Seattle Police Chief John Diaz and a department review board have preliminarily found that an officer's fatal shooting of a woodcarver on Aug. 30 was not justified, according to sources familiar with the case.

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Seattle Police Chief John Diaz and the department’s Firearms Review Board have reached a preliminary finding that an officer’s fatal shooting of woodcarver John T. Williams on Aug. 30 was not justified, according to sources familiar with the case.

Diaz and the board will make a final determination after the completion of a pending court inquest into the shooting. It is rare for a shooting by an officer to be found unjustified.

After the preliminary finding was reached last week, the officer, Ian Birk, was ordered by Deputy Chief Clark Kimerer, who oversees the review board, to surrender his gun and badge, according to the sources. Birk, 27, who joined the department in July 2008, remains on routine paid leave.

Birk fatally shot Williams, 50, in the late afternoon of Aug. 30 at the intersection of Boren Avenue and Howell Street, near downtown. Critics have questioned whether Birk acted too hastily in shooting Williams, a chronic inebriate.

The department considers the preliminary finding a confidential determination. It will not be disclosed to the six-member inquest jury, which will be asked to independently answer questions relating to the justification for the shooting. A date for the fact-finding proceeding, to be held in King County District Court, has not been announced.

The inquest jury’s findings can help guide the King County Prosecutor’s Office in determining whether criminal charges are warranted.

The Prosecutor’s Office is also informed of the Police Department’s Firearms Review Board’s findings, and may take them into consideration in weighing criminal charges. But the department’s review is considered a separate administrative proceeding that can be used to determine if an officer violated department policy and whether additional training is needed.

Sgt. Sean Whitcomb, the department’s chief spokesman, said department officials would not comment on the preliminary finding because of the pending inquest.

Sgt. Rich O’Neill, president of the Seattle Police Officers’ Guild, declined to comment, saying through a spokeswoman that he doesn’t discuss pending investigations. O’Neill sat as an observer during the review board’s examination on Oct. 4 but didn’t participate in its deliberations or finding.

The review board submitted a recommendation to Diaz to preliminarily find the shooting to be unjustified and Diaz concurred, the sources say. After the inquest, the review board and Diaz can modify the finding based on any new information.

The review board heard testimony from Birk, at least two civilian witnesses and reviewed other witness statements. The board also heard presentations by homicide detectives, crime-scene investigators and training officials in the department.

In addition to Kimerer, the other members of the board who heard the evidence were Capt. Richard Belshay, the former commander of the department’s training section; Capt. James Dermody, the commander of the East Precinct; and Lt. Scott Bachler of the training section. A civilian observer, Seattle attorney Rebecca Roe, also sat in on the review but didn’t participate in the deliberations or the board’s recommendation.

Historically, the vast majority of police shootings have been found to be justified by the Firearms Review Board, which convenes whenever an officer discharges a weapon.

Rulings in which the board finds a discharge to be unjustified generally stem from nonlethal incidents. No officer has been charged with a crime over use of force since the early 1970s, according to O’Neill, the guild president.

The department’s remedy for an unjustified shooting can range from internal discipline to additional training.

In 2006, for example, an officer was suspended for five days for violating a department rule on shooting at a moving vehicle. But the penalty was to be not imposed if the officer avoided similar misconduct for three years.

Birk shot Williams after he stopped his patrol car at a red light and saw Williams carrying a piece of wood and a small knife that turned out to be used for carving.

Williams, who was a member of Nuu-Chah-Nulth First Nations in British Columbia, did not respond to three commands to drop the knife, according to police officials and an audio recording retrieved from Birk’s patrol car. The department originally said Williams advanced on Birk but later retreated on that statement.

According to two people familiar with the shooting, who asked not to be identified, there was a time span of less than 15 seconds between the time Birk issued his commands and when he fired his gun. Seattle police have previously said that Birk fired four rounds from a distance of nine to 10 feet.

Williams was struck by four bullets on the right side of his body, indicating he was not facing the officer at the time the shots were fired, the attorney representing the Williams family has said.

The attorney, Tim Ford, questioned whether the officer needed to shoot if Williams wasn’t directly facing him. “… Where is the threat?” he said last week.

Williams collapsed on the sidewalk along Howell Street, where he was pronounced dead.

The autopsy report also noted that a pair of headphones attached to an AM-FM radio were found with Williams’ body, Ford said last week. The report didn’t specify where the headphones were retrieved, Ford said.

Williams’ family has said he probably didn’t hear the officer command him to drop the knife because he was deaf in one ear and wearing headphones.

Ford said in a written statement Thursday that if Diaz and the review board found the shooting unjustified in their preliminary finding, “it’s a step in the right direction, but only a step.”

He said he was still waiting for the city to respond to his request, made a month ago, for all the evidence.

“We need to take an independent look at the evidence to assure John’s family all leads have been followed up, and we need to see the evidence the police are still holding in order to do that,” Ford said.

The shooting led to public protests and scrutiny, including questions on why Birk didn’t call for backup, or use his patrol car as cover rather than confront Williams in the open, and why he wasn’t equipped with a Taser. It also prompted the Police Department to make major changes aimed at bolstering training and improving community relations. The department also said it would equip more officers with Tasers.

The inquest will be overseen by King County District Court Judge Arthur Chapman, who was assigned on Tuesday by the court’s presiding judge, Barbara Linde. The inquest is to be heard within 90 days of Chapman’s designation, but he can extend the time.

Senior Deputy Prosecutor Mindy Young will conduct the inquest. Attorneys for Birk and the Williams family are allowed to participate.

Seattle Times staff reporters Emily Heffter and Justin Mayo contributed to this report, which includes information from The Seattle Times archives.

Steve Miletich: 206-464-3302 or