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Originally published Thursday, January 13, 2011 at 9:17 PM

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Former U.S. attorneys join call for federal civil-rights probe of Seattle police

Two former U.S. attorneys have joined the call for a federal civil-rights investigation into the practices of the Seattle Police Department, saying they represent a 19-year-old man who was allegedly threatened with a gun by an off-duty police officer during a 2009 road-rage incident.

Seattle Times staff reporter

Two former U.S. attorneys have joined the call for a federal civil-rights investigation into the practices of the Seattle Police Department, saying they represent a 19-year-old man who was allegedly threatened with a gun by an off-duty police officer during a 2009 road-rage incident.

Mike McKay, now in private practice, sent a letter to U.S. Attorney Jenny Durkan late Wednesday asking her to consider the incident as she weighs whether or not to seek a wide-ranging Justice Department investigation into the SPD.

The American Civil Liberties Union, joined by 34 community organizations, in December called for an investigation into the SPD.

McKay on Thursday said he believes the Police Department and Chief John Diaz, who was acting chief at the time, engaged in a "full-blown cover-up" by trying to prevent the release of case investigative documents requested through the state Public Records Act.

The department was ordered by a King County Superior Court judge in August to pay more than $70,000 in fines and attorney fees for failing to turn over the records in the case. The department has appealed.

McKay claims in his letter that he can show a Seattle police detective tried repeatedly to have his client, Evan Sargent, of West Seattle, charged with a crime, at one point asking county prosecutors to charge him with aggravated assault on a police officer, a Class A felony.

When the county declined, Detective Nathan Janes shopped the case to the Seattle City Attorney's Office, seeking a misdemeanor complaint against Sargent.

All the while, according to McKay, Janes allegedly ignored witnesses and other evidence indicating that the off-duty officer was the aggressor and had lied about the incident. The officer was identified as 46-year-old Donald Waters, a 12-year department veteran and detective.

Eight-page letter

Sargent is represented by McKay and his brother John McKay, also a former top federal prosecutor, and attorneys Patrick Preston and Thomas Brennan, who signed the letter to Durkan. Mike McKay served as U.S. attorney from 1989 to 1993. John McKay held the appointment from 2001-2006.

The eight-page letter, with supporting documents, outlines the July 28, 2009, incident between Waters and Sargent.

In an e-mail to Durkan, Mike McKay said he believes the letter contains evidence of "abuses by SPD's Office of Professional Accountability (regarding a cover-up of police criminal activity) and Chief Diaz's sworn testimony, which was calculated to mischaracterize OPA's findings." Mark Jamieson, a spokesman for Diaz, said the department had not seen the letter before it was given a copy by The Seattle Times.

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"We are aware of the case, which has been going on since 2009," he said. "As for the allegations against the chief and department in the letter, what I will say is that the chief has been very vocal about this: We would welcome any investigation by the Department of Justice or anybody else who wants to come in and look at the Seattle Police Department. Not a problem."

In his e-mail to Durkan, McKay noted that the "OPA is a subject about which I know you have a personal interest."

Durkan and McKay played key roles in the formation of OPA after serving together on a 1999 mayoral commission that looked into police oversight and internal investigations. Both were on another mayoral panel in 2007 — before Durkan became U.S. Attorney — that heard complaints and made recommendations about the OPA's operation.

Durkan has received the letter and would review it, according to spokeswoman Emily Langlie.

In December, the American Civil Liberties Union and 34 community groups called on Durkan to open a broad civil-rights investigation into the "patterns and practices" of the Seattle Police Department after a string of disturbing and highly publicized instances of violent confrontations involving police, many involving people of color.

In the most serious instance, in August, Officer Ian Birk shot and killed an intoxicated First Nations woodcarver who was carrying a small folding knife as he walked along a busy street near downtown. An inquest into that shooting is ongoing in King County District Court.

Among those in the audience has been Assistant U.S. Attorney Bruce Miyake, who oversees Durkan's civil-rights section.

Any civil-rights investigation would require the approval of the Department of Justice's Civil Right's Division in Washington, D.C. Assistant Attorney Thomas Perez, who heads the division, was also sent a copy of the letter.

Confrontation in alley

The 2009 incident involving Sargent and Waters happened on a hot summer day. Waters — who was off-duty and wearing shorts and civilian clothes — allegedly confronted Sargent in an alleyway near the West Seattle Junction that Waters was trying to use as a shortcut to avoid traffic. Sargent had parked his grandfather's truck in the alley, hazard lights flashing, to pick up a load of laundry for his mother's business.

Waters was reportedly agitated and angry when Sargent returned to the truck. He allegedly smashed its side mirror with his fist. Sargent, fumbling for the door handle, fell from the car and grabbed a baseball bat, which he then held in front of him to keep Waters at a distance, witnesses said.

Waters returned to his car and got a handgun, pointed it at Sargent and only then identified himself as an officer, according to McKay's letter.

Sargent was arrested and booked into the King County Jail for investigation of aggravated assault on a police officer with a weapon.

"The incident itself was very serious, but police are human and make mistakes," said McKay, who filed a claim against the SPD alleging Waters and the department violated Sargent's civil rights.

"But the real problem is the way the department has reacted and has resulted in a full-blown cover-up and a clear violation of state public-records laws," McKay said.

McKay believes the department has tried to protect Waters and repeatedly withheld public records in the case while trying to blame Sargent.

When county prosecutors wouldn't charge Sargent and sent the case back to Janes, the detective, suggesting he talk to witnesses, Janes allegedly met with two supervisors and then took it to the City Attorney's Office to try to get Sargent charged with a misdemeanor, according to McKay's investigation. The city also declined to charge Sargent, according to the letter.

The OPA investigated Sargent's allegations and determined they were "not sustained," meaning that there was not enough evidence to determine what happened one way or another.

McKay claims that Chief Diaz, in a sworn declaration, "grossly mischaracterized" the OPA's findings "to justify SPD's decision to withhold public records."

Mike Carter: 206-464-3706 or mcarter@seattletimes.com. Seattle Times researcher Miyoko Wolf contributed to this report.

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