Seattle city attorneys have released patrol-car video of a 2010 incident that led to a criminal investigation into an officer’s use of force after the footage came to the attention of Police Chief Kathleen O’Toole.
Seattle city attorneys Tuesday released patrol-car video of a 2010 incident that prompted a criminal investigation into a veteran officer’s use of force after the footage came to the attention of Police Chief Kathleen O’Toole this year.
The video was made public a day after the King County Prosecutor’s Office announced it was closing its review with a determination that it lacked evidence to bring a felony assault charge.
Federal prosecutors also have reviewed the case but decided there is insufficient evidence to file a criminal civil-rights charge.
No misdemeanor charge can be brought against the officer because of a two-year statute of limitations.
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Seattle police and the FBI opened a joint investigation in May into the conduct of Officer David Bauer, who was placed on paid leave at the time. The results were forwarded to King County and federal prosecutors.
Bauer, 54, who joined the department in 1986, will remain on leave while the case is reviewed by the Police Department’s Office of Professional Accountability (OPA), which handles internal investigations that can lead to discipline.
Detective Ron Smith, president of the Seattle Police Officers’ Guild, said in a statement Tuesday that the use of force was reviewed and approved up the chain of command to an assistant chief in 2010. Smith noted the Guild’s contract with the city states no discipline can result from a misconduct complaint made more than three years after the incident.
OPA Director Pierce Murphy said Tuesday he was aware of contractual limitations but added there are exceptions.
Bauer was one of three officers who responded to a call on Nov. 4, 2010, outside a South Seattle bank, where police used force during a confrontation with four people working as an after-hours cleaning crew.
In the video, Bauer can be seen delivering more than a dozen punches to the face of one man in what county prosecutors found to be an effort to gain his compliance. Bauer stopped when the man complied with demands, according to the prosecutors.
Bauer subsequently appeared to kick another person behind a parked car, but the act is obscured on the video and the person could not be found to obtain a statement, the prosecutors said in a memo outlining their review.
City attorneys alerted O’Toole to the video as they were preparing to release it as part of a bulk request for videos by KOMO-TV. The request resulted in a state Supreme Court ruling last year that the videos must be released, but the footage of the bank incident was withheld pending the criminal investigation.
A lawsuit stemming from the incident was filed in October 2013 by Eulogia Morales Cayetano and settled by the city for $25,000.
The lawsuit stated that she, her husband, Rufino Ocampo Estrada, their son and the couple’s nephew were cleaning Viking Bank at 5701 First Ave. S. under a contract. All four are Hispanic and natives of Mexico, the suit said.
Police responded to a 911 call from a bartender at a nearby bar who reported that two intoxicated men had been thrown out and were outside making threatening gestures, according to the county prosecutor’s memo outlining the case.
Bauer and two other officers found two men matching the bartender’s description sitting in the parked car in the bank parking lot. Two more people — including Morales Cayetano — exited the bank.
All four were arrested and suffered injuries during the incident, including the son, who received three stitches for an injury to his upper lip, apparently caused by another officer, according to the memo.
Detectives recently located the son in Mexico, where he said he was injured when his face hit the pavement while he was resisting arrest, the memo said.
Bauer’s multiple punches were delivered to Ocampo Estrada, the driver in the parked car, according to the memo.
Events that occurred behind the car are “difficult to discern” in the video, the memo said.
“At one point Officer Bauer appears to kick one of the three suspects who is behind the car,” the memo said. “The video shows a kicking motion, but the result of that motion is unclear because it is out of view of the camera.”
The person believed to have been kicked cannot be found and is likely living outside the country, according to the memo. As a result, investigators have no statement from that person.
Federal attorneys, in a letter to O’Toole disclosing their decision, said that while evidence doesn’t meet the “high standard” for a civil-rights charge, their conclusion “does not in any way condone the conduct that was the subject of our investigation.”
At the time of the incident, Ocampo Estrada was charged with first-degree criminal trespass and misdemeanor assault against Bauer and another officer before prosecutors viewed the video. He entered into a 12-month dispositional continuance on the assault charge against Bauer, and the other two counts were dismissed. The remaining count was dismissed Jan. 20, 2012, when he complied with conditions.
Morales Cayetano was charged with misdemeanor assault against Bauer and with obstructing a public officer, but the charges were dismissed at the request of city prosecutors.
The son was charged with misdemeanor assault against Bauer and another officer and with obstructing a public officer, but those charges were also dismissed at the request of prosecutors. He was then deported, according to court papers in the lawsuit.
The nephew was never charged.
The incident occurred before Seattle police adopted sweeping reforms to curb excessive force and track use of force under a 2012 consent decree with the U.S. Justice Department.
Information in this article, originally published Nov. 24, 2015, was corrected Nov. 24, 2015. A previous version of this story incorrectly referred to events occurring behind a patrol car rather than a parked car.