Officer cleared after pepper-spraying child at Seattle protest because the kid wasn’t his target

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SEATTLE, WA — Investigators with Seattle’s Office of Police Accountability say officers did not intentionally target a young child whose face got pepper sprayed during a protest.

Video of the 7-year-old boy crying, with milk running down his face to lessen the effects of the spray, went viral after the May 30 protest and led to 13,000 complaints filed with the Office of Police Accountability (OPA).

Some observers complained the pepper spraying was a form of child abuse. However, others suggested the child should not have even been at the protest due to its unpredictable and potentially unsafe environment.

 

The video provided by OPA is a compilation of bystander and Seattle Police Department body-worn video for the child pepper spray case (2020OPA-0322). OPA’s investigation determined that the child was not intentionally targeted with pepper spray.

In a 10-page report, OPA confirmed that the intended target, a female identified as Subject #1, “began pushing into the line” and then ducked when the officer, named employee (NE #1), attempted to spray her directly.

The father, identified as Mando Avery in media reports, and his small son were standing directly behind the intended target and were not seen from the officer’s vantage point, according to the report:

“As a threshold matter, the BWV (body-worn video) clearly established that, contrary to the popular narrative surrounding this case, the Child was not individually targeted with pepper spray by an SPD officer.

“The BWV also conclusively disproved some of the assertions attributed to the Father by The Independent and other media sources, including showing that he was not praying in the more than 30 minutes prior to the incident and that the force did not come out of ‘nowhere.’

“Instead, what the BWV showed was that, at the time Subject #1 began pushing into the line, the Father quickly moved from his position away from the disturbance towards her so that he was situated immediately behind her with the Child to his front right side facing the police line.

“NE#1 pepper sprayed directly at Subject #1 and, when he did so, she ducked and turned around. It appears that, at this point, a quantity of pepper spray affected the Father and the Child.

“When NE#1 pepper sprayed Subject #1, she was in his immediate vicinity and neither the Father nor the Child could be seen from his vantage point. NE#1 denied seeing them and, based on a review of the video, his account is supported by the evidence.

“The Child simply was not visible on NE#1’s BWV. Moreover, OPA’s review indicated that, at the time of the force, the Child was not visible on the BWV of any of the officers, except for (witness officer) WO#5 who was the further away and had the clearest perspective of what occurred.

“The video indicated that NE#1’s burst of pepper spray at Subject #1 was targeted directly towards her while she actively pushed WO#3 and appeared to attempt to breach the line.

“In that respect, it was an appropriate usage of this less-lethal tool. Notably, this was not a case in which NE#1 misted pepper spray across an entire crowd or indiscriminately sprayed a group of people.

“If he had done so, he would have borne responsibility for innocent bystanders that were affected and OPA would have found his actions contrary to policy.

“Here, however, NE#1 used a directed application purposed to eliminate unlawful behavior. This was consistent not just with the overall use of force policy, but also with the requirements of SPD Policy 8.300-POL-5, which specifically governs the use of pepper spray.”

As part of its initial investigation into this case, OPA indicated in its report that it attempted to identify the father and boy in order to interview them concerning what occurred. This included making public requests for information and trying to reach out to the family via social media.

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The boy’s uncle contacted OPA and initially indicated a willingness to connect OPA with the family, but shortly thereafter, the family retained legal counsel and asked that all future contacts go through their legal advisor:

“OPA complied with this request, but the family’s counsel did not respond to OPA or agree to allow the Father and Child to sit for interviews.

“The Father did, however, make statements to the media. He was quoted by The Independent as recalling that: ‘he had just finished praying with members of their church as part of a peaceful anti-racism protest when a police officer fired mace at the group which hit his son in the face.’

“The Independent reported the Father’s statement that the pepper spraying ‘came out of nowhere.’ The Father confirmed to The Independent his belief that officers purposefully pepper sprayed the Child, stating: ‘I would say that [officers] were targeting my boy.’

“The Father asserted that, in the aftermath of the pepper spraying no officers or medical personnel attempted to provide the Child with assistance. He told The Independent: ‘No officer, who’s paid to protect, chose to stand up, break the ranks, [and] go help this child.’”

How peaceful was this protest?

According to OPA’s report, body-worn video “showed that, for approximately 40 minutes prior to the pepper spraying, various demonstrators interacted with the officers, some intermittently calling the officers “terrorists” and “racists” and using profanity towards them.” Others said, “I hope you die.”

At around the 43-minute mark of witness officer #5’s video, the father is seen walking directly behind the line of demonstrators facing the officers and heard using profanity and threatening to physically beat various officers with his son by his side and in front of him. The father even suggests that the police would shoot his son “when he grew up,” according to OPA’s report:

“‘Look at them, these scary motherfuckers, not one of them is over 200 pounds soaking wet.’ After a minute, he turned around and walked away. The Father continued to address officers from several feet away, calling them ‘scary motherfuckers’ and ‘pussy ass motherfuckers.’

“He said to them: ‘you’d get your ass beat out here one on one.’ He noted that this was why they had so many officers there. At this time, the Child was standing to the Father’s right and was behind other individuals.

“For around the next 20 minutes, the Father and others spoke to and about the officers, sometimes identifying them by name. At one point, the Father referenced and pointed to the Child, noting that officers would shoot him when he grew up.

“At another point, shortly before the disturbance occurred, he said, while pointing at different officers in turn: ‘I’ll beat your ass, I’ll beat your ass, I’ll beat your ass….’ At this time, the Father appeared to be holding the Child’s left hand with his right hand.

“The Child’s location then shifted, so that he was standing to the front left of the Father. The Father turned from side to side, keeping the Child in front of him with his arms on the Child’s shoulders.”

A disturbance then begins taking place to witness officer #5’s right side, and the female (Subject #1) was seen walking directly in front of officers with her arms outstretched:

“She then pushed into officers immediately next to WO#5. The Father was situated several feet back and to the left, but he also quickly moved towards the crowd that was gathering to the right with the Child still in front of him.

“He moved towards the back of Subject #1 and was immediately behind her at the time the pepper spray was deployed. He was holding the Child to his right side with his arm around the Child’s shoulders.

“Subject #1 turned towards the Father and he grabbed her with his left arm and pulled her back. He again turned to face the officers and wiped his face with his left arm. He turned around and looked down at the Child, who was by his right side. He continued to walk away from the line.

“A bicyclist with a red top – referred to here as Community Member #1 (CM#1) – rode up to them and appeared to begin administering aid to the Child. The Child was in obvious discomfort and could be heard yelling.

“An unidentified officer stepped forward and called out for the Child to be brought over for medical assistance. Demonstrators then began accusing that officer of pepper spraying the Child. The Father also approached the officers and yelled at them regarding the pepper spraying of the Child.”

A person identified as community member (CM #1) said during an interview with OPA that he had training as a medic and assisted the sprayed child by pouring milk into the boy’s eyes:

“CM#1 said that the Father wiped the Child’s eyes, which appeared to cause the recontamination of the Child. CM#1 then assisted the Father in getting cleaned first. He said that the Father then ran towards the police and he and others tried to pull him back. CM#1 said that he continued to decontaminate the Child and that, when this was accomplished, the Father and the Child walked away.”

Another community member identified as CM #3 initially reported that the child was “maliciously” sprayed. When OPA requested this person’s consent to an interview, CM #3 declined, citing “perceived safety concerns.” When OPA offered to list him as an anonymous witness to protect his identity, CM #3 again declined to be interviewed.

OPA acknowledged the boy was an innocent victim:

“The picture of the Child standing in the middle of the street, crying, with milk running down his face is an unforgettable image from these demonstrations. It shows an innocent child who was a victim regardless of the circumstances.

“That the Child suffered this trauma is something that OPA is extremely sorry for and that no decision in an administrative investigation can ever remedy. Notably, NE#1 expressed similar regret at his OPA interview.

“This is one of the hardest cases that I, as the OPA Director, have had to consider during my nearly three years in office. Certainly, there has never been a case that received as many complaints.

“On one hand, the Child suffered a clear wrong when he was affected with the pepper spray utilized by NE#1.

“On the other hand, NE#1 used appropriate force to prevent Subject #1 from breaching the line and could not have known that Subject #1 was going to duck and that the Father was going to bring himself and the Child directly behind her, putting them in the immediate vicinity of the disturbance.

“This is not said to blame the Father, as OPA does not believe that any parent would knowingly place their child in harm’s way. These are simply incontrovertible facts.”

According to KIRO 7, the Avery family, whose son was sprayed, released the following statement:

“We are deeply disappointed, but not surprised, by the result reached by the OPA. Today, they have confirmed that it is the Seattle Police Department’s position that the use of pepper spray in an intentional and reckless manner that it would strike an innocent child exercising their First Amendment rights is ‘within policy.’

“We understand the OPA has said it is ‘sorry’ for these actions. But ‘sorry’ and ‘regret’ is not sufficient. We demand change. OPA did not address whether the officers could have taken steps to prevent this from happening and, even further, no police officers attempted to render aid to the child making any apology tough to accept.

“Moreover, the OPA reached its conclusions by analysis and discussion of body camera footage—tapes that were not provided to the family or their legal counsel before today.

“The OPA’s also refuses to identify the officers who used force in this incident. All of this undermines the claims of objectivity and transparency that the City purports to value.

“We continue to demand change, and this confirms that it is still deeply needed because the City of Seattle continues to remain indifferent to the suffering its police, and other City officials, have caused to black and indigenous people of color for decades, including the Avery family.”

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