Why did the prosecutor not charge the cops for shooting Dustin Theoharis?

The news a few weeks back that Dustin Theoharis had settled his claim against the Department of Corrections (DOC) for $2.5 million put an end to his case. Previously, Theoharis settled his other claim against the King County Sheriff’s Office (KCSO) for $3million in 2013.

Short summary of the facts: A DOC cop, aided by a KCSO Detective, go to a house to serve a warrant on a dude who is skipping out on his felony probation. Warrant is served on the dude, but the cops want to make sure the dude doesn’t have any guns in the house (because he’s a felon). Cops go to another room, on a different floor of the house, and find Theoharis laying on a bed with heroin and other paraphernalia around him (he is friends with the dude). Cops ask if there are any guns in the house, and Theoharis says yes and reaches over (as if to show the cops where the gun was). Cops think Theoharis is reaching for the gun and the cops shoot him multiple times. Mr. Theoharis survives and sues the cops for numerous claims. No gun was found in the room, but there was in a locked gun safe adjacent to the room.

Mr. Theoharis civil claims have settled, and it appears the prosecutor will not file criminal charges against the two cops involved. If you’re curious, I obtained the KCSO settlement agreement and the prosecutor’s written reason for why charges were not brought (see page 5). The prosecutor’s reason for the decline hinged on the interpretation of two statutes:

-RCW 9A.16.040(1)(b) states the use of deadly force by a police officer is justified “when necessarily used by a peace officer . . . in the discharge of the legal duty.”

-The defense to that statute, RCW 9A.16.040(3), says “[a] public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable . . .”

The prosecutor felt both statutes prevented prosecution. Under RCW 9A.16.040(1)(b), the prosecutor believed it was obvious the police were acting in their official legal duty (serving a warrant). Moreover, given the situation, the prosecutor thought the cops’ actions were justified. And the prosecutor reasoned RCW 9A.16.040(3) provides a defense because you can’t prove the cops acted in malice. In reality, RCW 9A.16.040(3) makes it essentially impossible (according to KC Prosecutor Dan Satterberg) to ever charge a cop for shooting a person. A key reason the prosecutor came to their conclusion was that the cops lawyered up (remained silent) and so did Theoharis (on the advice of his attorney). It’s tough to prove a crime if the witnesses, and suspects, refuse to talk.

After the prosecutor initially declined the case, Theoharis’s claim against the DOC officer was litigated in court. The court declined to dismiss the case at the summary judgment stage. DOC then settled the claim. In the litigation process, more testimony came out from the cops. A few weeks ago, the prosecuting attorney acknowledged they reexamined the case in light of this new testimony, but still declined to pursue charges. I am still awaiting the specifics on the new statements the prosecutor considered, and will post those when I get them.

It is difficult to disprove the “malice” defense contained in RCW 9A.16.040(1)(b). Maybe the statute should be amended? What do you think? Taking into consideration the prosecutor’s charging and disposition manual, the statutes providing objective reasons to charge and not charge, and the statutes discussed above, would you have charged the cops with a crime?