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Investigation into King County deputy’s killing of Tommy Le had ‘serious gaps,’ review finds

UPDATED: Tue., Sept. 1, 2020

By Mike Carter Seattle Times

SEATTLE – An outside review of the 2017 shooting death of Tommy Le by a King County sheriff’s deputy found “serious gaps” in the internal investigation, including the failure of the department to scrutinize why Le was shot in the back or adequately assess the actual threat Le, who was holding a ballpoint pen, may have posed to the deputy who killed him.

Le, 20, reportedly ran at deputies who had responded to a report of a disoriented man, possibly armed with a knife or sharp object, who had frightened and threatened several people in a Burien neighborhood the evening of June 14, 2017. The sheriff’s office initially reported Le had attacked the deputies with a knife or sharp object and was shot in self-defense.

Deputy Cesar Molina was the third deputy to arrive and, according to his sworn deposition, confronted Le and shot him 105 seconds after his arrival, according to reports. In that period, Molina and another deputy, Tanner Owen, unsuccessfully tried to incapacitate Le with Tasers before Molina shot him, according to reports.

The sheriff’s Force Review Board concluded the shooting was justified.

An outside review of the case by the Los Angeles-based OIR Group, however, described a “lack of rigor” in the internal investigation, pointing that the evidence indicated Le was likely moving away from both Molina and Owen, who Molina said he was trying to protect, when the shots were fired. The report said the sheriff’s investigators never explored the inconsistencies in the evidence.

The report was released Tuesday in anticipation of its presentation to the Metropolitan King County Council’s Law and Justice Committee on Wednesday by Deborah Jacobs, who commissioned the review as director of the Office of Law Enforcement Oversight.

Sheriff Mitzi Johanknecht, who has seen a copy of the report, did not have an immediate comment Tuesday. Sheriff’s Sgt. Ryan Abbott, the department’s public information officer, said the sheriff would address the committee in person on Wednesday.

After the shooting, Molina said Le had charged him with a “sharp, pointed object” clenched in his fist and then veered toward Owen and a group of civilians when he fired. Molina denied he shot Le in the back. An autopsy, however, found the two fatal shots struck Le in the back, and the third in his wrist.

It turned out that Le, who was set to graduate from high school the next day, was disoriented and under the influence of LSD. The investigation found Le was clutching a ballpoint pen and witnesses said he had been yelling about being the “creator” before Molina fired a total of six shots.

The new review “found that there were serious gaps in the KCSO investigation into the officer-involved shooting to Tommy Le,” wrote Michael Gennaco, president of OIR Group, who previously worked as a Department of Justice civil-rights lawyer and lead attorney for L.A. County’s Office of Independent Review.

The review found a “lack of rigor” in the review process and an incomplete factual record plagued the investigation, the report said.

“We noted problematic gaps in the areas of fact collection, identification of systemic issues, follow through on the suggestions that were identified and scrutiny of the deputy’s decision-making,” the report said.

The Use of Force Review Board “did not fully utilize or grapple with those critical facts that it did have at its disposal,” Gennaco wrote, concluding it failed to conduct an “exacting assessment” of the threat level facing Molina when he fired.

“Most significantly, the Review Board did not expressly consider and discuss the fact that Le was likely running away from the deputy at the time the bullets struck him,” the report said, suggesting “that the threat level to the shooter deputy himself was diminishing at the time he fired – even if the deputy believed Le possessed a knife.”

Gennaco said these questions and others were never explored by detectives at the scene, by the sheriff’s Use of Force Review Board or during an administrative review of the incident. Instead, the report says the sheriff’s office spent an excessive amount of time looking for a nonexistent knife, apparently to prove Le was a threat, and provided Molina five weeks to prepare before he met with shooting investigators. The interview lasted 17 minutes, according to the document.

The same consideration was also afforded Owen, who Gennaco said was treated as if he was the deputy under investigation rather than a witness. He was not questioned at the scene. His interview, also conducted weeks later, lasted 17 minutes as well.

Owen backed Molina’s version of events, and Gennaco said it was “unclear” whether the deputies “collaborated” on their statements.

It also questioned why the review board failed to acknowledge the “disparity in size” of Le and the three deputies on the scene in light of the need to use deadly force. It points out that Le was 5-foot-4 and 123 pounds while the deputies were much larger. Gennaco raised the question of why one deputy didn’t provide “lethal cover” for the other two, who could have tried a physical takedown of the smaller man.

The new report said it was “remarkable” that the sheriff’s office at the time suggested its deputies “might well use deadly force when again confronted with a subject armed only with a pen.”

Jeff Campiche, an attorney representing the Le family in a lawsuit against the county, said the “report states what the family has known from the beginning: Their son wasn’t threatening anyone.”

Campiche said the Gennaco report shows the sheriff’s review of the shooting was “nothing but a sham coverup.”

The report makes 29 recommendations, many of which the sheriff’s office has heard before. Several were reiterations of recommendations presented to the county last February by Gennaco and Jacobs when they reviewed the 2017 shooting death of 17-year-old Mi’Chance Dunlap-Gittens, which also identified serious problems in the investigation into that shooting. It had praise for the administrative review of the incident, which suggested a number of substantive changes to sheriff’s policies, aimed at preventing further deaths and ensuring rigorous investigations if deputies do kill people.

Gennaco, however, concluded the sheriff’s office allowed most of those improvements to “die on the vine.” Johanknect disputed those findings. Gennaco, in Tuesday’s report, again said changes can and should be made to the way the department reviews uses of deadly force: “Detectives entrusted with investigating officer involved shootings should ensure that the actions and decision making of the involved deputies constitutes the focal point of the investigative efforts.”

A lawsuit filed by the parents of Dunlap-Gittens was settled earlier this year for $2.25 million, with the sheriff’s office adopting a policy in the teen’s name to pursue the adoption of body and dash cameras in the sheriff’s office.

Gennaco said the Le case is unique, because due to changes in the law and legal challenges, no prosecutor has reviewed the shooting to determine whether the deputies should be criminally charged.

“In our 20 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,” Gennaco wrote.

Casey McNerthney, a spokesman for Prosecuting Attorney Dan Satterberg, confirmed the case was not referred to the office for a criminal review. Satterberg did refer the Le case for a coroner’s inquest, but a legal challenge to the inquest process has left the case in limbo.

The Le and Dunlap-Gittens shootings occurred during the tenure of former sheriff John Urquhart.

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