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Originally published November 23, 2011 at 1:40 PM | Page modified November 24, 2011 at 11:08 AM

Assault charge against Seattle officer to be dismissed

Citing new information and the "interests of justice," Seattle City Attorney Pete Holmes announced Wednesday he will dismiss an assault charge brought against a police officer who repeatedly kicked a teenage suspect.

Seattle Times staff reporter

Raw Video | Surveillance video of Seattle PD officer kicking suspect

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Citing new information and the "interests of justice," Seattle City Attorney Pete Holmes announced Wednesday he will dismiss an assault charge brought against a police officer who repeatedly kicked a teenage suspect.

The decision regarding Officer James J. Lee came after an outside expert, who earlier had found the last of three kicks to be unwarranted, changed his opinion. The expert recently reviewed a previously unavailable statement Lee gave just after the incident and watched video of the confrontation played at a slower speed.

Holmes' spokeswoman Kimberly Mills and Lee's attorney, Peter Offenbecher, said the additional evidence led to the dismissal. But neither would elaborate on specific factors that prompted the expert to reverse his finding.

Lee was charged with fourth-degree assault in April after surveillance video showed him kicking the teen inside a downtown convenience store after a police drug operation erupted in chaos.

His case was one of several high-profile confrontations between officers and citizens in the past year and a half that prompted the U.S. Justice Department to open a civil-rights investigation in March into the Police Department's use of force and its treatment of minorities.

Lee, 43, who was scheduled to go on trial in January, now faces an internal investigation by the Police Department, which was placed on hold when a criminal investigation was opened.

Given the expert's finding, it is unlikely the department will find he used unnecessary force.

The expert, Robert Bragg of the Washington State Criminal Justice Training Commission, originally concluded that the third kick, delivered to the suspect's head, wasn't reasonable and necessary.

But Bragg was not provided a standard use-of-force statement Lee was compelled to write after the incident.

Lee's statement was made under the so-called "Garrity rule," named after a U.S. Supreme Court decision that prohibits prosecutors from using incriminating statements that officers are required to provide as part of their job.

Statements made after invoking Garrity may be used for internal police purposes, including discipline, but not for a criminal prosecution.

Offenbecher recently agreed to supply city attorneys the use-of-force statement as part of additional information on the case.

In a Nov. 21 opinion, Bragg found the third kick was a reasonable tactic to control the suspect and within teachings of the Training Commission.

Bragg, however, added that the kick was "not the best tactic available."

Offenbecher, who praised Holmes and his prosecutors for Wednesday's announcement, said Lee is relieved.

The Justice Department, in a separate action Wednesday, sent a letter to Seattle Mayor Mike McGinn expressing concerns about the overuse of the Garrity rule by the Police Department.

Mills said the timing of her office's action and the Justice Department letter was a "complete coincidence."

The misdemeanor charge brought against Lee stemmed from an Oct. 18, 2010, incident inside Joe's Mart, where surveillance video showed Lee kicking a 17-year-old African-American teen suspected of trying to rob an undercover narcotics officer.

The teen, D'Vontaveous Hoston, was later exonerated when he was acquitted of first-degree attempted robbery.

City attorneys charged Lee after an investigation by the State Patrol, which was brought in at the request of Seattle Police Chief John Diaz.

Under the gross misdemeanor, Lee faced up to a year in jail and a $5,000 fine.

At the time, Holmes said officers have a dangerous job but must be held accountable when they use unreasonable force.

Sgt. Rich O'Neill, president of the Seattle police union, has defended Lee, saying he was following accepted training practices, and the union previously said the charge sent a "terrible message." O'Neill couldn't be reached Wednesday.

The encounter between Lee and Hoston, who has since turned 18, happened shortly after police were attacked during a narcotics buy-bust operation.

Lee, who had watched the operation from a short distance away, chased people who ran after an undercover officer was hit.

On the video, Hoston can be seen inside the store with his hands in the air as Lee approaches him and kicks at the teen's groin area. After Hoston falls to the floor, Lee kicks him in the torso then the head.

Lee, who joined the Police Department in 1999, was placed on paid leave about a month after the incident when the department learned a television station planned to air the video. He was reassigned to a different position 30 days later.

In April, Hoston filed a federal lawsuit over the incident.

Hoston was charged in July with unlawful possession of a firearm during an incident in downtown Seattle in which his cousin was said by police to have yelled to Hoston that he was endangering the lawsuit.

Seattle Times staff reporter Jennifer Sullivan and news researcher Miyoko Wolf contributed to this story, which contains information from Seattle Times archives.

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

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