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Excessive Force Complaint Sustained In Mark Hays Case

By David Packman

The Seattle Police Department's Office of Professional Accountability's Civilian Auditor released her biannual report recently and in it was a revelation that I wasn't aware of. It appears as though the OPA, the SPD's internal investigations division, found that officers used excessive force when they arrested Mark Hays and Michael Lujan earlier this year.

If you didn't remember, Mark Hays and his friend were walking back from a night out when they apparently jaywalked in front of an unmarked SUV full of undercover Seattle Police officers. The plainclothes officers, part of the "proactive policing" "Anti-Crime Team" yelled at the pair and told them they could be arrested for pedestrian interference. The pair apparently told the officers where they could put their interference and the officers piled out of their unmarked SUV and started arresting them.

What happened next, supposedly in front of several witnesses, is a matter of dispute. Officers allege that when they began arresting Lujan on charges of pedestrian interference that Hays jumped on one officers back, even though witnesses who talked to reporters but later refused to testify said they never saw Hays tackle an officer.



The ACT officers then arrested Hays for assaulting an officer and pedestrian interference, an arrest that was also caught on a responding unit's dashcam, as seen above courtesy of The Stranger's coverage of the incident. That video shows an ACT officer repeatedly punching and kneeing Hays after he was under control and face-down on the ground even as the cruiser approached the scene, and then showed even more punches and knees hit Hayes afterward as well.

Hays was later found guilty of assaulting an officer when none of the witnesses testified but Lujan was found innocent of pedestrian interference, essentially meaning that the initial excuse to effect the brutal arrest of Hayes was unfounded.

The SPD OPA Auditor, Katrina Pflaumer, had this to say about her review the case...

"In another case I agreed with a Sustained finding for excessive force where the back-up officer?s in-car video had recorded the interaction. The officer had been jumped on from the rear as he took control of the subject?s jay-walking friend. When the attacking young man was down and under control, the officer continued to use punches and knee strikes, which he claimed were necessary to control resistance. In the majority of cases, the in-car videos I have seen support the officers. In this case, however, the video was at 180-degree variance with the officer?s perceptions or recollections and a Sustained finding was recommended by OPA and confirmed by the Chief."

While this finding may have been noted in a previously released monthly report from the OPA, generally the description of events in those findings are intentionally left vague, which makes it difficult to determine which person's complaint that finding is related to, but the description the auditor supplied leaves no doubt as to who this case is referring to.

One point to remember is the recent contract changes between the city and the police union states that any officers who are found to have lied during an internal investigation are to be fired. The auditor, in this observation about the case, appears to be hinting that she felt the officer in question lied by saying his testimony was a 180 degree contradiction of the video evidence... but we've not heard of any officers being fired from the SPD recently.

But, interestingly enough, the auditor's report doesn't end there as she describes an identical case involving the same officer and member of the rather infamous SPD ACT.

"I was troubled by a case with very similar circumstances three months later, involving the same officer, same kind of strikes delivered, same justification claimed, and same words spoken; but where no in-car recording was available. In that case a person with a felony warrant fled from the officers, was tackled, and was delivered knee strikes in the mid-section during handcuffing. Since the officers? testimony was consistent and supportive of each other, the result was a finding of Exonerated. The Director and I agreed that, despite some similarities, there was no evidence available to sustain an allegation of excessive force against the employee."

As we covered shortly after the Hays incident, the SPD ACT is responsible for a large number of excessive force complaints due to their aggressive form of "proactive policing" methods. It should be interesting to see if a civil case does develop from this case as Hayes reportedly told reporters that he was in talks with civil rights attorneys shortly after his arrest. Per departmental policy, there has been no word on how the officer was disciplined, or if any discipline had been given over the sustained finding at all.

Full post as published by Injustice in Seattle on December 16, 2008 (boomark / email).