The City of Tacoma is fighting to keep records from a police department internal affairs investigation out of the hands of prosecutors as three officers await trial for murder and manslaughter in the death of Manuel Ellis.
The records include statements from other Tacoma police officers made to internal investigators in a probe that will determine whether the charged officers — who are still on the payroll — will keep their jobs.
Prosecutors with the state attorney general’s office asked for those records in a February subpoena after they learned of the interviews. They say they should have access to them because they are interviews with officers who have not been charged with any crimes.
But, last week, the city joined a request by one of the officers, Christopher Burbank, asking a Pierce County Superior Court judge to block the release of the statements. A hearing is scheduled for Friday.
Tacoma officers Matthew Collins, 38, and Christopher “Shane” Burbank, 35, are charged with second-degree murder and first-degree manslaughter, and Timothy Rankine, 32, is charged with first-degree manslaughter in Ellis’ death on March 3, 2020. Ellis, 33, was tased, choked, masked with a nylon hood and hogtied while repeatedly saying he couldn’t breathe before dying from lack of oxygen. The officers have pleaded not guilty.
All three of them, along with 14 other officers, were interviewed by Tacoma Police Department’s Internal Affairs division. The order says the officers provided compelled interviews in part as an attempt to keep their jobs.
The City of Tacoma produced some of the records to the Attorney General's office, according to court documents. But prosecutors say all the transcripts of officer statements were fully redacted except for a signed page for each officer indicating that their statements were compelled interviews.
The city cited the so-called Garrity decision in withholding the information. That decision says compelled statements from police officers can’t be used against them in any criminal proceedings. The city accused the attorney general of taking advantage of the city’s efforts to conduct an internal investigation “to the disadvantage of the officers involved,” according to the order.
“The State is attempting to strip these officers of their Fifth Amendment rights in the manner that was forbidden by Garrity,” it states.
A spokesperson for Tacoma said in an email Thursday that the city can’t comment on pending litigation.
In a strongly worded response, attorneys for the state argued that is an “extreme position” to take, since the witness statements sought by the state are coming from officers who haven’t been charged with any crimes.
“Every part of this is wrong,” the attorney general’s filing reads, stating that it “seeks to extend Garrity far past its holding and into a place it has never gone: a blanket privilege against a city’s production of any officer’s internal interview statements in anyone’s subsequent criminal proceedings.”
The state also wrote that the city can’t invoke Fifth Amendment rights on behalf of its officers and ruling in favor of this order would set a “dangerous precedent.”
“Police departments would be able to effectively shield officer interview statements from any criminal discovery, so long as the officer signs a paper acknowledging a mere possibility of disciplinary action,” the response reads. “While the City may believe maintaining this veil of secrecy may promote its own institutional well-being, it is antithetical to the pursuit of truth and justice that lies at the heart of Washington’s criminal justice system.”
Enoka Herat, an attorney with the ACLU, told KNKX Public Radio that it’s problematic to interpret Garrity rules so broadly, shielding officers from accountability.
“There are protections for officers, there’s protections for anyone accused of crimes,” she said. “But this is really just using a protection as a complete shield against investigation or examination or transparency or accountability. And that’s incredibly problematic.”
Herat says it’s another example of a pattern that is prevalent in policing: law enforcement creating obstacles that interfere with finding out the truth in the face of serious allegations of misconduct.
“It does a disservice to everyone. To the profession of policing, to the public at large, to community trust of law enforcement,” Herat said.
Although the internal investigation is ongoing, at least part of it concluded late last year. Two other Tacoma officers who helped restrain Ellis the night he died were cleared of any wrongdoing and returned to work.
At the time, City Manager Elizabeth Pauli told reporters that a decision on whether to fire the charged officers could come as early as the beginning of this year, after the new chief took over. But in a recent email to KNKX Public Radio, a department spokesperson did not say how long it will be before a decision is reached, only that it’s “still in the investigation stage.”
