cases will be released in the next few weeks.

Grba said some of the complaints are anonymous and will be almost impossible to investigate because there isn’t enough information. In some others, the complainants made a report but don’t want to cooperate with the investigation, he said.

The others, he said, are linked by date, time and approximate location, and investigators are left to review hundreds of hours of body-camera video, GPS data, use of force reports and witness and officer statements to determine what happened. “It’s a monumental effort,” he said.

The findings were met with skepticism by others who have filed complaints. Aisling Cooney, a protester who has been outspoken about what she calls a “hostile and retraumatizing” OPA process, believes the lack of discipline in the child pepper-spray incident could erode faith in an accountability process of which protesters are already skeptical.

“The fact that they can’t sustain a complaint when a child gets sprayed—what’s going to happen for the rest of us?” Cooney said.

During a protest in early June, an officer pepper-sprayed Cooney at close range, sending her to the emergency room where a doctor told her she had a severe allergic reaction to the spray, Cooney said in a sworn declaration. In another complaint Cooney filed to OPA, she alleges officers dragged her and hit her with a baton as they arrested her at a protest on July 25.

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Three other, less publicized cases also were determined. In one, an officer agreed to discipline for being unprofessional after he was recorded stating, “I have a hard-on for this (expletive) and, if they cross the line, I will hit them.”

“Prior to this complaint being filed, (the officer) self-disclosed to his supervisor and explained that he was quoting a movie,” the misconduct report states. “(The officer) also conveyed that he recognized that his statements could have been perceived as unprofessional by demonstrators.”

OPA found evidence was inconclusive in another case in which a woman claimed an SPD officer had pushed an elderly man to the ground near Fifth Avenue and Olive Street the afternoon of May 30. Myerberg said no video or report matching the alleged incident could be found.

In the final case, a couple complained they were shoved and pushed by officers, and one said he was “treated aggressively because of his sexual orientation.” OPA determined the force was lawful, and that there was no evidence of biased policing.

Staff reporter Heidi Groover contributed to this report.