A mediation hearing aimed at averting a costly lawsuit against the King County Sheriff's Office and the Washington Department of Corrections failed to produce a settlement, according to attorneys who participated. The case involves a 2012 incident where 28-year-old Dustin Theoharis was shot 16 times while in bed. Theoharis had not committed a crime--police entered his room to search for weapons after arresting someone else at the Auburn home.
"Unfortunately, no settlement was reached," said Theoharis's attorneys, Erik Heipt and Ed Budge of Seattle, following a lengthy mediation Monday. "Although Dustin had sincerely hoped to avoid the need to file a lawsuit, he may be left with no choice." they said in a written statement.
The Feb. 11, 2012, incident is currently being reviewed by an outside investigator. But official determinations that the officers involved acted appropriately is posing a test for King County's newly elected sheriff and his promise to reform the department's use of force procedures and to increase accountability across the ranks.
It started when team of sheriff's deputies and a Washington Department of Corrections officer entered an Auburn house to arrest a convicted felon who had violated the terms of his parole.
After the team arrested the man they were after, two officers proceeded to search the rest of the home for firearms. They were told that another man -- Dustin Theoharis -- was also in the house in the room he rented.
The officers -- DOC's Kris Rongen and Deputy Aaron Thompson -- fired nearly 20 times after entering Theoharis' room, hitting him 16 times. Miraculously, he survived, but was left with a shattered jaw and shoulder, a fractured spin, and damage to his limbs and organs.
The officers said they fired because they believed Theoharis was reaching for a firearm.
"He looked back and forth at Kris and I and Kris asked him if he had any weapons. And he said yes," Thompson said in a recorded statement describing the shooting.
"Both of us were shouting at him, 'Put your hands up! Put your hands up! Put your hands up!'" Thompson continued. "And he stopped and looked at us and then he jammed his hand like he was reaching. I thought he was probably reaching between the mattress and box spring to get something and that's when we started shooting."
Theoharis did not have any firearms. He may have been reaching for a flashlight, investigators later determined.
Then-Sheriff Steve Strachan defended the shooting. "He [Theoharis] made reference to having three guns, and the deputy and the officer felt threatened."
The Department of Corrections found the shooting was in compliance, and a King County firearms review board ruled it justified.
But the KING 5 Investigators reviewed thousands of pages of documents from the two departments' investigations of the shooting that reveal many problems with how the operation was handled.
For example, it was unclear who was in charge at the scene and whether the officers properly announced themselves. Despite being told that Theoharis was in his bedroom, the team failed to come up with a tactical plan for safely entering.
Lawyers representing Theoharis said the officers lacked authority to enter his room.
King County's new sheriff, John Urquhart, told KING 5 there are lingering questions about the shooting.
"Did they do enough before they entered the room to find out who was there, to find out if it was a 3rd party residence or not, to look at the history of this particular individual?" he said.
But Urquhart made a decision to clear Deputy Thompson's actions, despite an Internal Affairs recommendation that Thompson face "sustained violations" for his use of authority and performance standards.
"The supervisory situation there, the other officers who were at the scene, they skated on this whole thing. Aaron Thompson was made a scapegoat. And that's not right and that's not fair, and that's why I overturned that," Urquhart said.
Urquhart also said he has ordered additional training for deputies and is revamping department policies, including how shootings are investigated.
Charles Gaither, director of King County’s Office of Law Enforcement Oversight, determined that the case needed additional review to assess how well the Sheriff’s Office conducted its own internal investigation into the shooting and to address any deficiencies.
Gaither settled on Merrick Bobb, the same man appointed by a judge to monitor reforms in the Seattle Police Department. According to a contract signed in November by King County Council Chair Larry Gossett, Bobb is being paid nearly $25,000 for his review and related expenses. Bobb is expected to present the report to the full council in May.
Theoharis' Seattle attorneys, Erik Heipt and Ed Budge, declined to be interviewed for KING 5's story but provided a statement saying “the law enforcement officers had no right or authority to enter Dustin’s room and the shooting was totally unjustified.”
Deputy Thompson and Officer Rongen also declined a request to appear on camera.