Cops, “victims,” “criminals” and missed opportunities

A case of beer. Around midnight on May 21, 2015, two men carrying skateboards attempted to steal a case of beer from the Safeway at Cooper Point Road in Olympia. Confronted by a clerk, they threw the case toward her and ran out of the store. Two Olympia police officers dispatched to respond to the 911 call interviewed the clerk about the confrontation. They said they’d return in the morning to get the surveillance video showing the two culprits and “cleared the call.”

In the meantime, another officer, Ryan Donald, assigned to patrol downtown, decided to drive to the Westside and look for the would-be thieves. Traveling down Cooper Point Road, he spotted two men matching the description on the police radio. He stopped, exited his vehicle and ordered the two men to sit on the ground in front of the car.

What took place over the next three minutes changed some lives forever and set in motion a process whose outcome seems all too inevitable.

Now, two years later, a jury has convicted both men, Andre Thompson (25 ) and Bryson Chaplin (22) of 3rd degree felony assault, punishable by up to 5 years in prison. The men await sentencing. Officer Donald, who shot the two men, spent time on paid leave but is now back with the Olympia Police Department (OPD). Andre Thompson recovered from his wounds but Bryson Chaplin is partially paralyzed and in a wheelchair. The County Prosecutor found Donald’s use of deadly force justified. The OPD’s Internal Review Board found that their officer had adhered to policy and procedure. They also determined that none of his actions had precipitated the course of events that led to the use of force.1

The 3 minutes. The only contemporaneous account of what happened during those three minutes comes from the police radio and Officer Donald.2 At 1:15 a.m. Donald ordered the men to sit down as they passed his car. They didn’t sit, but waved a skateboard toward the car, prompting Donald to pull his gun. When they simply continued walking faster, Donald holstered his gun and decided to head them off at the rear of the patrol car. There, according to Donald, one man (Thompson) grabbed him and the other raised his skateboard over his head as if to strike him. Donald pulled his weapon and fired several shots at Chaplin (the man with the skateboard). Both men turned and ran. Donald calls in “shots fired!” and says the men are running north. It’s just 1:16. Donald catches his breath and takes off running to the spot where he lost sight of the men. A half-minute later, he sees one of the men hiding in the bushes beside the road and radios “I got one at gun-point” and then, his voice rising “I got both of them, I need assistance!” Seven seconds later: “Shots fired, one down!” 30 seconds later, he shoots the second man. Officer Donald fired at three separate points, 11 shots in all. Most of the shots went into the two men; some through the window of a nearby house and some into the ground. At 1:18 and 23 seconds, Officer Donald is standing in the road. Both men lie on the ground, wounded but alive.

Justified use of force and perception of a “deadly threat.” The decisive action in this series occurred when Officer Donald decided to approach the two men – even though he thought they had assaulted someone at the Safeway; and he saw them as “taller, heavier and bigger” than him; as acting in a threatening manner that had already spurred him to draw his gun. At this point, however, the men had not committed a felony, nor was there cause to believe that the men, if not apprehended, would pose a threat to anyone. As Donald stated, the men were walking quickly away.

Under these circumstances, why did Donald decide to engage the two men on his own? He was alone, confronting two big men whose every gesture he saw as threatening. He’d already felt it necessary to have his gun in the ready position.

Had he waited for back-up, which appears a tactically sensible choice, a tragedy could have been avoided. The original 911 call had been cleared. Two men walking north on Cooper Point wouldn’t get far. As Donald’s attorney remarked later “the worst thing that could happen …is a ticket for some misdemeanor or get taken downtown.”3 Except for the encounter with Officer Donald.

Actions that precipitate events. Instead of waiting, Donald moved to approach the men in a defensive stance “in case I [was] assaulted,” “watching for a furtive movement.” One man (Thompson) turned toward Donald in a way that made Donald think he was going to be assaulted, so when the man appeared to reach for his shirt sleeve, Donald tried unsuccessfully to grab hold of him. The other man (Chaplin) raised his skateboard over his head “in a fast aggressive motion with both hands.” Here is the moment that justified deadly force: fearing serious injury or death, Donald pulled his gun and shot. Somehow, Chaplin was able to stop the “fast aggressive motion” of the skateboard in mid-swing , and both men again ran away. Officer Donald was not hurt.

Did this indicate an intent to harm Officer Donald­—or to avoid him? Why not follow through with the skateboard if the intent was harm? (It so happens that the earlier surveillance video at Safeway shows Chapin entering, swinging his skateboard wide and freely about in the empty foyer —foolish rather than aggressive. The Prosecuting Attorney cited this as an aggressive act that corroborated Donald’s interpretation of Chapin’s deadly intent. It could more easily be seen as a random behavior.)

A misdemeanor becomes a felony. Under Washington law, use of deadly force is justified when necessarily used by an officer to apprehend someone who has committed or is about to commit a felony. In deciding to use deadly force, the officer must have probable cause to believe that the suspect if not apprehended poses a threat of serious harm to the officer or others. In other words, the justification for the use of deadly force arising from the 911 call comes solely from the interaction between the officer and his suspects—it could not be justified in relation to the shoplifting incident. This reinforces a question about Officer Donald’s judgment—why put yourself in a position you have determined is dangerous, when it is not necessary and could actually lead to further danger? In fact, Officer Donald has a note in his file raising concerns about an incident in 2013: “Officer Donald did not wait for backup and placed himself in a position where the use of force was inevitable…”

Now, instead of a misdemeanor, Officer Donald has probable cause for third-degree assault “based on my contact with them.”4 Third-degree assault is a felony and Officer Donald thought about calling for a canine unit to help search for the men. About 10 seconds after the first “shots fired” Officer Donald ran after the men. Standing at the side of the road, he saw one of the men (Chaplin) who was crouched in the bushes stand up and come at him with the skateboard. Donald “had no doubt he was gonna try and hit me in the head with the skateboard,” whereupon he shot him. He reloaded and saw the second man (Thompson) coming toward him and “target glancing at my firearm” which Donald perceived to mean that the man “was going to disarm me and…possibly cause me serious injury or death,” so he shot him as well.

The trial. The Thurston County Prosecutor, following the recommendation of the OPD, charged Thompson and Chaplin with two counts each of 2nd degree felony assault, punishable by up to 10 years in prison. Neither man spoke at the trial, nor earlier. Officer Donald was the principal witness for the prosecution­—confirming in direct testimony details from a 10-page second-by-second specific narrative that he worked on over 5 days prior to an official interview. On cross-examination, Donald’s memory proved less certain, and the reliability of some details was cast into doubt. Possibly recognizing this, the prosecutor told the jury that if they couldn’t convict on 2nd degree assault, they should go for 3rd (which has a sentence of up to 5 years). The jury decided on 3rd degree assault.

Other countries, other possibilities. It is well-known that the US far exceeds any other western country in the number of people killed annually by police. In 2015, police killed 989 people and injured many more. This contrasts with England (55 fatal killings since 1995); Canada with 22 in 2015 or Australia with less than 24 in 2015. There are other contrasts as well: Police in European countries attend national academies for 3 years, which alters the nature of the profession. In Washington (as in most states), recruits spend 19 ¼ weeks basic training at the police academy before joining the force. Another distinction is that in Europe, the standard for use of deadly force is only when “absolutely necessary.” In contrast, the US Supreme Court has held that it is legitimate when an officer “reasonably perceives imminent and grave harm.” Our state standard is similar.

Is training the answer? Officer Donald had training in practices that seem germane to the situation: during 6 years as an Army MP (deployments to Kosovo and Iraq), Donald trained “constantly” in self-defense tactics, ground- and fist-fighting, how to retain a weapon when someone is trying to take it, to be ready for the unexpected situation, and more. Yet Officer Donald was unable to defend himself in the Cooper Point Road encounter—except with his gun.

In recent examinations of officer-involved shootings in the US, the observation is that “instinct takes over.” If instinct is going to determine an interaction, as some experts assert, then training must be so continuous and repetitive that it becomes instinct. The average recruit in the US spends almost 20 times as many hours of training in using force as in conflict de-escalation. If the most continuous and repetitive training involves firearm use – the instinctive response will be to rely on your weapon – remember: Officer Donald drew his gun before he even approached Thompson and Chaplin.

Will anything change? As in too many cases nationally, Olympia’s police shooting involved a white officer and unarmed black men. The City of Olympia and police department responded to the immediate community outcry with a series of public conversations and private out-reach to black leaders and others. Among other things, these produced specific recommendations for particular kinds of training, along with a grant of $300,000 from the City treasury. Those dollars paid for courses on “Fair and Impartial Policing,” “Crisis Intervention,” “Reality-based Training” and “Blue Courage.” OPD has on-going training as well: in-service sessions as well as regular practice with firearms.

Will such training make any difference? Alter the course of another incident that starts with a minor infraction but goes out over the radio as an assault that pulls in highly-motivated officers to catch the culprits? Will any benefit flow from putting Andre Thompson and a crippled Bryson Chaplin in prison? The jury is still out on these and other questions that were not addressed in any visible way in the aftermath of this tragedy.

Bethany Weidner is a resident of SW Olympia and a former Deputy in the Office of the Insurance Commissioner of Washington State. She retired as Director of the SeaMar Medical Clinic on Olympia’s Westside some years ago.

Endnotes

1   The Prosecutor’s Office issued a 15-page report of its findings. The OPD posted a brief summary of its decision online.

2   This account and statements attributed to Donald come from a transcript of the police radio; Officer Donald’s 10-page account of the night’s happenings; a transcript of Donald’s interview by Det. Claridge, and his statements on the stand during the trial. Other documents reviewed were the Prosecutor’s Report, Reflections by Community Conversation participants, and viewing of the Safeway surveillance tape.

3   Saxby Rogers at the close of Det. Claridge’s interview of Donald.

4   From Det. Claridge’s interview of Donald.