Tacoma fights release of police interviews from Ellis probe. Here’s how a judge ruled

A Pierce County judge ruled Friday the City of Tacoma must release statements from 14 police officers interviewed during an internal investigation into the death of Manuel Ellis in March 2020.

Those statements will be handed over to prosecutors from the state Attorney General’s Office as a part of the criminal cases against three other officers charged in Ellis’ death – Christopher Burbank, Matthew Collins and Timothy Rankine.

The 14 officers will have 25 days to determine whether any statements they gave could be incriminating if prosecutors later decide to file charges against them in connection to the killing of Ellis. Thirteen of those officers witnessed Ellis’ death and one was in charge of police equipment.

The hearing Friday in Pierce County Superior Court was spurred by a late March subpoena from the Attorney General’s Office for the Tacoma Police Department’s entire internal investigation. The department refused to release the documents, and prosecutors told the city in a February letter that they planned to seek a subpoena.

The city filed a motion last week to block the release of the records, arguing it would undermine cooperation in future internal police investigations. Burbank’s attorney also filed court papers to join the city’s motion.

State prosecutors countered that setting this precedent would allow the city to conduct internal investigations and make public statements exonerating government officials without disclosing the underlying evidence.

Investigations into Ellis’ death

Ellis, a 33-year-old Black man, died of oxygen deprivation in March 2020 while being restrained by police after a minutes-long struggle that began as he walked home from a convenience store. Video captured him telling officers, “I can’t breathe, sir, I can’t breathe,” shortly before he lost consciousness.

Burbank and Collins tackled and struck Ellis multiple times, used a neck restraint and used a Taser on him three times, “all without justification for these uses of force,” charging papers say.

The Attorney General charged Burbank and Collins with second-degree murder and first-degree manslaughter in May 2021 after the Pierce County Prosecuting Attorney’s Office withdrew from the case. Rankine faces a first-degree manslaughter charge. All three have pleaded not guilty.

Tacoma police launched an internal investigation into Ellis’ killing after the charges were announced. In December, then-interim Police Chief Mike Ake said the investigation exonerated officers Masyih Ford and Armando Farinas, who helped restrain Ellis.

The city sent more than 900 pages from the internal investigation to the state in May but entirely redacted the officer interviews, according to court filings. The statements are also redacted in a public copy of the case file.

The internal investigations of Burbank, Collins and Rankine are ongoing, according to attorneys for the city.

Tacoma police spokesperson Wendy Haddow told The News Tribune she did not know why the investigations remained open as of Friday.

Prosecutors wrote in court documents that both Ford and Farinas refused voluntary interviews, as well as officer Sgt. Jeffrey Smith. Smith is a department quartermaster who handles police equipment and was not at the scene the day Ellis was killed.

After an extensive back and forth over applicable legal precedent this spring, the attorneys for the city and state decided to bring the issue to the courts.

Garrity and the Fifth Amendment

The city argued in court filings that it is prohibited from releasing all 17 officers’ statements under the 1967 U.S. Supreme Court decision in Garrity v. New Jersey.

In that case, police officers were ordered to sit for internal interviews regarding alleged misconduct and told they would be fired if they asserted their Fifth Amendment rights not to make incriminating statements. At the same time, the officers were told their statements could be used against them in subsequent criminal proceedings.

After the officers were convicted using those interviews as evidence, the Supreme Court ruled the officer’s statements were coerced in violation of their civil rights. The state Supreme Court recognized the Garrity decision in a similar 1972 case involving Seattle police officers.

As for the Tacoma officers, all 17 were ordered to cooperate with the department’s internal investigation or else face discipline up to termination but signed agreements that their statements wouldn’t be used as evidence in criminal proceedings.

“If the State is permitted to circumnavigate Garrity and the Fifth Amendment in this way in this case, it will likely have a chilling effect on all law enforcement officers’ cooperation with all subsequent IA investigations statewide,” deputy city attorney Barret Schulze warned in his motion to block the state’s subpoena.

The state argued the Garrity decision doesn’t apply to the Tacoma officers because the prosecutors are only seeking interviews from witness officers who aren’t being prosecuted. Prosecutors also say Garrity does not prohibit the disclosure of forced officer statements, just their use as evidence against the officer who provided it.

The subpoena shouldn’t be quashed “just because the city misstated the law to these officers,” said special assistant attorney general Patty Eakes.

The witness officers’ statements could help exonerate the officers accused of killing Ellis, prosecutors wrote in court documents. Prosecutors are required to provide any exculpatory evidence to defense attorneys.

“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,” prosecutors wrote in court documents.

Attorneys representing the charged officers were present in court Friday but did not make any statements. The officers were not required to appear and remain on paid administrative outside jail since posting bail.

Pierce County Superior Court Judge Bryan Chushcoff offered a compromise in his ruling by giving the witness officers the opportunity to redact incriminating statements before prosecutors can evaluate them as evidence. Chushcoff will review the redactions to determine if they are justified.

“While the city has an important interest here, the state’s interest is more important given the circumstances,” said Chushcoff, acknowledging the internal affairs investigation and criminal prosecutions.

While making his ruling, Chushcoff noted the so-called blue wall of silence where police officers place department “solidarity above all else” and do not speak out against one another.

Experts have pointed to the importance of testimony from Minneapolis police officers in the conviction of Derek Chauvin for the murder of George Floyd. The deaths of Floyd and Ellis, which occurred two months prior, have drawn comparisons due to both men complaining they couldn’t breathe as officers knelt on their necks.

Burbank, Collins and Rankine are scheduled to face a jury in January.