It was presented as an open-and-shut case. Seattle police officer Ian Birk couldn't be prosecuted for murder because the law wouldn't allow it, explained King County prosecuting attorney Dan Satterberg to a roomful of poodle-headed TV news reporters and their unwashed newspaper counterparts on February 16. His reasoning: Prosecutors would have to prove that the officer killed with malice—with evil intent. "Washington law gives police officers more protection against criminal prosecution for homicide than it gives ordinary citizens," Satterberg said.
That night, headlines like one from Northwest Cable News blared that the prosecutor's hands were "tied by state law"—with no counterpoint.
In other words, the legal bar is set too high in Washington to find Birk guilty of shooting John T. Williams—even though the 50-year-old woodcarver wasn't breaking any laws when Birk stopped him last August 30. He had a legal carving knife in one hand, he was hearing impaired, and 10 seconds later he was dead. Protests erupted inside City Hall and on city streets following Satterberg's decision not to press murder charges against Birk, full of people carrying signs like "Give Birk the Chair." Word has it protesters are planning a sit-in at Satterberg's office. They hold out hope that Satterberg will reverse his decision and prosecute Birk.
Some lawyers agree with the protesters. They say Birk could, and should, be charged with murder. They argue that Satterberg is reading the law wrong.
"Officer Birk could have been prosecuted under the current law," says Lisa Daugaard, a King County public defender. "I respectfully disagree with [Satterberg's] reading of the statute."
At issue is a 25-year-old law that outlines when an officer may use deadly force: Deadly force is allowable if an officer has reason to believe a suspect has committed or is attempting to commit a felony, has probable cause that the suspect is a personal or public threat, and believes that force is necessary. But Washington State's deadly force law is one of the broadest in the country and includes this sentence: "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."
According to Satterberg's office, in order to press criminal charges, prosecutors would have to make a case that Birk acted out of malice—an incredibly high bar. "Malice is a very well-defined, well-used term in criminal law—it means evil intent," explains Ian Goodhew, a prosecutor and spokesman in Satterberg's office. "Unless we can show an evil intent, he's not criminally liable."
Another hurdle for prosecutors: disproving Birk's "good faith belief" that he had a reason to use deadly force. While malice is well defined, Goodhew says that a "good faith belief" is nebulous and difficult to disprove (an officer can have a good faith belief that causes him to fire his weapon but still be wrong). In his 12-page written decision not to charge Birk with murder, Satterberg highlights recent findings from a public inquest jury to prove his point about the difficulty of proving malice and a lack of good faith. In the end, four jurors believed Birk when he said he thought his personal safety was threatened at the time he fired his weapon, and four didn't. When asked whether or not Williams posed an imminent threat to Birk, one juror answered yes, four answered no, and three answered unknown. Satterberg uses the jurors' conflicting answers to justify his decision not to press criminal charges. In a criminal trial, a 12-member jury would be instructed to return a not-guilty verdict if jurors had a reasonable doubt about whether the officer's actions might be justified.
But Daugaard, the public defender, says that Satterberg is reading the law wrong: "The statute doesn't talk about a 'good faith belief' in general. It talks about good faith that the action—the use of force—was justified under the statute."
In other words, believing you're doing the right thing isn't enough if you're an armed cop. You still have to be following the law, and the law says force is justifiable when an officer reasonably believes the person they're apprehending "has attempted to commit, is committing, or is attempting to commit a felony."
Birk never claimed that Williams was committing a felony. Birk contacted Williams because he saw Williams crossing a busy street while holding a knife and that struck him as "suspicious." But walking down the street with a woodcarving knife isn't a felony. Neither is acting suspicious.
Satterberg ties in the felony requirement by arguing that Birk believed he was going to be attacked by Williams, and attacking an officer with a knife is a felony. But Birk's peers and commanders at the Seattle Police Department (SPD) refute this argument. After a lengthy internal investigation, a seven- member board unanimously concluded that Williams wasn't an immediate threat to Birk—that Williams's actions did not justify a use of deadly force, said Deputy Chief Clark Kimerer, who headed an internal Firearms Review Board investigation. "Williams had not even moved into a position where he could've gone into a straight line, a position of attack," Kimerer said. Their report condemns Birk's flagrant disregard for training protocol and found that "it would have been a reasonable alternative to allow the suspect to escape without resorting to the use of a firearm."
Did you catch that? Force wasn't necessary, according to law enforcement officials.
"These are among the most egregious failings that I've seen," said Kimerer. "What we were seeing was an outcome that could've been avoided."
And yet Birk won't face murder charges. He also won't face disciplinary action from SPD—he resigned hours after the review board's report condemning his actions was released.
No on-duty officer has been criminally charged for firing his weapon in King County since the justifiable force law was adopted. As Satterberg's office interprets the law, a prosecuting attorney would essentially need a confession acknowledging malice in order to press charges against an officer.
"Basically, as the law is written, if you're an on-duty officer and the shooting's not intentional, and you're not reckless, then you're not guilty of either murder or manslaughter," explained Goodhew.
If this is true, the public inquest process is meaningless. The opportunity to press criminal charges is a joke. And the state's ability to discipline police officers is rendered impotent.
The public sees this and resents it. Officers like Birk and Shandy Cobane, the officer caught on video last spring who threatened to "beat the fucking Mexican piss" out of a suspect and then stomped on that suspect's head—a suspect who turned out to be innocent—are let off the hook for their egregious actions.
Satterberg also declined to pursue criminal charges against Cobane under the state's hate crime and malicious harassment laws. (City Attorney Pete Holmes also declined to press misdemeanor charges against Cobane.) Neither through the SPD internal process nor through the courts do civilians get the satisfaction that the discipline these officers face is on par with their actions.
The way laws are written, if you're an officer, you can do virtually anything—no matter how egregious, so long as no one can prove you did it maliciously—and escape all criminal charges.
"I don't think the statute is unclear—but it's clear we have a problem," says Daugaard. "Prosecutors who are dedicated and open-minded feel that this law precludes charging Birk. Whatever the legislators' intent, what we ended up with is a situation where officers have actual immunity from criminal liability for causing death. And that's not viable."
It's time for the law to be rewritten.