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Originally published February 11, 2013 at 8:00 PM | Page modified February 11, 2013 at 8:27 PM

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Chief: Seattle city attorney letting allegations against cop languish

City Attorney Pete Holmes responds to Police Chief John Diaz that his office is proceeding carefully before deciding whether to file an assault charge against Officer Clayton Powell stemming from an incident in August.

Seattle Times staff reporter

YouTube video by user LoudMoneyEnt206

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Seattle Police Chief John Diaz has sent a pointed letter to City Attorney Pete Holmes, saying a decision whether to file an assault charge against a veteran officer over his use of force has “languished for over three months.”

“I am concerned over your delay in making a decision in the Clayton Powell case,” Diaz wrote in the letter, dated Thursday. A copy of the letter was obtained Monday by The Seattle Times from a source.

Diaz noted that the case — which stemmed from an Aug. 2 clash between Powell and a man arrested in South Seattle — was referred by the Police Department to the City Attorney’s Office on Oct. 26.

“The Seattle Police Department is committed to fairness and due process and has given this incident our utmost attention,” Diaz added. “The case file you received was complete and contained all necessary information to make a filing decision and yet the case has languished for over three months.”

In a reply letter dated Monday, Holmes wrote that his office has learned from similar cases involving officers the importance of obtaining outside expert opinions before deciding whether to bring a charge.

“The charging decision in Officer Powell’s case has been delayed by the expert opinion process — we have contacted a number of potential experts who have either declined to work on this matter or were not qualified to perform this review, but we expect to engage a qualified expert soon,” Holmes wrote.

While striving to make a decision as quickly as possible, Holmes said, “we do not want to compromise the thoroughness of our legal review given the significance of charging decisions regarding on-duty uses of force by police officers.”

Diaz did not respond to a request for comment made through a department spokesman; Holmes declined to comment beyond his letter, which was released by his office.

Powell, 52, who joined the Police Department in 1993, was placed on administrative leave after the incident, in which police said he was baited into a physical confrontation with the man, then 18, while officers investigated a report of a drive-by shooting involving a pellet gun. He since has been placed on nonpatrol duty.

The incident occurred just days after the city and the Department of Justice signed a landmark settlement to address federal findings that Seattle officers had routinely used excessive force and displayed evidence of biased policing.

A video of the incident posted on YouTube showed a heated argument between Powell and the man, who allegedly spit in the officer’s face.

After the alleged spitting, Powell pushed the man, which would not be considered a criminal act because it could be viewed as self-defense, a law-enforcement source previously told The Seattle Times. But Powell is then alleged to have physically contacted the man after he was placed in handcuffs, making the officer subject to a potential assault charge, the source said.

The man alleged Powell slammed his head onto the hood of a patrol car while he was handcuffed, according to police reports obtained by The Times under a public-disclosure request. But other accounts in the reports described Powell as grabbing the man’s hair.

Powell also was captured on video at the South Precinct, where the man was taken, making a punching motion toward the man as he sat handcuffed in a holding cell. The video could be used as supplemental evidence to bolster an assault charge, the source said.

No charge against the man was forwarded by police to city attorneys.

Diaz, in his letter, expressed frustration that his department has not been able to conduct an internal investigation of Powell, which wouldn’t begin until the criminal matter is concluded.

“Maintaining trust between our department and the community is one of our highest priorities,” the chief wrote. “To that end, I would like to proceed with our own administrative investigation into our officer’s conduct with the necessary speed and diligence that the public expects and deserves.”

Diaz asked for a decision “as soon as feasible.”

Holmes, in his letter, said he appreciated the need to quickly begin an internal investigation, including “the complications posed by collective bargaining obligations.”

But he cited the need to proceed carefully in the criminal review, based on two cases in recent years involving officers — Shandy Cobane, who was alleged to have used excessive force while threatening to beat the “Mexican piss” out of a prone Latino man, and James Lee, who repeatedly kicked a man in a convenience store while trying to apprehend him.

Holmes noted no charge was brought against Cobane after a Los Angeles Police Department expert retained by his office found that Cobane’s conduct, while highly objectionable, did not rise to the level of a crime.

In Lee’s case, Holmes wrote, a state police-training instructor initially determined that a third kick to the suspect’s head wasn’t reasonable, leading to the filing of a misdemeanor assault charge. But when the expert changed his mind, the charge was “promptly dismissed,” Holmes said.

Holmes said his office’s policy in such cases is to obtain the opinion of at least one outside expert and ideally two before making a charging decision.

Holmes came under fire from the Seattle Police Officers’ Guild for bringing charges against Lee and another officer, Garth Haynes, who was acquitted of assaulting a man in an off-duty incident in 2010.

Seattle Times staff reporter Jennifer Sullivan contributed to this story, which includes information from Times archives.

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

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