Child pepper spray case: Seattle Police accountability office finds no wrongdoing

The city's Office of Police Accountability has wrapped up five investigations into complaints filed against the Seattle Police Department amid ongoing protests, including a case in which a child was hit with pepper spray.

The office has received roughly 19,000 complaints about police officers' conduct since May 30, and is still working through more than 100 use of force investigations.

The newly released findings, detailed below, involve the following cases:

• A young boy hit with an officer's pepper spray at a May 30 protest in Downtown Seattle. No violations found were found in this investigation and the deployment of the pepper spray was found to be "lawful and proper."
• An officer placing his knee in the back of a person's neck during an arrest in Downtown Seattle on May 30. Video of the arrest circulating online Two violations were found in this case: Improper use of force and a violation of the Seattle Police Department's professionalism policy.
• An officer allegedly shoving an elderly man during a May 30 demonstration in Downtown Seattle. The Office of Police Accountability determined the evidence in this case was inconclusive, citing the inability "to identify whether and when this occurred and, if so, who the involved officer was."
• An officer threatening to hit demonstrators and stating that he has "a hard on for this shit." That officer was found to be in violation of the Seattle Police Department's professionalism policy by making that commentary.
• Allegations that officers used excessive force when pushing demonstrators back and were particularly aggressive with a man because of his sexual orientation. Investigators found that the use of force in this case was "lawful and proper" and that the claims of discrimination were unfounded.

In the case of the child pepper sprayed in May, footage of the aftermath shows the then 7-year-old boy screaming in agony as bystanders pour milk into his eyes to relieve the pain. The video sparked an immense outcry, and was the impetus behind 13,000 complaints lodged against the Seattle Police Department. Most of them were not submitted by eye witnesses.

RELATED: A child pepper sprayed, a woman's eye severely injured. Protesters condemn Seattle Police's tactics

After reviewing the footage and about nine videos from body-worn cameras, the Office of Police Accountability determined the officer in question had not targeted the child. Rather, the officer was aiming at a woman pulling on another officer's baton just as the boy and his father moved in their direction, said agency director Andrew Myerberg.

"From our perspective, I think what the video shows is that there's an incredibly unfortunate result in that this child has been affected by pepper spray," he said. "So regardless of the findings, this child is a victim."

Myerberg added that he and his team determined that the pepper spraying officer's use of force "was consistent with policy and the child being affected was really not a foreseeable result of those actions."

He also reiterated that officer Jared Campbell was not the officer in pepper spray incident.

The father of the child, Mando Avery, said in June that he had been standing around when he felt something hit his face. But it didn't dawn on him that it was pepper spray until he heard his now 8-year-old son screaming.

"I looked down and that's when I felt it in my eyes. But I could see it all over my son," Avery said.

Avery opted not to participate in the Office of Police Accountability's investigation. Civil rights attorney David Owens, who is representing Avery's family, issued a written statement on their behalf.

"We are deeply disappointed, but not surprised, by the result reached by the OPA," the statement reads. "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.'"

The statement goes on to say that "no police officers attempted to render aid to the child making any apology tough to accept."

The Office of Police Accountability's findings in the case, however, state that "an unidentified officer stepped forward and called out for the Child to be brought over for medical assistance" and that "demonstrators then began accusing that officer of pepper spraying the child."

Owens also called attention to the fact that the no officers involved in the case have been publicly named, stating that "this undermines the claims of objectivity and transparency that the city purports to value."

Myerberg pointed to recommendations the Office of Police Accountability made that the Seattle Police Department revise its crowd control policy, which he published in August.

"I think it's abundantly clear through the recommendations that we had issued as part of the legislation passed by the [City] Council that there are significant flaws in the way that SPD has approached these protests," he said.

Myerberg also underscored that the Office of Police Accountability's role isn't to make value judgments when it comes to investigating police misconduct. Instead, the office is tasked with determining whether or not officers have violated department policy.

"With these protest cases, both sides will be angry at us," he said. "There are people that will be upset that a case was sustained because they feel like, 'How could you possibly sustain that case against this officer?' On the other side, people will be angry because we didn't sustain certain cases."

The office, however, does have the power to advocate for disciplinary action following findings of police misconduct.

"Discipline depends on on a whole bunch of things," Myerberg said, including an officer's history. "Does the officer have prior discipline for similar related offenses? The officer's general performance, the facts of the underlying case, and what discipline has been imposed in similar cases."

In the case of the police officer placing his knee on a demonstrator's neck, the Office of Police Accountability asserted in its findings that the incident "is not comparable to what occurred in Minneapolis," in reference to the police killing of George Floyd, which was the impetus behind numerous protests across the country this year.

The Seattle officer's knee remained on the person's neck for 13 seconds before another officer moved it off, in contrast to the eight minutes and 46 seconds that former Minneapolis police officer Derek Chauvin pressed his knee into Floyd's neck.

However, investigators stated that even if the Seattle officer placed his knee on the arrestee's neck inadvertently and didn't restrict their breathing, "it was still inconsistent with policy and training."

The office is still working through more than 100 investigations related to police conduct at protests, Myerberg said. In total, the agency has received approximately 19,000 complaints since May 30. That's a new record and roughly 14 times the typical amount of complaints the office receives annually.

"Generally, we would receive probably between 1,300 and 1,500 complaints in a given year," he said. "About between 35% and 40% result in an investigation. Some are closed because they allege allegations against other law enforcement agencies or they're making a public records request."

For updates on the progress of investigations, you can visit the Office of Police Accountability's online protest complaint dashboard, which is updated every two weeks.

This story has been updated to include a written statement issued on behalf of Mando Avery and his family.