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Originally published September 10, 2013 at 9:09 PM | Page modified September 10, 2013 at 9:15 PM

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SPD officer suspended for escalating confrontation, excessive force

Police chief’s discipline addresses the type of issues raised by the Department of Justice when it found Seattle officers too often resort to excessive force.

Seattle Times staff reporter

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Interim Seattle police Chief Jim Pugel has handed an eight-day suspension to a patrol officer, finding the officer used excessive force and unnecessarily escalated a confrontation with a man suspected of hit-and-run driving, according to newly released records.

The discipline, imposed on Officer Eric Faust, addressed the type of broad issues raised by the Department of Justice when it found in 2011 that the Police Department had engaged in a pattern or practice of constitutional violations regarding use of force. The finding led to a landmark settlement last year in which the department agreed to make broad reforms.

Pugel’s findings, outlined in a June 7 disciplinary-action report, were disclosed Tuesday in documents released to The Seattle Times under a public-records request. One day of Faust’s suspension was held in abeyance for two years if he doesn’t have the same or similar misconduct.

Faust, 37, who joined the department in 2006, is appealing the suspension without pay.

The case, which first attracted attention last year when the Police Department released dashboard-camera video of the Oct. 6, 2012, incident, took an unusual turn when the man who was stopped, Leo Etherly, later died at age 34 of what his attorney described as a drug overdose.

Faust and his partner, Ron Campbell, were dispatched to a hit-and-run accident involving a bicyclist and a white van in the Central Area.

While en route, the officers saw a van matching the description and followed it to a nearby parking lot.

The officers contacted Etherly as he walked away from the van as a third officer, Jonathan Chin, arrived.

“Upon contact, the subject was belligerent and uncooperative with the officers,” according to a report by the department’s Office of Professional Accountability (OPA).

Video from Chin’s patrol car indicated Campbell persuaded Etherly to place his hands on the patrol car’s hood.

But Etherly kept trying to remove his hands, complaining the hood was hot. Etherly suggested he would sit on the bumper, with Campbell and Chin seeming to go along with the request, according to the OPA report.

Faust, in a statement made later to the OPA, said he had gone to inspect the van and that when he returned he heard Etherly raising his voice but no longer acting aggressively.

Yet Faust “interjected himself in an aggressive manner in an unsuccessful effort to gain control of the subject,” OPA found.

When Faust asked Etherly his name, Etherly became hostile but remained seated on the bumper.

After Etherly refused to give his name, Faust decided to handcuff him to protect everyone’s safety.

But other than shouting and expressing hostility, Etherly “had done nothing physically aggressive or combative,” according to the OPA report.

“An arrest based upon the vehicle-related crimes was premature” since little was known about the facts, OPA found.

With three officers present and Etherly “in a position of disadvantage,” the OPA report said, the use of force seemed premature when little verbal persuasion had been attempted.

“The use of force at this point was not necessary,” OPA concluded, noting that Faust’s actions seemed to expose him to “far greater threat of assault or injury” than leaving Etherly seated on the bumper encircled by three officers.

In the video, Etherly can be seen trying to yank his left hand free as the three officers tried to handcuff him. Faust then put a hand to Etherly’s neck and pushed him back onto the hood of the patrol car.

When Etherly complained of being choked, Faust responded: “I’m not choking you. I’m getting your head away from me.”

Etherly then appeared to turn his head and spit at Faust, who along with the other officers was hit with saliva. Etherly’s attorney, James Egan, has said Etherly was breathing his own saliva and didn’t intend to spit.

It was at this point Faust used his forearm to strike Etherly in the head, as Etherly continued to resist being handcuffed. As the officers took Etherly to the ground, mostly out of camera’s view, Faust appeared to deliver a second punch to Etherly’s head.

The two blows to stop spitting or aggression were “not reasonable under the circumstances,” OPA found.

In Pugel’s disciplinary report, he wrote that Faust properly detained Etherly.

“However, you escalated the detention of the suspect which resulted in the suspect spitting at you,” Pugel wrote. “You then responded by punching the suspect in the face.”

The Justice Department, in its 2011 findings, concluded that Seattle officers “escalate situations and use unnecessary or excessive force when arresting individuals for minor offenses.”

It also found the department often used excessive force against people who are already under control, as well as against people who talk back to officers.

Sgt. Rich O’Neill, president of the Seattle Police Officers’ Guild (SPOG), said Tuesday that Faust’s suspension has been appealed to a three-member Disciplinary Review Board.

Though Faust’s chain of command — his sergeant, lieutenant and captain — all found Faust’s conduct fell within department policy, O’Neill said, it was the OPA that decided to sustain the allegation regarding use of force.

“The investigation was very flawed,” he said. “The analysis done on it did not equate to a sustained finding,” especially given Etherly’s actions.

O’Neill said the Department of Justice’s settlement with the city undoubtedly played a role in the decision to discipline Faust.

“Everything is related to DOJ,” he said. “It’s just the reality of where we are right now, especially if it has force connected to it.”

Faust’s appeal could be heard in six to eight months, when a state arbitrator is free to hear it, O’Neill said. But SPOG is meeting with city officials and a mediator later this month to try to reach a settlement on 18 to 20 pending appeals and grievances filed by the union, so Faust’s disciplinary appeal could be resolved as part of that process, he said.

Faust also called Etherly an “(expletive) idiot” during the incident, but misconduct findings related to the profanity were lifted and changed to training referrals at the urging of Assistant Chief Nick Metz.

Etherly agreed to a “dispositional continuance” in March for hitting the bicyclist, who was not seriously injured, and leaving the scene.

Seattle Times staff reporter Sara Jean Green and news researcher Miyoko Wolf contributed to this story.

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

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