Updated with news that Edmonds police have sent the case to the city prosecutor for consideration of misdemeanor charges. And further updated with Mayor Mike Nelson’s response to the prosecutor’s office decision.
The Snohomish County Prosecutor’s Office has declined to file criminal charges in the case of a 69-year-old Edmonds man who vandalized the “I Can’t Breathe” art installation on the fence at Edmonds’ Civic Park.
Edmonds police had referred hate crime charges to the Snohomish County Prosecutor’s Office in connection with the Tuesday, July 14 incident. The artwork — installed two weeks ago by Edmonds artist Christabel Jamison as part of the city’s On the Fence temporary artwork program — was defaced with black spray paint. It was restored by community members a few hours later.
“The facts in this case, as established by the investigative record provided to my office by the Edmonds Police Department, and the applicable law, do not support the charge of hate crime offense,” Snohomish County Prosecuting Attorney Adam Cornell said Wednesday.
While “the underlying conduct that gave rise to this referral is shameful and distasteful,” Cornell said his office “cannot advance the cause of social and racial justice by furthering an unjust felony prosecution. To do so would be unethical.”
Cornell said that his chief criminal deputy, Matthew Baldock, and a victim advocate spoke with the artist last week and communicated their decision not to file charges.
Edmonds police said Wednesday that the case has now been referred to the city’s prosecutor “for review and consideration of misdemeanor malicious mischief charges.”
Police reported that just after 1:30 p.m. July 14, witnesses saw the suspect use black spray paint to cover the letter “T” in the artwork, which changed the message to read “I Can Breathe.” Witnesses watched the man drive away, and were able to get his license plate number, taking pictures of it with a cell phone. They shared that information with Edmonds police, who were able to determine the identity of the suspect vehicle and contacted the suspect at his Edmonds residence.
The suspect told investigating officers that “he was upset with how police were being treated and upset about the location of the art installation,” which is across the street from the Edmonds Police Department,” Chief Deputy Prosecutor Baldock wrote in a document announcing the decline of charges. When officers informed the suspect that witnesses had seen him spray painting the installation, “he became argumentative and said something like ‘Do you want me to clean the paint off?’, Baldock said, adding the suspect “declined to provide any further statement or answer any more questions.”
Baldock noted that to obtain a conviction in a hate crime, the following elements would have to be proven “beyond a reasonable doubt”: The suspect caused physical damage to or destruction of property of the victim or another person; acted maliciously and intentionally; acted because of his perception of the race or color or ancestry of the victim; and the crime occurred in Washington state.
Some of these elements have been established, including the suspect’s identity and the fact that he damaged the art installation and did so “maliciously and intentionally. In addition, the incident occurred in Washington. But the “insurmountable problem” in the case, Baldock added, is “the lack of evidence that the suspect’s actions were motivated by his perception of the victim’s race.” While the artist who installed the artwork is biracial, there is no evidence to suggest that the suspect knew anything about the artist’s race, he added.
While details about the incident were reported in local Edmonds media, and the artist’s race was also mentioned as part of a descriptive summary taped to the fence near the artwork, there is no evidence that the suspect read news articles or the sign near the artwork, Baldock wrote. “Perhaps even more problematic in that regard is the fact that when contacted by patrol officers, the suspect offered an explanation for his actions that had nothing whatsoever to do with the artist’s race,” he added.
“Prosecutors charge crimes based on provable and credible facts and on the law as given to us by the legislature,” Cornell said in a statement accompanying the charging decision. “My office will continue to vigorously prosecute hate crime offenses where there exists sufficient evidence to prove the crime beyond a reasonable doubt. And we will continue to advance the cause of social and racial justice while concurrently safeguarding the rule of law to both protect and preserve a more civil society.”
Jamison, a lifelong Edmonds resident and recent Edmonds-Woodway High School graduate, said her goal in creating the “I Can’t Breathe” artwork was to support conversation in Edmonds about the Black Lives Matter movement. Her installation incorporates the colors of the African American flag, a symbol of love and unity, and the phrase in red vinyl letters “I Can’t Breathe,” which she sees as “a cry for justice of the Black community.”
Edmonds Mayor Mike Nelson said late Wednesday afternoon that he disagrees with the prosecutor’s decision not to pursue the hate crime charge, adding that it “denied justice not only for the artist who put her heart, talent and time into this art installation, but for the BIPOC members of our community.”
He also noted that the prosecutor’s office chose not to file charges in a previous case involving an employee of Harvey’s Lounge on Highway 99 whom Nelson said was “violently wielding a bat against two Black children in Edmonds,”As we reported in our earlier story, that incident involved racially motivated threats directed at two Black teenagers outside Harvey’s in February 2018.
Police charging documents filed with the prosecutor’s office following the Feb. 4, 2018 incident included a statement by one of the victims, an 18-year-old man — who said he feared for his safety after a woman carrying a baseball bat threatened him and his 14-year-old sister, using a racial slur.
In declining to file charges in the Harvey’s case, Cornell said that the Edmonds police investigation — which included both witness statements and extensive video footage from Harvey’s — indicated that the employee was holding a bat and that she did direct racial slurs at the teens. However, the bat “was not brandished in a threatening way,” Cornell said. “And the video proves that.”
Nelson said that in light of this second decision from the prosecutor’s office, “some residents have reached out to me to express their concern that they are starting to see a pattern of the prosecutor not seeking justice for crimes against Black people in Edmonds.”
“This is the second time our Edmonds police detectives have thoroughly investigated an incident, found probable cause, and brought forward charges of a hate crime, only to have them rejected by the county prosecutor,” Nelson said. “This is far more than just a crime — this sends a chilling message to Black people and other people of color in our community that they are not welcome and not safe,” he added.
Here is the mayor’s complete statement:
I firmly believe that the malicious defacing of the “I Can’t Breathe” artwork, created by a local, young Black artist and selected as part of the City’s “On the Fence” public art program, was a hate crime and I disagree with the Prosecutor’s decision not to prosecute it as such.
This is the second time our Edmonds police detectives have thoroughly investigated an incident, found probable cause, and brought forward charges of a hate crime, only to have them rejected by the County Prosecutor.
Some residents have reached out to me to express their concern that they are starting to see a pattern of the Prosecutor not seeking justice for crimes against Black people in Edmonds, including the previous hate crime involving an employee of Harvey’s Tavern violently wielding a bat against two Black children in Edmonds.
This is far more than just a crime – this sends a chilling message to Black people and other people of color in our community that they are not welcome and not safe.
The Prosecutor’s office claims there is a “lack of evidence” that the suspect’s actions were motivated by his perceptions of the race of the victim.
“I can’t breathe” is the statement made by a Black man, George Floyd, while he was being brutally murdered by a white police officer. It has been a rallying cry for justice against police brutality of Black people by many concerned citizens nationwide and in our local community.
The suspect in this case admitted he was frustrated with how the police are being treated.
It is reasonable to infer by the public display of the artist’s race in the summary next to the sign, the widely published news interviews of the artist, and the suspect’s actions of spray-painting over the “t” in “I can’t breathe,” that he knew exactly what he was doing: that the victim was Black, that this art is meant to shine a light on racism against Black people and police brutality, and knowing this, he chose to destroy it.
The Prosecutors regularly rely on circumstantial evidence to prove their cases. How is this any different?
The jury decides whether a crime has been committed beyond a reasonable doubt – not the elected Prosecutor. Now, a jury will never get to decide whether this was a hate crime.
The Prosecutor denied justice not only for the artist who put her heart, talent and time into this art installation, but for the BIPOC members of our community.
— By Teresa Wippel
Publisher’s note: The suspect’s age was originally reported as 70 but the prosecutor’s office confirmed his age as 69.