City to pay jaywalker $15,000 in civil-rights suit against Seattle

Seattle Times – by Mike Carter

The city will pay $15,000 to settle a civil-rights lawsuit that alleged one of the Seattle Police Department’s most decorated officers — the man who fatally shot cop-killer Maurice Clemmons — illegally searched a seven-time felon during an expletive-laced jaywalking incident in 2009.

Officer Benjamin Kelly found a cheap .22-caliber handgun tucked in Charles Shateek Smith’s coat that rainy January night. Under other circumstances, it would have been enough to send Smith to federal prison for at least 15 years as an armed career criminal and earn Kelly kudos for a good arrest.  

But three federal judges have independently found that Kelly had no right to arrest or search Smith for merely jaywalking. One judge threw out a criminal case, and a magistrate judge and federal judge each made recommendations and rulings against Kelly in a subsequent civil-rights lawsuit that Smith filed from prison.

In a ruling last month in the civil case, U.S. District Judge Richard Jones went out of his way to excoriate Kelly for his treatment of Smith and reserved a blistering section of his order for what he called “Officer Kelly’s Lawful-but-Reprehensible Conduct.”

The judge in the criminal case called the incident an “expletive-laden outburst” caught on the audio of the dash-camera in Kelly’s patrol car.

The dash-cam recorded Smith crossing a street with a group of people as Kelly pulls to a stop. Within three seconds of exiting his patrol car, after Smith did not immediately respond to an order to “come here,” Kelly is heard launching into a tirade of profanity-laden commands before he grabs Smith and puts him across the patrol car’s hood.

“What Mr. Smith was doing, apparently, was violating Officer Kelly’s personal rule against not responding in three seconds or fewer to police commands,” Judge Jones wrote. “What Officer Kelly was doing was engendering disrespect for law enforcement and, by extension, the criminal justice system.”

Jones said Kelly’s conduct “promotes disrespect and disdain for every police officer, even those who treat suspects with respect, integrity and professionalism.”

Jones found that Kelly had violated Smith’s rights and set the case for trial to determine damages. The city settled the case not long afterward.

Interim Police Chief Jim Pugel defended Kelly, calling him a “well-regarded … good cop,” and said that the litigation over the arrest demonstrates the difficulty of the job.

“What you end up having is a minute and 40 seconds” — the time that passed from when Kelly got out of his car to the discovery of the gun — “that’s been analyzed for four years,” the chief said.

While Pugel said he has a “profound respect” for Jones and U.S. District Judge John Coughenour, who dismissed the criminal case in 2009, he wonders whether Kelly’s conduct didn’t influence their rulings.

As for the profanity, Pugel said Kelly “shouldn’t have used it,” and that officers have been better trained in “how we deal with people.”

The U.S. Department of Justice, following an investigation which began the year after Smith was arrested, concluded in December 2011 that Seattle police routinely use too much force during arrests and that there was disturbing, but inconclusive, evidence of biased policing. It found that many of the incidents that led to an officer using excessive force were minor offenses, such as interference, open-container violations or jaywalking.

Smith was among a group of at least seven people who jaywalked across Rainier Avenue South near South Henderson Street to the bus stop on Jan. 30, 2009. The group can be seen silhouetted in the headlights of oncoming traffic on Kelly’s dash camera.

Kelly said Smith stood out as being larger than the others, and was moving more slowly, according to court documents.

Kelly pulled across the street, parked next to the curb and got quickly out of his car. Initially, the audio is unavailable, then you can hear Kelly say, “Come here.” According to court documents, at most three seconds pass before Kelly starts swearing.

Kelly argued that Smith had “stared down” one car and intentionally blocked traffic.

The three judges all concluded the video showed otherwise, although Coughenour, in the criminal case, noted that Smith’s “leisurely pace also demonstrated a frustrating lack of respect for the value of others’ time.”

Jones, in his ruling last month, said that he had ruled previously that “Officer Kelly could not arrest Mr. Smith for the non-crime of jaywalking, the court rules today that he could not arrest him for the non-crime of jaywalking while making eye contact with a driver in traffic.”

He concluded that the arrest and search violated Smith’s protections against illegal search and seizure. However, he ruled that the violation lasted only from the time Smith was stopped until Kelly found a nine-shot .22-caliber pistol in his pocket.

It has been a costly couple of sweeps of the second hand for the city.

As a result of the bad arrest, the gun was thrown out as evidence in a federal criminal prosecution that had alleged Smith was an armed career criminal. Without it, the judge dismissed the indictment and Smith, who had been held for eight months by that point, went free in August 2009.

Six months later, in February 2010, Smith broke into the apartment of the mother of his son and beat and choked her while her young children locked themselves in a car for safety. Smith was convicted of burglary and assault and is currently at Stafford Creek Correctional Facility, where he is scheduled for release in 2020.

The settlement places $10,000 into a trust for Smith. His pro-bono attorneys, the Seattle firm of Williams, Kastner & Gibbs, will receive $5,000.

The police department was represented by the Seattle City Attorney’s Office.

About 11 months after he arrested Smith, Kelly was in his patrol car in a South Seattle neighborhood when he encountered Clemmons, who two days earlier had shot and killed four Lakewood police officers in a coffee-shop ambush.

The 42-year-old Kelly confronted Clemmons and shot him when he refused to show his hands.

Kelly was named the Seattle Police Officer of the Year, received the department’s Medal of Valor and was honored in Washington, D.C., by the National Law Enforcement Officers Memorial Fund.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com

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