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Originally published February 15, 2011 at 6:27 PM | Page modified February 16, 2011 at 10:08 AM

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No charges against Seattle officer who shot woodcarver

King County prosecutors have decided not to file criminal charges against Seattle police Officer Ian Birk in the fatal shooting of woodcarver John T. Williams, according to sources familiar with the decision. Meanwhile, the Police Department has found the shooting unjustified, which could lead to Birk's firing.

Seattle Times staff reporter

King County prosecutors have decided not to file criminal charges against Seattle police Officer Ian Birk in the fatal shooting of woodcarver John T. Williams, sources familiar with the decision say.

The Prosecutor's Office is expected to announce the decision in a news conference, scheduled for 10 a.m. Wednesday, the sources say.

Shortly after, Seattle Police Chief John Diaz is expected to disclose at a news conference that the department's Firearms Review Board has reached a final decision that the Aug. 30 shooting was not justified, say sources briefed on the finding.

The board's conclusion, reached in private deliberations a few days ago, allows the Police Department to begin internal proceedings that could lead to Birk's firing or other discipline, the sources said. In October, the board reached a preliminary decision that the shooting was unjustified, sources said then.

Deputy Police Chief Nick Metz said Tuesday he couldn't comment in detail on the department's plans but said police officials were working on a statement on the course of the case.

Metz said the department was aware that the outcome is a "very sensitive issue" and that the "community is watching closely."

Birk has been on paid leave since the shooting.

The Prosecutor's Office declined Tuesday to discuss its decision.

"Our decision has not been finalized and we will make an official announcement in the near future," said Ian Goodhew, deputy chief of staff for King County Prosecutor Dan Satterberg.

Prosecutors have been confronted with a steep legal hurdle in deciding whether to charge Birk with murder or manslaughter. State law shields police officers from criminal prosecution when they claim they used deadly force in self-defense, unless it can be shown they acted with malice and a lack of good faith.

A spokesman for Mayor Mike McGinn said Tuesday night that Satterberg and Diaz will make statements on the case on Wednesday.

Spokesman Mark Matassa did not reveal what would be said. He said McGinn will hold his own news conference Wednesday.

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The decision not to file criminal charges comes about a month after a King County inquest jury reached mixed findings on the shooting. Four of eight jurors found that Birk wasn't facing an imminent threat when he fatally shot Williams, and that he didn't give Williams sufficient time to put down a knife he was carrying during their confrontation on a Seattle sidewalk.

One juror found that Birk faced a threat and gave Williams sufficient time; three others answered "unknown."

Four jurors determined Birk believed he was in danger when he encountered Williams, while four others answered "unknown."

The findings regarding the actual threat to Birk stand in contrast to previous King County inquest decisions, in which jurors have almost always upheld the actions of police officers involved in deadly shootings.

Inquest jurors weren't asked to weigh whether Birk was guilty or innocent of wrongdoing in the shooting.

The results were reviewed by the Prosecutor's Office to help determine whether to file criminal charges.

Even before the inquest, Birk, 27, who joined the department in July 2008, had been stripped of his gun and badge as a result of the preliminary finding by the Firearms Review Board and Diaz, the police chief, that the shooting was unjustified, sources said. The board waited to make a final decision until after the inquest.

The board, made up of Deputy Chief Clark Kimerer, two captains and a lieutenant, heard testimony in October from civilian witnesses and police investigators. One board member sat in on the inquest. The board determines if officer shootings fall within department policies and procedures. The inquest jury sifted through conflicting testimony and two patrol-car videos and audio that captured some of the confrontation at Boren Avenue and Howell Street but not the shooting itself. Their answers did not have to be unanimous.

Evidence presented during the inquest showed about four seconds elapsed between Birk's first order to Williams to put down the knife and when he fired.

The shooting occurred after Birk saw Williams cross the street holding a flat piece of wood and a knife with a 3-inch blade. Williams, a member of Canada's First Nations people, used the knife for carving, his family says.

Birk got out of his patrol car and followed Williams onto the sidewalk. Birk shouted at Williams to get his attention and ordered him three times to put down the knife. Birk fired when Williams didn't respond, hitting him four times.

Birk testified during the inquest that he was initially concerned because Williams showed signs of impairment while carrying a knife. He said when he sought to question Williams, Williams turned toward him with a "very stern, very serious, very confrontational look on his face."

Birk told jurors Williams "still had the knife out and [was in] a very confrontational posture" when he opened fire.

Williams, a chronic inebriate, had a blood-alcohol level measured during his autopsy at 0.18 percent, above the 0.08 percent at which a driver is deemed legally drunk.

During the inquest, two witnesses contradicted Birk, saying they didn't see Williams do anything threatening before he was shot.

Birk testified that shortly after the shooting he told a witness, a responding officer and a detective that Williams had not complied with his order to put down the knife. He acknowledged that, at that time, he did not tell them that Williams had threatened him.

It wasn't until hours later, Birk testified, that he provided a detailed written statement alleging that Williams had menacingly displayed the knife and "pre-attack indicators."

Williams' knife was found folded in the closed position after the shooting.

Jurors unanimously found that Williams was carrying an open knife when first seen by Birk. But four answered "no" and four "unknown" when asked if the blade was open when Birk fired.

In reviewing the case, prosecutors had various options: charging Birk with second-degree murder, first-degree reckless manslaughter, second-degree negligent manslaughter, or declining to bring a charge.

A second-degree-murder charge would require prosecutors to show beyond a reasonable doubt that Birk intended to unlawfully kill Williams, or that Birk intentionally and unlawfully assaulted Williams, causing his death.

Manslaughter requires less proof. Prosecutors must show only that reckless or negligent conduct caused a death, though they still must do so beyond a reasonable doubt.

Federal prosecutors have been monitoring the case and could consider bringing a criminal civil-rights case against Birk. But they must show willful criminal conduct to obtain a conviction.

The shooting of Williams and other incidents have prompted the American Civil Liberties Union of Washington and 34 community groups to call on the U.S. Justice Department to investigate Police Department practices. Seattle officers have been under scrutiny over use of force in several incidents in the past year, particularly in dealings with minorities. Justice has opened a preliminary review of the department.

At least two protests are planned for Wednesday over the decision not to file criminal charges against Birk.

The Capitol Hill Blog said there would be a protest at City Hall at 4 p.m., and a Facebook event page announced a protest at 6 p.m. at Westlake Park in Seattle.

Information from staff reporter Jennifer Sullivan and Times archives is included in this story.

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com

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