You know how it is when you’ve been pulled over by the police and you get a little dry-mouthed and guilty-looking as you fumble for your license and registration?
Well, the Bainbridge Island Police Department has gone dry-mouthed too since islander Kim Koenig started complaining about police misconduct. No matter how the facts come out, the island’s finest have made her lawyer’s job a little easier, with some guilty-looking moves of their own.
I’ve spent a few hours at the Bainbridge Island police station reading the Puyallup Police Department’s report on its criminal investigation following Koenig’s allegations. The records reveal a remarkable lack of observational and memory skills by the police during the traffic stop that led to Koenig’s arrest. Worse, after Koenig formally complained that she was assaulted by Officer Steve Cain, the BIPD destroyed written documents detailing at least one prior, relevant complaint against him. And Acting Chief Mark Duncan has refused to confirm or deny the accuracy of another officer’s statement to the Puyallup investigator that Cain was disciplined for a substantiated incident of sexual misconduct in the early 1990’s.
Background: According to the records I reviewed, Kim Koenig was a passenger in a car driven by her husband, John Muenster, when it was pulled over by a Bainbridge police officer just after midnight on September 30, 2007. (I’m leaving out all officers’ names except that of Steve Cain, who has been named in newspaper accounts of the incident.)
The officer smelled alcohol in the car, and quizzed Muenster about how much he’d had to drink. Muenster said his wife was an attorney and he wanted to ask her a question. Koenig advised him not to answer any questions or take any tests.
She argued with the officer about his request that she stay in the car and didn’t comply with that request. The officer radioed for another police unit and Officer Steve Cain arrived shortly thereafter. While the first officer spoke to Muenster, Cain handcuffed Koenig and took her to his police vehicle.
She claims he repeatedly yanked her arms while she was handcuffed, then “dry-humped” her on the hood of his car, and strangled her until she involuntarily defecated. He claims she was highly intoxicated and because she wouldn’t cooperate by getting into the police vehicle, he pinned her to the vehicle with his hip while he radioed for more backup.
Ultimately, according to the Puyallup report, there were five officers on the scene, including one supervisor. There was no suggestion in the report that Koenig was menacing or aggressive at any time. She was arrested for resisting arrest and impeding an investigation and briefly detained at the Bainbridge Island jail, until her attorney arrived and gave her a ride home. Koenig claims that Cain lied about her actions at the traffic stop in order to cover his own misconduct. The Kitsap County Prosecutor declined to bring charges against her.
Muenster was never administered any tests for alcohol consumption and was given only a speeding ticket.
A BIPD officer went to Koenig’s home on September 30, 2007 (the morning after her arrest), to take a report on Koenig’s allegations that she’d been assaulted by Cain during the traffic stop. The Puyallup records show that Chief Matt Haney (who has since become acting City administrator, leaving Deputy Chief Mark Duncan as Acting Police Chief) removed himself from the investigation “in order to remain impartial when determining disciplinary action, if any.” Duncan was named as the investigation’s point man.
After receiving the Puyallup report, the Kitsap County Prosecutor determined that there was insufficient evidence to prosecute Officer Cain. On February 4, Koenig filed a notice of claim against the City for damages in the amount of $400,000.
There are a lot of disputed facts here.
But here are some of the relevant details contained in the public records:
Destruction of records: By letter dated February 25, 2008 in response to my public records request, Bainbridge City Attorney Paul McMurray informed me that in 2002, a complaint was filed against Officer Cain for “inaccurate reporting” for which he was exonerated. The letter said that records relating to that complaint were destroyed “on or about January 4, 2008 (along with all other internal investigation files predating 2004.)”
Koenig has alleged that Cain falsifed his report in her case to cover up his own misconduct.
The documents on the previous complaint, which the BIPD had retained for five years, were destroyed in January even though the department knew of Koenig’s potential claims involving Cain.
Duncan told me that that the records were destroyed in the ordinary course of business. He explained that the BIPD’s former records clerk didn’t follow any particular records retention schedule. When the boxes of records were removed from basement storage last year due to problems with mold, current employees began to destroy the records in accordance with the state’s specified schedule. Duncan said records on an unsubstantiated complaint need be retained for only three years and as a result, the 2002 complaint records were destroyed in January along with other outdated records.
Poor observation and recall by officer witnesses: The officers at the scene displayed a troubling lack of observation and memory about the incident.
Here’s what a part-time reserve officer had to say to the Puyallup investigator about his recollection after he arrived on the scene:
“Um, I am trying to think of it all in context of the order…Um she I never really heard anything or can’t remember what was said but it from what I remember from [name deleted] reaction was that she didn’t say much of anything…I can’t specifically say I remember seeing her being put into the back of the car. I remember thinking about that after and being like ‘Oh yeah that’s when he put her in the back of the car.’ But it’s hard to tell. I mean that, that night was such a jumble and I didn’t realize I’d have to remember any of it…I wouldn’t want to testify to that on the stand saying that I saw her, because I honestly I am 75% I saw him put her in the back of the car but now it’s all kind of a jumble.”
He did remember that Koenig struggled to get away from Cain as she was being escorted to Cain’s car and that Cain “hip checked” her to “help her gain control.” He couldn’t remember if the term “hip-check” was used that night or if that’s his own interpretation of what happened.
Most of the officers told the investigator they believed Koenig was intoxicated, because of her “slurry” speech, and emotional behavior. But when pressed by the investigator, some also second guessed their impressions. For instance one officer said Koenig’s watery eyes were evidence of intoxication, but then conceded that the look of her eyes could have been caused by her crying.
I was unable to find any statement by an officer (other than Cain) who admitted to witnessing what happened during the crucial period of time while Cain was at his car with Koenig.
One officer said they “disappear around the back of the car and I can’t see them anymore.”
The supervising officer recalled that Cain had said in a sharp voice, “Just walk with me,” when taking Koenig to the car, but added that he “didn’t really see it.”
Another officer, who couldn’t recall seeing Cain and Koenig at the car, told investigators, “Um, she at one point and I don’t remember when it was but she mentioned something about he was dry humping me and at that point I didn’t, didn’t respond um, just because she to me she appeared very intoxicated, she was defiant, she wasn’t doing what she was asked to do.”
When asked whether police receive training in observational techniques, Duncan answered, “Police officers are trained not to make things up.” Admitting to a lack of knowledge, he said, “often adds to a witness’s veracity.”
Previous misconduct: Another officer (for clarity I’ll refer to him as Officer Smith) told investigators the following about Cain–
“Right around 1990-91 time frame, I was a younger officer here and he was a acting supervisor and uh, he uh, had a sustained accusation of having sex with a suspect. And it caused some issues and complaints for while and some heartache. And, uh, I was involved because I had gone there to interview her on some issues. She had basically made herself naked in front of me and suggested that we could have sex to fix it. And I exited like a bunny rabbit (laughs) and came back and told acting Sergeant Cain about the incident to be called into the chief’s office about five weeks later and asked about it. Because that’s when she started making the accusations against him.”
Officer Smith said after Koenig accused Cain of assaulting her that night, he went to Cain’s vehicle to try to talk to her, but Koenig would not speak to him. He said the previous incident of misconduct “played into my mind when the issue came up and that’s why I tried to go back and talk to her both about any physical contact and the accusation to find out, to try and find out exactly what it was that he had done.”
In the library’s Bainbridge Review archives, I found several stories in the spring of 1991 about an unnamed Bainbridge police officer who was criminally investigated after a woman made allegations that he raped her “during a non-duty contact between the officer and herself, who are acquaintances.” The woman later decided she didn’t want to pursue the complaint and no criminal charges were filed. But “an internal investigation of the officer’s actions…disclosed that there had been some impropriety on the part of the officer,” according to one Review article. The officer was demoted and suspended without pay for 10 days.
Duncan said he doesn’t know anything about the Review reports or the incident recalled by Officer Smith, or whether they involved the same officer. He said he’s not aware of records in City personnel files about the incident described to the investigators by Officer Smith. Emphasizing the lack of existing written records about the 1991 complaint he added, “Memories are not always absolutely correct after 17 years.”
Because Officer Cain and his union filed suit to prevent disclosure, the City hasn’t released the records from the Mercer Island Police Department, which conducted an investigation as to whether Cain violated any BIPD rules or policies. Like the Puyallup investigation, Mercer Island found that Koenig’s claims were unsubstantiated.
But transparency and good government demand that the community know the details surrounding the Koenig claim because it raises broader concerns than just the behavior of a single officer during one traffic stop. It calls into question the credibility and procedures of the BIPD, the training of its officers and the behavior of its officials. Those are serious issues that the department hasn’t yet seriously addressed.
Since the City administrator–who might normally be able to provide leadership in this situation– is also the police chief, he cannot be effective here. It may be time for the City Council to review the case, perhaps with an eye to appointing some kind of oversight group. This incident and the department’s subsequent actions shouldn’t be allowed to taint all of the hardworking, ethical officers on the force.