By Steve Miletich
The Seattle Times
SEATTLE — Citing newly discovered evidence, Interim Seattle Police Chief Harry Bailey has reversed a finding that an officer used excessive force when he stepped on the head of a handcuffed man outside a Ballard bar in 2010.
Bailey, as required under city rules, notified Mayor Ed Murray and City Council President Tim Burgess of the decision by letter Monday, saying city attorneys recommended the action after a medical expert found the officer sustained a concussion during a brawl that preceded the contact with the handcuffed man.
The concussion, according to the expert, may have caused the officer, Garth Haynes, to "be confused and lack the ability to control his actions," Bailey wrote in the letter.
The evidence was obtained by the City Attorney's Office as it was preparing for an arbitration hearing on Haynes' appeal of the excessive-force finding.
Bailey, whom Murray named interim chief in January, sparked a controversy in February when he reversed misconduct findings against seven officers who had brought appeals, one of which he later reinstated.
Bailey didn't act then on other pending appeals, including Haynes' appeal.
Haynes' case attracted widespread attention at the time it occurred, largely because the Police Department was under growing scrutiny over its use of force.
Haynes was charged in July 2011 with fourth-degree assault, a gross misdemeanor, just as the Department of Justice (DOJ) was in the midst of an investigation that ultimately concluded that Seattle police officers had engaged in a pattern or practice of using excessive force. The city reached an agreement with the DOJ in 2012 to adopt reforms under a court-ordered consent decree.
Haynes was acquitted of the criminal charge, but a Police Department internal investigation subsequently found that Haynes escalated the December 2010 confrontation at the BalMar nightclub and that he used "poor discretion" when he confronted a woman who had taken his coat and the coat of a friend.
Haynes, who was off duty, wound up in a fight with three men who came to the aid of the woman, despite showing his badge and calling 911 for help.
The three men were arrested for fighting with Haynes and his friends, and Haynes stepped on the head of one of the men, Jake Baijot-Clary, while the suspect was handcuffed on the ground.
Haynes' action was captured on patrol-car video and widely shown in news-media accounts of the incident.
Just before his trial, Haynes produced an expert who provided an opinion that Haynes had experienced a concussion or a concussion with a heightened emotional state after the fight and likely wasn't in control of his actions or acting deliberately when he stepped on Baijot-Clary's head, city attorneys said in a two-page memorandum sent to Bailey and a Murray aide May 27.
City attorneys asked for a continuance to obtain their own expert's assessment, but the judge denied the motion and the city didn't have time to retain an expert, the memorandum said.
Haynes testified at trial he had no memory of stepping on Baijot-Clary's head, and his expert testified on his behalf.
Based on the internal investigation -- which concluded that, in light of Haynes' clear memory of preceding events, he was aware of his actions -- then-Police Chief John Diaz sustained the excessive-force finding, according to the memorandum.
Diaz imposed a 10-day suspension but held it in abeyance if Haynes stayed out of trouble.
In preparing for Haynes' appeal, the City Attorney's Office retained a neurophysiologist, Phyllis Sanchez, who concluded Haynes had received a low-level concussion that would affect his judgment. City attorneys, in their memo to Bailey and the Murray aide, said they concluded the city was unlikely to prevail at the arbitration hearing.
In addition, the weight of the opinions from two experts "strongly suggests" that Haynes was impaired by a concussion and that the Police Department should remove the use-of-force violation, their memo said.
City Attorney Pete Holmes, because of his initial decision to prosecute Haynes, was screened from the process that led to Bailey's reversal, Kimberly Mills, Holmes' spokeswoman, said in a statement.
"We went to trial with the evidence available at the time, which included an in-car video that showed Officer Haynes stepping on the head of a handcuffed man prone on the ground," Mills added. "There was no diagnosis of a concussion when Officer Haynes was evaluated by medical personnel following the incident."
Mills said her office respected the jury's decision to acquit.
Last year, the city of Seattle agreed to pay $75,000 to Baijot-Clary to resolve a federal lawsuit. On the payment, Mills wrote that whether Haynes' action was intentional or not, Baijot-Clary suffered injuries.
"If the in-car video was introduced in a civil trial, the jury could have awarded money in damages; settling the case was preferable to going to trial."
McClatchy-Tribune News Service
Copyright 2014 The Seattle Times