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At the moment MPD Officer Alexander Alvarez decided to shoot Deon Kay on Sept. 2, 2020, he was justified in doing so, the Metropolitan Police Department’s internal investigation found. A team of independent auditors agreed with that assessment. But Alvarez’s “unnecessary” and reckless actions in the crucial moments leading up to his encounter with Kay, an 18-year-old resident of Southeast D.C., ultimately led to Kay’s death, the audit team determined in a report released today.
“[Alvarez] unnecessarily placed himself in a dangerous situation, which made the use of lethal force more likely,” the audit team’s report says. “Although speculating about what might have happened is always difficult, had Officer Alvarez made a different tactical choice, the shooting of Mr. Kay might have been avoided.”
MPD’s internal investigators cleared Alvarez of policy violations, but the Use of Force Review Board, an internal body that reviews serious uses of force, and the team of auditors hired by the Office of the D.C. Auditor disagree. Although the audit team says MPD officers “squandered any opportunity to de-escalate the situation,” they did not find that Alvarez violated department policies. Instead, auditors say the killing demands a “tactical opportunity for improvement.” The United States Attorney’s Office declined to bring criminal charges against Alvarez.
This is the second ODCA report on MPD’s internal investigations into fatal encounters with D.C. police. The first report released in March reviewed the deaths of four Black men at the hands of MPD officers in 2018 and 2019. In those cases, the audit team revealed how MPD repeatedly failed to adequately investigate its officers’ use of the most sacred responsibilities the public gives them.
This time around, the same team of independent auditors from The Bromwich Group and Steptoe & Johnson monitored the investigation from the beginning and provided input and recommendations throughout the process, a positive step forward that Michael Bromwich, who led the team, hopes will continue. The audit team called the investigation into Kay’s death “professional and thorough,” but still identified holes and said MPD resisted some of their input.
“Again we saw a reluctancy to expand the scope of the investigation beyond the four corners of the ‘shoot/don’t shoot’ decision,” the report says.
On Sept. 2, members of MPD’s crime suppression team watched as Kay and three others live streamed from a car while holding guns and cash on the Instagram account “Babyfifty1.” The account is used by local rapper Marcyelle Smith, according to the audit report, which contains links to the Instagram Live videos. (MPD got access to the videos from Instagram with a search warrant filed in D.C. Superior Court.)
Alvarez, Sgt. Terrence Welsh, Officer Alexander Farley, and Officer Trevor Wilks found the four men in a black Dodge Caliber parked in an apartment parking lot off Orange Street SE.
The team of cops did not have a plan for what they would do when they found the vehicle, the internal investigation found. Instead their “approach was entirely improvised,” the audit team’s report says, and they “squandered any opportunity to de-escalate the situation.”
“The tactics of Sergeant Welsh’s squad were poor and contributed to the deadly encounter between Officer Alvarez and Mr. Kay,” the auditors’ report says.
When one of the men sprinted from the vehicle, Alvarez immediately gave chase, running past the the car where the other three were waiting. Alvarez stopped when the man was too far away. That’s when Kay sprinted from the car toward Alvarez, the investigations show.
Alvarez turned toward Kay, who held a pistol in his hand. The officer yelled “Don’t move! Don’t move! Don’t move!” and almost simultaneously fired one shot, hitting Kay in the chest. From the time Alvarez got out of the car to the time Kay hit the ground took about 10 seconds, according to the auditor’s report.
Internal investigators interviewed Alvarez and the other three members of the crime suppression team that day, though the interviews were “inappropriately brief,” the audit team says. Alvarez’s interview lasted for 27 minutes, Wilks’ for five, Farley’s for seven, and Sgt. Welsh’s for 15.
MPD’s lead internal investigator did not intend to interview the officers a second time but did so at the audit team’s suggestion. The second round of interviews lasted between 26 and 59 minutes, the report says.
Still, auditors identified deficiencies. Assistant Chief Wilfredo Manlapaz “specifically rejected the recommendation that the investigation should explore the mission and objectives of the [crime suppression teams] and the scope of their authorization,” the report says. Bromwich tells City Paper police believed those questions were outside the scope of the investigation.
“There is a very narrow view of what’s relevant to the investigation, and that’s consistently the case,” Bromwich says. “We think for an adequate review and analysis of what happened, the scope of the investigation needs to be broadened.”
MPD Lt. Nikki Lavenhouse, who is in charge of the crime suppression team, was “generally not well informed” about the team’s activities. She had no knowledge of the team’s operations until after the shooting, the audit report says, which demonstrates a broader, strategic failure by MPD’s chain of command. “In general, supervision of the [crime suppression teams] appears to be very loose, leaving much to the sergeant’s discretion,” the report says.
Auditors also note that MPD’s internal investigators gave a “detailed and elaborate justification for the actions taken by the officers rather than a balanced and critical analysis of their conduct.” For example, an excerpt from the investigative report says:
“While Officer Alvarez did expose himself to the risk of an attack emanating directly from the Dodge, his action was not unreasonable given the circumstances as he knew them at the time. While officers must always take action in the safest manner possible, it is not feasible to eliminate all risk. Given all the factors that Officer Alvarez knew, or should have known at this time, it was an acceptable risk for him to take”
Unlike the previous investigations, auditors had the opportunity to monitor MPD’s investigation into Kay’s death from the beginning. They submitted questions, recommended interviewees, and participated in interviews. Bromwich says they were not allowed to ask questions of the officers, but made suggestions to the internal investigator for follow-up lines of questioning.
The D.C. police union objected to the audit team’s participation in the interviews, according to the final audit report. The report also notes that in the first interview, the web camera was pointed at the investigator, not the officer. MPD investigators pointed the camera toward the officer for subsequent interviews at the audit team’s request.
The auditors made several recommendations, including developing new policies on foot pursuits, improvements to internal investigations, and specialized training for officers on crime suppression teams, among others. Chief Robert Contee agreed to implement all of the recommendations in full except for one. Auditors suggested MPD interview all “relevant witnesses” at least two times. Contee agrees that all officers involved in fatal incidents should be interviewed twice, but “expressed discomfort with the potentially elastic definition of ‘relevant witnesses.'”
The audit team also notes Contee’s walk back of his previous promise to publicly release investigative reports of fatal incidents. Auditors say the release of those reports are “critical to MPD’s continuing efforts to gain credibility” and urges Contee to start by releasing the report into Kay’s death.
Neither Contee nor a police spokesperson immediately responded to City Paper’s email asking if they would release the report.