It’s now up to the Clark County Prosecuting Attorney’s Office to evaluate whether an Olympia police officer has a legal defense under state law in the shooting death of an Olympia man last year.
Initiative 940, passed by voters in 2018 and the law, enacted in 2019, changed the legal defense for law enforcement officers using deadly force. Prior to the change, an officer was subject to the “malice and good faith clause,” which for all practical purposes was an immunity. In the long history of that law, the only officer ever charged was acquitted.
Now, the law says “in order to be protected from criminal liability, the use of deadly force by a peace officer must be in good faith, where “good faith” is an objective standard which shall consider all the facts, circumstances, and information known to the officer at the time to determine whether a similarly situated reasonable officer would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual.”
Timothy Green, 37, apparently was in a mental health crisis when the officer fired the shots that killed him on August 22. Green, a Black man, died of three gunshot wounds to the chest, according to the Thurston County Coroner.
The Olympia Police Department and a team investigating the shooting have repeatedly have refused to identify the officer who fired the shots at Green. Police have alleged Green refused to drop a knife when ordered to do so, and that he was shot when tasers used by officers were not “effective”.
At issue is whether the officer’s actions fall within the parameters of when force, including deadly force, is allowed under a state law that took effect in 2021. The law states officers should use all possible de-escalation techniques before employing physical force, and should use only the “least amount of physical force necessary to overcome resistance under the circumstances,” including whether the individual is a vulnerable adult, has a mental, behavioral or physical impairment, or is impaired due to alcohol and/or drug use. When considering deadly force, an officer must use reasonable care, and “when possible, use less lethal alternatives that are available and appropriate under the circumstances before using deadly force.”
Until last week, the case had been in the hands of the Capital Metro Independent Investigations Team, which was called in shortly after the shooting occurred. The CMIIT does its work in the aftermath of use of deadly force incidents through an agreement among the Lacey, Olympia, Tumwater, and Yelm police departments and includes officers from those departments, Washington State Patrol crime scene technicians, and community members. Law enforcement officers from the jurisdiction where the incident occurred are not part of the investigative team.
Last Thursday, in a session not open to the public, the CMIIT briefed the Clark County Prosecutor’s Office on its investigation. The case was referred there by Thurston County Prosecutor Jon Tunheim, a practice developed by prosecutors to avoid conflict of interest or the appearance of conflict of interest.
In an email to Clark County Prosecutor Tony Golik dated November 1, Tunheim said:
We had an OIS (officer-involved shooting) by Olympia Police Department. I’ve been told that the investigation is wrapping up and will soon be referred for review. The person shot did not survive and appears to have been in a mental health crisis at the time of the shooting. Would your office be able to undertake this review for us? If so, I would really appreciate it.
The Clark County office will begin reviewing the investigation once it receives all of the documents it needs from the CMIIT the week of January 16, a spokesperson for that office said Friday. No timeline has been set for completion of its review.
The Olympia Tribune has requested the investigative report from the CMIIT, but has been told it may take until Feb. 13 to receive it.
Tara Tsehlana, a spokesperson for the Thurston County Prosecutor’s Office, said if Clark Countydecides the officer’s use of force was not justified, “the case would be referred to our office for consideration of criminal charges. We would then treat it as any other case with the standard review process.”
In a statement Friday, Green’s family, who also will be briefed on the CMIIT’s work, said they are keeping a close eye on “the thoroughness and completeness of the investigation and whether the officers followed state and local laws and policies, which are in place to protect people like Tim.”
“We have been forever impacted by the death of our son and brother. Tim did not deserve to die this way. As a mother (Millie Green) I will never forget that day. And nor does any other mother forget the day their child was taken because of a mental health crisis.”
The statement said the family wants answers to these questions:
• Why didn’t the officers call for the Olympia Crisis Response Unit?
• Did the officers take all possible steps to avoid the use of force?
• Given that two of the four officers at the scene had just recently encountered Tim, how did the officers at the scene communicate this?
• Was this prior knowledge given proper weight and recognized when looking at “all the facts and circumstances known to the officer at the time”?
• Did the Olympia Police Department follow its policies, training, and (state law) RCW 10.120.020, which requires that the least amount of physical force be used, that deadly force be necessary and limited to an immediate threat of death or serious injury?
• Did the officers render first aid at the scene as required by state law?
“We believe officers at the scene overlooked the fact that Tim’s life had meaning and his life was sacred, the family said. “As the prosecutor reviews the investigation, we ask the community to stand with us patiently and to keep Tim’s life at the forefront of your prayers.”