By Darren Smith, Weekend Contributor

After a internal affairs investigation of several alleged actions of a Seattle Police Officer, Chief Kathleen O’Toole terminated the employment of Officer Cynthia Whitlatch following the detention and arrest of a citizens for Obstructing a Law Enforcement officer stemming from a claim, later ruled to be false, that the citizen swung a golf club at her. The termination, according to SPD, did not rely solely on this incident but was resulting from similar incidents involving citizen contacts and allegations of racially inappropriate statements during the internal affairs investigation.

The incident should serve as a reminder to those in similar positions of Ms. Whitlatch of the importance of proper discretion and of accepting one’s faults and not blaming everyone else for mistakes. Nevertheless the incident elicited an apology to the citizenry and the accused person for an incident that should never have occurred.

 

Reviewing Chief O’Toole’s letter of termination, it reads that the department found several sustained accusations against Officer Whitlatch showing lack of proper discretion, complaints of abuse, and statements made by her that were racially biased in nature. There were also reports of her utilizing social media to make racially charged comments but departmental sanctions were not levied against her due to the fact that at the time of the comments, SPD did not have a policy relating to social media statements made by officers. This has since been codified into department policy.

In short the incident with the golf club involved Officer Whitlatch claiming that 69 year old William Wingate swung a golf club at her as she drove past him at 11th Avenue and East Pike Street. She then drove around and met Mr. Wingate at another intersection and instigated what she claimed to be a justified Terry Stop. Upon exiting her patrol car she contacted Wingate and ordered him to put down a golf club he was carrying. He expressed dismay and questioned her as to why she wanted him to do this. Mr. Wingate did not relinquish control of the golf club, demanding that someone else come by and handle the incident. He did do this upon the arrival of other officers. At no time did Mr. Wingate appear to threaten Officer Whitlatch during the recording of the in-car video of the incident. Specifics can be found on the Disciplinary Action Report’s link below.

Here is a in-car camera video provided by SPD via YouTube:

The department policy citations were:

• Standards & Duties: Exercise of Discretion 5.001 (Vll) (A) issued 811512012
• Use of Force Core Principles: When Time, Circumstances, and Safety Permit, Officers
  Will Take Steps to Gain Compliance and De-Escalate Gonflict without Using Physical Force 8.000 (2) Issued 011120114
• Bias-Free Policing – Employees Will Not Engage in Bias-Based Policing 5.140 (2) issued 1/30/2014

From the Disciplinary Action Report, I will provide analysis of a few excerpts:

Specification:

This discipline is based on your interaction with an individual on July 9,2014 which began while you were on duty, driving a patrol car near Cal Anderson Park. You initiated a Terry stop with the individual based on your stated observation that, as you were driving near a stop sign, you saw a blur of motion out of the corner of your eye and heard a sound you interpreted as metal on metal, and then (as you were in your police vehicle, driving away) you saw a look on his face that you described as “angry, you know, furrowed brow.” You drove your car around the block. Although you observed no additional conduct that might be troublesome, you decided to approach and detain the individual pursuant to Terry. In contrast to your OPA and Loudermill statements, the police report you assisted with incorrectly states that you observed the man try to hit your car with a golf club, which sheds light on why your chain of command’s initial review of the incident did not discoverfhe depth of the misconduct discovered through the full OPA review.

In your Loudermill meeting, you indicated that a Terry stop was justified because the individual may have
assaulted a police officer (you) by swinging his golf club in the direction of your vehicle. ‘When you initiated the stop, the 69-year-old man was holding the golf club against the ground. He showed no recognition of you, initially saying “huh?” when you spoke to him, noting that he could not hear you, and asking “what’s going on” and “this is my golf club” when you demanded that he to drop the club. You raised your voice and repeatedly ordered him to drop his golf club, told him the golf club was a weapon, and accused him of swinging the golf club at you, which he adamantly denied. He repeatedly asked you to call someone else, noted that he’d been using the golf club for twenty years, and at no point acted in an aggressive or threatening manner towards you or anyone else.

Your behavior towards him during the stop was inappropriately aggressive and unnecessarily escalated the
interaction. There were numerous opportunities to assess different tactics and take a softer approach to resolve the incident. This is particularly true once you had observed the individual’s lack of threatening demeanor. Despite his non-threatening behavior, you repeatedly chose confrontational options, continuing to make accusations regarding what you claimed to have seen him do, threatening him with arrest, and holding your nightstick in your hand, further escalating the interaction.

You never asked the individual any questions during the Terry stop to determine if he had, in fact, swung the golf club towards you and/or into a stop sign. Despite that, and despite never actually seeing him swing a golf club toward your car or hitting a stop sign, you actively participated in moving forward with an arrest for obstruction and even called the prosecutor days later to push for prosecution of the individual.

“You drove your car around the block. Although you observed no additional conduct that might be troublesome, you decided to approach and detain the individual pursuant to Terry.”

This is a key piece indicating when the incident began to deviate from what could be articulated as a reasonable contact with Mr. Wingate. In instigating what is referred to as a Terry stop it is based upon reasonable suspicion that a crime has occurred, will occur, or is occurring. During a Terry stop an officer may perform a cursory search for weapons and remove such items that are threatening to the officer against a standard measured by which a reasonable officer in the same circumstances and information available to the stopping officer would take such steps as necessary to protect their safety. The alternate contact that could be initiated is referred to as a Social Contact. A social contact is limited in scope. The officer may contact a person on a social basis but if there is no indication of Terry Conditions that arise after the stop an officer is prohibited from performing under the authority granted in Terry. In Washington, case law is such that if the citizen at any time wishes to leave the officer must permit them to do so. They might not even use language that can infer that the citizen must remain with the officer. A violation of this by the officer can make the stop unlawful.  Washington’s courts scrutinize social contacts when they are used as pre-texts for investigative detentions.

With our incident here, SPD argues that Officer Whitlatch articulated justifications for the Terry stop based upon very questionable elements. While it did not fully declare the stop unlawful, giving a wide amount of deference in my view, the parameters and restrictions levied upon Mr. Whitlock aggravated the situation unnecessarily.

Another problematic aspect of Officer Whitlatch’s approach to the situation is that she during her intradepartmental interview stated that she witnessed the citizen swing the golf club and implied he posed a threat to her, hence elevating the stop to Terry parameters. The department found that this was without merit and stated there was no evidence on behalf of Mr. Winlock’s behavior that constituted an actual safety risk to her. In fact, I would go one step further that in the video it is evident that no other citizens, as passers by, demonstrated worry or fear from his behavior or the possession of the golf club. In my view no actual facts garnering danger existed. From another point of view, Fish and Wildlife Officers routinely during certain times of the year make contact with citizens possessing firearms and while there are procedures for safety, they do not constantly react in a high incident fashion when approaching hunters.

“Despite that, and despite never actually seeing him swing a golf club toward your car or hitting a stop sign, you actively participated in moving forward with an arrest for obstruction and even called the prosecutor days later to push for prosecution of the individual.”

The calling of the prosecutor is an interesting aspect. This is a rare event for a line police officer to do. When it is performed it is used in cases where there might be a profound threat to a victim that might not otherwise be apparent to the prosecuting attorney, or very unusual circumstances. Another would be for the case where there might have been mandatory arrest policies, such as domestic violence laws, where there were mitigating circumstances or even for Brady issues the officer feels are pertinent for a just adjudication of the arrest. For an officer to call the prosecutor for an obstructing a law enforcement officer is questionable and in my opinion it was used to help make the case for Officer Whitlatch so that her probable cause would be unquestioned after perhaps realizing the incident might get her into trouble.

“Instead, you interpreted his refusal to immediately follow your commands as obstructive and were inflexible in your approach to obtain compliance. The unreasonableness of your actions is highlighted by their contrast with that of another officer, who arrived after you confronted the individual, spoke to him, and immediately obtained the golf club and compliance from the individual. Officers are required to treat members of the public considerately and respectfully, and not behave, as you did, in a confrontational and unreasonable fashion, out of compliance with Department policies on both exercise of discretion and de-escalation.”

This is the second reason why the incident got out of hand. Officer Whitlatch right off the bat became confrontational with this man. There are a number of individuals who will react the way this man did wherein the alternative speaking in a reasonable manner and explaining reasons can be enough to obtain compliance, especially in-so-far-as where the citizen does not realize he is being encouraged to be compliant. Of course, this approach is not always indicated for every situation, such as in dealing with an aggressive individual who cannot be reasoned with in this manner. But, there are no articulable aggravators in this situation.

Officers who routinely interact with others with aggressive approaches such as in this case will almost invariably have difficulty with the public which foster unfavorable views of the department by citizens and other, reasonable officers and their agencies. They also become in the grand scheme of things liabilities both in terms of torts and also in terms of safety to other officers, the public, and suspects themselves. With officers, having to back up officers who cause situations to get out of hand, where actual violence results, it risks their safety as well.

Further, your actions towards the individual violated Department Manual Section 5.140(2), which states that “Employees shall not make decisions or take actions that are influenced by bias, prejudice or discriminatory intent.” Your actions in this case were far from trained expectations and policies. Notably, the day before your confrontation with the individual, you received training on Biased Free Policing and Voluntary Contacts and Terry Stops, yet apparently did not utilize that contemporaneous training or what your years of experience should have taught you about acceptable behavior. Considerable circumstantial evidence indicates that these deviations and your approach to the civilian were motivated by bias. During your interviews with OPA, you indicated that your perception of the race, sex, and age of others influenced how you interacted with and reacted to events regarding this individual and, more generally, events in the workplace. You discussed your view that the individual’s age and sex contributed to his reaction towards you as a female officer, and stated that you would not be investigated were you not white. Without prompting, you described how you viewed the resolution of his charges as an example of racial bias because “guess who” – a black judge and black chief were not, in your view, supporting white officers. Even during your Loudermill hearing, you continued to blame minorities for your perceived mistreatment on account of your race (white). Your perceptions of race and other protected categories appear to be so deeply seated that they likely impacted the authoritarian manner in which you treated this man and your refusal to deviate from that approach towards an individual whose actions did not warrant such treatment.

This paragraph shows some very troubling issues facing the department with regard to Officer Whitlatch. Within days of this incident happening afterward, she received counseling and training on race-relations and understanding biases related to policing. It should be recognized by all persons, not just law enforcement officers, that we as human beings have particular biases built into our thinking. Some might be benign, others might be potentially controversial. It is not the mindset one has but rather the approach one takes with regard to biases that matters. If a person is not able to remove a bias that could lead to an unfavorable or unequal treatment against another an acceptable middle ground is to recognize a predisposition in thinking and be objective on how they treat others. However, if these controversial biases are so deeply ingrained and unquestioned in an individual, the citizen is going to perceive this bias and feel either threatened or uncomfortable. Law enforcement or others having authority should recognize that people in particular groups are very sensitive to government actions or treatment of their particular group and are very good at seeing this biased thinking among others. It really does behoove police officers having these biases to come to terms with their prejudices before they come out and lead to an incident. They also tend to come forth under stressful situations, and it seemed with Officer Whitlatch it had.

Chief O’Toole included her analysis and findings of fact in the last part of the Disciplinary Action Report:

“I was disappointed by your failure during your Loudermill hearing to take any responsibility, or show any understanding that your conduct at issue here was inappropriate. In particular, when I asked you what if anything you would do differently in retrospect, you stated that you would do nothing differently. Your inability to understand that the confrontational manner in which you handled a non-threatening situation undermines public confidence in the fairness of this Department and leaves me convinced that a similar interaction with a member of the public will occur again should I permit you to continue working as a police officer. This is reinforced by the fact that you have twice been previously disciplined and counseled for unprofessional conduct, and seem to have learned little from those corrective actions.

I was also troubled by your comments in the Loudermill about the race of a judge and deputy chief involved in expunging the civilian’s criminal record related to your arrest of him; you expressed a strong belief that these actions were taken because the judge and deputy chief are black, and that race drove the decision-making of a high ranking Department official and a long-serving Municipal Court Judge, not the legitimate factual and legal analysis by thoughtful and dedicated public servants. Such statements further indicate that your biased views prevent you from being able to honestly reflect on your own job performance and successfully receive constructive criticism of your policing techniques because you view the critiques as racially motivated.

While the violation of Section 5.140(2) is serious enough that, on its own, the allegation would warrant the recommended discipline, I gave serious consideration to a lengthy suspension and disciplinary transfer to a unit that does not interact with the public, as well as removal from the sergeant’s promotional registry. However, your inability to understand, even in hindsight, that your behavior was unnecessarily aggressive, an abuse of discretion, and negatively impacted the community’s confidence in this police service, offers me no pathway to confidence that your behavior will improve or change. Without this ability to learn from your mistakes, understand how you can improve and do better, and recognize your own errors, you are unable to effectively function as an officer.

In analyzing your culpability for a potential violation of Department Policy 6.220(l),I have also given careful consideration to the Constitutional principles underlying that policy. I believe that reasonable minds could have, in the totality of the circumstances, that the stop was lawful. I therefore conclude that this charge is “inconclusive” rather than “sustained.” In doing so, however, I rely on the fact that determination of lawful authority to stop is an objective standard, not a subjective standard. The fact that I conclude that we should not sustain a violation of the stops and detention policy does not mean that I support your use of your authority in this circumstance. This incident likely could have been resolved without a seizure of any level.

For the reasons summarized above, and while giving careful consideration to your full employment history as
well as the facts of this case, your employment is terminated.”

I believe it is possible that if Officer Whitlatch had actually demonstrated humility, asked for additional training, or took to heart some of the department’s recommendations and available counseling or reassignments she could have maintained employment with the department in some capacity, though it would be very unlikely she would return to patrol for a number of years. SPD has many positions that would be made available offering her equal pay and benefits that she might find to her acceptance. Instead to the disappointment of her chief, she instead chose to play the victim and refused to take responsibility for her actions.

When this type of behavior is exhibited, it puts her employer at best in a bind. Had they allowed her to remain on patrol despite her defiance, it is probably inevitable that a similar incident would have eventually arisen and had a tort resulted the department would be facing embarrassment, damages for failure to train or negative retention. On another note she had to understand police culture in that administrators have low tolerance for insolence and having to babysit problem employees and their drama. It causes trouble for the administration as well and then administrators personally. From line officers, the culture is that when another officer continually acts to blow situations out of proportion or being overly aggressive it creates the perception that the particular officer is a “loose cannon”, weak, or will eventually draw their backups into trouble with the department, a position nobody wants.

In a separate story, there were reports on the internet that Officer Whitlatch displayed high amounts of bias toward minorities using sweeping, unfavorable general conjectures on social media. It is clear from these aspects that she is going to have difficulty relating and working with these minorities because she has unreasonable biases against them. She certainly demonstrated that she does not have the will or perhaps the ability to come to terms with her convictions and as such her suitability to interact with the public in a fair manner would be questionable. She also needs to be realistic about voicing her opinions. If she truly believed that she was being disciplined for political reasons, she is not in a situation where proffering the race of the actors or the judges as being the reason for the actions against her.  She should recognize that she is not in a position to argue such belief. It will fall upon deaf ears, and will greatly damage her credibility as it did certainly here. There might be a time and a place for that, but as an officer of the law it is incumbent upon being a successful employee to assess situations and make decisions based upon the grand scheme of the environment. She exercised poor judgment in this respect and it certainly led to her being sacked. It is certainly indicative she did not command the wisdom to decide what was best for her and one has to question how this lack of proper decision making will negatively affect her suitability to be a patrol officer.

I do not believe that this one incident was the only one that resulted in her termination. Given that fact and reading into this there is a likelihood she will continue to be problematic in her approaches to the public. In my opinion her termination was necessary and reasonable.

Here is the full text of the Disciplinary Action Report. (PDF)

Later, Mr. Wingate filed a tort claim due to this incident. He sought relief for discrimination and violation of his due process rights for this and for other alleged violations occurring after the arrest and during his incarceration. The complaint alleges some also unsettling matters as well.

William F. Wingate v. City of Seattle, Seattle Police Department and Cynthia Whitlock

Seattle news medium “The Stranger” reported that the police officer’s union might be able to contest the termination of Officer Whitlock. They reported:

Ron Smith, the head of SPOG, says O’Toole “caved under the enormous political pressure and made this decision. The department has clearly violated the collective bargaining agreement section 3.6B, and as such an appeal will be filed if requested by Officer Whitlach.” Smith is referring to provisions in the SPOG contract that limit the amount of time the department can spend on an internal investigation.

The following link has information on the union’s position along with The Stranger’s editorials.

The Stranger: Seattle Police Union Says Contract Violation Prevents SPD From Firing Officer Cynthia Whitlatch

By Darren Smith

Sources:

KOMO News
The Stranger

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.