When Alaska police use deadly force, who holds them accountable?

Second of two parts. Read part 1.

On a rainy December night last year, Juneau police officer James Esbenshade sat in his patrol car looking at real estate listings on his phone when a dispatcher summoned him by radio: There had been a report of shots fired at an apartment complex in the Mendenhall Valley.

“Copy, en route,” he replied.

He sped along deserted streets, passing silhouettes of rainforest spruce in the winter darkness, the drive captured by a dash camera. The dispatcher spoke again: The callers seemed “very excited,” she said. It wasn’t clear what was going on.

Four minutes later, Esbenshade pulled up on the wet asphalt in front of the Chinook Apartments. As he stepped out of the patrol car, a second, body-worn camera recorded his movements. Figures could be seen outside the apartment.

“What’s going on guys?” the officer called.

A man was approaching, yelling in a ragged voice. The man told Esbenshade to shoot him.

“Stop there. Stop right there,” Esbenshade shouted. “Hold it. Hold it.”

“I will kill you!” he growled at the officer.

“Let me see your hands,” Esbenshade called. “What have you got?”

“I will kill you!” the man repeated.

“Step it up, step it up,” Esbenshade muttered into his radio, asking other police units to come quickly.

The man was swinging something over his head. A gawky, long-legged puppy trotted behind him, illuminated by headlights.

Suddenly: A gunshot. A scream.

“One down,” Esbenshade blurted into his radio. Shots fired.

In the light of a flashlight, Kelly Stephens, 34, lay crumpled on the ground, howling unintelligible words. He had been shot once in the abdomen.

People gathered in the yard of the apartment complex began to holler. Esbenshade shouted for them to stay back. Another police officer arrived.

“He had a chain,” Esbenshade explained, out of breath. “He was swinging it.”

It turned out to be a dog leash.

Kelly Stephens, a tattoo artist from Las Vegas chasing a dream of living near the wilderness, was dead.

Deaths

Stephens is one of dozens of Alaskans killed in encounters with law enforcement.

When he died on Dec. 29, 2019, Stephens was the 36th person to be killed by police here since the beginning of 2015.

Since that day, seven others have been shot to death, a total of 43 people. To some, that number is surprising.

“I’m absolutely astounded,” said Bob Griffiths, the head of the Alaska Police Standards Council. “Because — I know of maybe, a few (incidents) a year where officers have fired their weapons and taken deadly force. I’m astounded that in five years you’d have that many.”

Fatal uses of police force have not generally received sustained public scrutiny in Alaska. But that is changing. Protests across the country in the wake of the death of George Floyd have focused an unprecedented spotlight on how police handle lethal encounters.

The Daily News has reviewed every Alaska police shooting since 2015 to learn more about the circumstances in which police kill, and how law enforcement agencies respond.

[43 people have been killed by Alaska law enforcement officers in the last five and a half years. Here’s what we learned by examining each case.]

What we found: Alaska’s system largely relies on police to investigate themselves. And unlike some jurisdictions in the United States, most of the process is hidden from public view.

So far, all of the Alaska deaths have been found by state prosecutors to be justified homicides.

None of the more than 80 police and correctional officers who fired shots or participated in restraining someone who died have faced criminal charges or the loss of their certification to work in Alaska law enforcement.

That includes at least three deaths of citizens who were unarmed when shot by police and the death of an Anchorage jail inmate who was restrained face-down on the floor of a cell by correctional officers while pleading that he couldn’t breathe.

Some, like Griffiths, whose council is designed to root out bad behavior by law enforcement officers, says he isn’t surprised that 100 percent of shootings have been found to be justified.

“I have very high respect for the level of training and professionalism in Alaska law enforcement,” he said. “Our training here exceeds that of most other states.”

But critics call the system of justice for police officers a farce. They say it relies on an insider system that fails to hold officers accountable, at any level, when they kill or maim the citizens they are sworn to protect.

Many people outside law enforcement and academics who study policing know little about how police use of force is investigated, said Troy Payne, a University of Alaska Anchorage professor. When they find out, some are shocked.

“People are scandalized by the status quo,” he said. “They look at it and think, wait, that’s how it works?”

Three systems

As soon as Kelly Stephens died in Juneau, a ritual began, mostly obscured from the public eye, of deciding what should happen to the police officer who shot a bullet into Stephens’ body.

In Alaska, police officers face three independent but interlinked systems intended to hold them accountable for a decision to use deadly force: the possibility of criminal charges, the removal of their ability to work in law enforcement, and internal department discipline.

Two of the methods rely on a police officer’s colleagues to investigate his or her acts and then voluntarily hand the results over to state prosecutors, or get the standards board involved.

There is no law that requires police departments to refer what they typically describe as “officer-involved shootings” to prosecutors for review, said Jack McKenna, the head of the Office of Special Prosecutions. But for the last decade, it has been the standard practice.

In larger departments, such as the Anchorage Police Department, an internal affairs unit investigates use of force by officers. In smaller departments, the Alaska State Troopers investigative arm is sometimes called in to help, to avoid a conflict of interest or the appearance of a conflict. Outside agency investigation happened in cases such as the 2016 death of Vincent Nageak III, the chief of the Barrow Volunteer Fire Department at the time of his death and the son of prominent North Slope politicians.

Police departments say they investigate officer-involved killings just as they would any homicide: By collecting evidence, interviewing witnesses and gathering a record of what happened.

The file turned over to prosecutors in Stephens’ case included “body camera video, written reports, in-car video recordings, audio recordings, photographs of the scene of the incident, videos captured by businesses and recorded witness interviews.”

Payne, the researcher, says police officers generally take their duties to investigate what departments term an “officer-involved shooting” seriously. Still, police officers are investigating their colleagues.

In the Juneau case, Esbenshade refused to answer investigators’ questions.

“Through his attorney, Officer Esbenshade declined to be interviewed about the shooting,” says the review in his case.

Ben Crittenden, the lawyer representing Stephens’ family in a federal wrongful death lawsuit against the Juneau Police Department, called the omission shocking.

“I don’t know how you can do an adequate investigation of a police shooting by an officer without asking that officer what happened and why he did what he did,” Crittenden said.

Through his attorney Julie Willoughby, Esbenshade declined to comment.

A narrow review

The investigation into Stephens’ death landed on the desk of an attorney with the Office of Special Prosecutions.

In Alaska, prosecutors with the specialized statewide unit within the Department of Law review police use-of-force deaths to make a single, narrow legal determination: Was the officer’s action “justified under Alaska law,” said Robert Henderson.

From 2013 to 2017, Henderson was one of the attorneys making those decisions. He is now a professor of legal studies at the University of Alaska Anchorage.

Prosecutors are only supposed to determine whether the act was within the bounds of the law as written, Henderson said. They are not asked to determine whether the decision to shoot was wise, could have been avoided or followed department procedure.

Alaska law gives law enforcement officers special authority to use deadly force in situations where private citizens wouldn’t be allowed to, Henderson said.

In addition to using deadly force if they believe their life or the life of another person was in danger, an officer may use deadly force if the officer “believes the person committed a violent felony, if the person has escaped or is attempting to escape while in possession of a firearm or the felon’s conduct may otherwise endanger life or inflict serious physical injury unless arrested without delay,” Alaska statute says.

In the end, the legal analysis Henderson and other prosecutors use usually comes down to whether an officer “reasonably believed” their life or another person’s life was in danger.

“It really does come down to that,” he said.

That can’t just mean reasonable to that specific officer, Henderson said: It also must be objectively reasonable, as in “another police officer would have done the same thing,” he said.

In the Esbenshade review, even without a statement by the officer that he believed his life was in danger, the prosecutor’s decision rested on that idea.

“Officer Esbenshade could have subjectively believed that Mr. Stephens was going to assault him with the chain,” wrote McKenna, who conducted the review. The chain and carabiner combination could have caused serious injury.

“I conclude that Officer Esbenshade was legally justified in his use of deadly force to protect himself from the imminent threat of serious physical injury,” he wrote.

That’s all part of why it is rare for officers to be charged with a crime for on-the-job use of force, both in Alaska and nationwide, according to Henderson.

Society is set up that way, said Payne, the criminology researcher: Laws give police “a monopoly” on the legitimate use of deadly force, he said, quoting the pioneering criminologist Egon Bittner.

There’s a robust conversation going on about whether that’s still an acceptable status quo, given research that shows drastic disparities in the way communities, especially communities of color, experience policing, he said.

In practical terms, the current system means that questions outside the scope of legal-or-not don’t make it into a state prosecutor’s review. Whether the officer should have waited for backup to arrive, called for help, or made other “tactical or strategic decisions” aren’t covered.

That’s a vast gray area.

“There’s a big gulf between actions that are not criminal and actions that are not advisable,” is how Payne, the criminologist, puts it.

The mystery of internal department discipline

When Henderson was reviewing police shootings, he never learned whether an officer was reprimanded, demoted or otherwise disciplined by his department for their role in a death.

Even as a prosecutor weighing criminal charges in a case, he did not have access to internal department disciplinary records.

Right now, there is no way for the public to know anything about whether police officers are disciplined by their departments for use of force. Alaska is among 23 states that keep police disciplinary records strictly confidential.

Anchorage Chief of Police Justin Doll says they aren’t any more secret than the records of other public employees.

“Personnel records are considered private by Alaska state law, and I think characterizing it as secret puts a little bit of a spin on it,” he said.

Would Doll support adding transparency to disciplinary records of police officers, as some states, including California and New York, have moved to do?

“I don’t know that we have a specific preference one way or the other,” Doll said. “We’re just obligated to follow the existing law.”

Police union contracts with departments commonly include a provision that disciplinary infractions must be removed from a personnel file after two years. That’s standard, says Griffiths of the Alaska Police Standards Council.

“Every unionized department I ever worked for or had dealings with had similar contract provisions,” he said.

Doll said that doesn’t mean a pattern of excessive force documented in a personnel file wouldn’t remain within a separate internal affairs file.

Alaska goes as far as specially enshrining a right to privacy in its constitution.

In Alaska, there should be a “serious policy discussion” at the legislative level about employee personnel records, Payne said.

“There’s probably some middle ground between where we are now — zero visibility — and 100 percent transparency,” he said.

A powerful council

In the past five years, police and correctional officers in Alaska have lost their badges for smoking marijuana, losing explosives and lying to their bosses. But never for killing someone.

The Alaska Police Standards Council has the power to dole out a serious, and public, form of discipline to police officers: Taking away their police certificate, effectively barring the person from working in law enforcement in Alaska.

A review of all police standards council cases since 2015 found that no cases involved an officer accused of a questionable or potentially illegal fatal use of force.

However, at least one police officer has lost his license for “erratic, dangerous” patterns of behavior that fell short of a fatal incident. One former North Slope Borough officer, Curt Hamilton, was banned from working as an officer in Alaska in 2018 in part for threatening people with weapons and escalating minor situations.

“Smaller examples of him not being able to do his job include tasing a suicidal man in November 2016, and pepper-spraying a suicidal man for not having a license plate in March 2017,” the court found. “He was unable to navigate these difficult situations in a compassionate manner; instead, Mr. Hamilton seems to escalate every situation with force.”

An analysis of police standards council records and data on officer-involved shootings shows that two former officers lost their police certificates within months of firing shots in fatal incidents. The Alaska Police Standards Council says the fatal incidents were not related to the council actions against the officers in either case.

‘His true love'

Kelly Stephens was raised in Las Vegas. After high school, he spent four years in an apprenticeship to become a land surveyor, like his father. Las Vegas was in the midst of a construction boom, and Kelly wanted in on it, his father said. After the boom went bust, he turned toward pursuing a career as a tattoo artist.

“That was his true love,” said his father, Kevin Stephens.

His mom won a trip to Alaska in 2007 and brought her son along. They road-tripped to Denali and down the Kenai Peninsula, marveling at the ratio of wilderness to town.

About a decade later, he took an opportunity to work as a tattoo artist in Juneau. He told his parents about biking around the town, visiting glaciers. In the fall, he’d gotten a mutt he had named Raider, after his favorite NFL team.

“He was doing great for a long time. He was pursuing his craft” said his father.

Things were not altogether fine: Reporting by the Juneau Empire referenced an on-and-off heroin problem in a town especially hard hit by opioids. Stephens was homeless from time to time.

On the day of his death, Stephens had been seen earlier at a grocery store, swinging the dog leash above his head and frightening customers, according to the state prosecutor’s review. Officer Esbenshade had been called to the grocery store incident. That time, the caller described the leash as having a “grappling hook” on the end of it.

Virginia Stephens found out about her son’s death from a note left on her door by the Clark County, Nevada, coroner’s office. The coroner’s office referred her to the Juneau Police Department, where an officer told her from thousands of miles away that her son had been killed. That was the first gut-punch, the family said. The second was learning it was a police officer who had shot him.

“Oh god, it was like putting a hole in me,” said Kevin Stephens. “I come from a family of military and police. The whole thing makes me sick to my stomach.”

Everything else they’ve learned about their son’s death has been from news media and his friends. After the lawsuit was announced, the Juneau Police Department released limited dash-cam and body-cam footage of the minutes surrounding the shooting. The family has some footage but hasn’t watched it yet.

“I just don’t feel like I can watch my son dying right now,” Virginia said.

‘The power of public protest ... really can’t be ignored'

On March 6, a prosecutor declined to pursue criminal charges in the case.

He reasoned that Esbenshade had been called to a volatile situation, in which Stephens repeatedly threatened to kill him and advanced on him despite his entreaties to stop. Esbenshade could have been in fear of grievous bodily harm when he used fatal force, the review found.

Four months later, Stephens’ family filed a civil lawsuit against the Juneau Police Department and Esbenshade. Wrongful-death lawsuits against the police are notoriously difficult to win because of a legal principle called qualified immunity, which keeps police officers from being held liable in civil court in all but the most extreme cases.

Qualified immunity shields a police officer unless he or she violates a “clearly established” right, said Anchorage attorney James Christie.

“The alleged violation must be so obvious and apparent that any reasonable officer would know they are violating a civil right, or the officer’s specific conduct must have previously been found by a court in an earlier case to violate a person’s civil rights,” he said.

For example: An officer who sexually assaults someone in custody isn’t protected by qualified immunity because that conduct clearly falls far outside the expected scope of what a police officer is supposed to do, Christie said. But an officer who shoots a subject they believe poses a risk of death or serious injury has acted within the scope of what police are expected to do.

It takes a lot to pierce that immunity shield, Christie said.

Still, Stephens family attorney Ben Crittenden, who is working with two nationally known Los Angeles-based civil rights attorneys on the case, says he believes the lawsuit is winnable.

“A dog leash and a carabiner never put anyone in fear for their life or safety,” Crittenden said. “That’s one thing that’s absolutely required for police to shoot someone in self-defense.”

The City and Borough of Juneau and Esbenshade have not yet filed responses to the lawsuit.

The current waves of protest about police violence nationally are proof that the status quo may no longer suffice, said Payne, the university researcher.

Beyond disciplinary boards, criminal charges, and the lawsuit challenges, the public could force sweeping changes to what happens to law enforcement officers who kill in Alaska and beyond.

“The power of public protest to put pressure on public agencies — it really can’t be ignored,” he said.

Contact the reporter: mtheriault@adn.com