Police shooting of Tommy Le: New report finds 'serious gaps' in King County investigation

A systemic review of Tommy Le’s shooting by a King County deputy in 2017 blasts the Sheriff’s Office for its handling of the case.

The report commissioned by the Office of Law Enforcement Oversight finds numerous flaws with the investigation and with the Use-of-Force Review Board for failing to consider significant issues such as whether Le was “likely running away from the deputy at the time the bullets struck him.” Two bullets struck him in the back, one in the hand.

King County Deputy Cesar Molina was responding to a 911 call of a man possibly armed with a knife when he shot Le in 2017. It turned out that Le was holding a pen.

The Sheriff’s Office misstatements about the case to the media were already the topic of a previous OLEO report.

The new review conducted by Mike Gennaco with the California-based OIR Group identified numerous concerns with Sheriff's Office practices in general and the agency’s handling of this case in particular. This “systemic review” and response from the Sheriff’s Office and Tommy Le’s family is expected to be presented at an online meeting of the King County Council’s Law and Justice Committee on Wednesday.

Key findings of the review

KCSO Investigators didn’t interview the deputy who shot Le until five weeks later.

Mike Gennaco is a principal with OIR group, which was commissioned to conduct the systemic review. He said KCSO is out of step with other law enforcement agencies in allowing officers to initially submit just a written statement when they use deadly force.

“The typical process is the officer is interviewed,” he said. “The whole idea of having a report suffice for the first statement from an involved deputy in an officer-involved shooting: that’s unique to us. We haven’t seen it before,” he said. “When you’re writing a report, you get to decide what you write, there’s no ability to ask follow-up questions.”

In addition, his review said once the deputy was interviewed, investigators asked no follow-up questions and did not provide a summary or transcript of the interview, which contained details that were at odds with the officer’s initial report.

More generally, the review said KCSO continues to abide by a “debunked” notion that memory can improve after officers get some sleep. But the policy is only applied to officers in the wake of a deadly force incident, not to other witnesses or situations. The report states, “Special rules such as these only serve to reinforce skepticism about the rigor and objectivity of such investigations.”

Gennaco said he supports interviewing officers the same day as the incident, as is currently the practice at the Seattle Police Department. He said some agencies wait longer but, “there’s really no good science to suggest that memory improves after 48 hours and certainly memory doesn’t improve after five weeks.” Waiting also runs “the risk of contamination” for the officer’s version of events, he said.

“Obsession with whether Le had a knife”

Because civilians reported the Le had approached them while carrying a knife, the review says it was appropriate for investigators to ask witnesses about a potential knife and search the area for one that “may have been discarded by Le.” But the review said KCSO became too single-minded.

“The lengths to which KCSO detectives sought to learn whether Le actually possessed a knife during his encounter with the civilians stands in sharp contrast to the short-shrift devoted to the other and more critical aspects of the encounter, namely the on-scene deputies’ actions and decision-making.” It adds, “this obsession with whether Le had a knife when he aggressed the civilians extended to KCSO’s public statements about the incident.”

“Remarkable” KCSO statement on pen potentially justifying deadly force “should be retracted.”

The deputies’ attempts to user Tasers on Le were unsuccessful. The review board ruled that there were no other reasonable alternatives at that point.

KCSO issued this statement about the review board findings: ”Although deputies and witnesses were convinced Le had a knife, it is not clear that events would have evolved differently if deputies realized that Le held a pen. A pen can be used as an improvised weapon. Aimed at vulnerable parts of the body, like the face or throat, it can cause serious bodily injury if used to stab someone.”

The new report says this signal that deputies could again use deadly force against someone “armed only with a pen is also remarkable statement.”

That statement "floored me, quite frankly,” Gennaco said. “I think that three deputies on scene with an individual who has only got a pen should be able to neutralize that threat without having to resort to deadly force under any circumstances.”

He said KCSO should retract that statement.

Voting members on the KCSO force review board include a union representative and a legal advisor

It’s unusual for a labor representative and a legal advisor to the law enforcement agency to be voting members of the Use of Force Review Board.

Gennaco said, "In our view the Guild representative and the legal advisor are stepping out of their roles as advocates and advisors and becoming quasi-judicial members of a voting body. We don’t believe that was really appropriate for them to try and circumvent those dual, competing roles.”

It’s a vote that can be the prelude to further discipline or, in some cases, criminal charges. The board found the officers’ actions justified under KCSO policies.

The KCSO did not answer questions for this systemic review.

Review says “KCSO chose to not make its investigative and review board personnel available” for “fear of compromising its position in ongoing litigation.” They wrote, “We have included this step in the hundreds of prior shooting reviews we have conducted, across numerous different law enforcement agencies.” They say the chance to question officials would have yielded important insights, but thanked KCSO for its “written response.”

The King County Prosecutors Office hasn’t rendered a decision on whether Le’s shooting was a crime.

Le’s shooting has not been the subject of an inquest (that process in King County is on hold due to legal challenges), and the King County Prosecutor has not released a decision on whether the officer should be criminally charged. The review states, “In our twenty years of experience reviewing officer-involved shootings, this is the first occasion we have encountered in which there has been no formal review of the deadly force’s legality. It is ironic that efforts to make the inquest process more objective and increase perceptions of legitimacy have instead resulted in no criminal determination, at least for this case.”

King County Prosecutor Dan Satterberg said, “Typically if we put a case in the inquest process we want to let that fact-finding go forward.”

Satterberg noted that to pursue criminal charges against deputies involved in Le’s shooting, “It would have to use the law that was in effect at the time.”

Voters approved a new legal standard when they passed Initiative 940 in 2018. The standard in effect when Le was shot required that prosecutors show a police officer acted with “malice,” which Satterberg said has been a nearly impossible standard to meet. Le’s death was also one of the last to be investigated by the deputies’ own agency– I-940 put in place a requirement for outside investigations, and a statewide task force is currently meeting to determine how those should work.