The charges didn’t stick when two Vancouver police officers searched Jabo Johnigan’s home and arrested him. In fact, prosecutors agreed with the defense that the search and seizure was unlawful.
But, in a demonstration of the ways courts and police departments can disagree, the Vancouver Police Department says the two officers acted wholly within policy.
That’s according to investigative documents released by the city of Vancouver last week. The city released the documents after news broke that Johnigan is suing Vancouver in federal court for alleged civil rights abuses. Two officers involved in his arrest and Vancouver Police Chief Jim McElvain also are listed as defendants in the lawsuit.
In four pages summarizing the internal investigations, Lt. Blaise Geddry wrote that he agreed Johnigan’s arrest would be hard-pressed to “meet the court’s burden of ‘beyond a reasonable doubt.’”
But, he added, that does not mean the officers did anything wrong.
“After researching related cases on the topic of search and seizure, it is clear to me that the officers did act reasonably in entering the residence believing that Mrs. Young was a resident and had the authority to grant permission,” he wrote.
On March 13, 2019, Vancouver police officers Christopher Bohatch and Scotland Hammond responded to a 911 call by Johnigan’s girlfriend, Israel Young, about an argument that led Johnigan to break her television.
Related: Federal Lawsuit Says Vancouver Police Illegally Searched, Arrested Black Resident
Young told 911 dispatchers there were no weapons or violence involved. She said there were no drugs involved. When police arrived, she also said she could not permit them to enter the house because she didn’t own it — Johnigan did. That did not stop the officers from entering the home and arresting Johnigan.
A federal court will ultimately decide whether officers Bohatch and Hammond — and the police chief and the city — violated Johnigan’s constitutional rights.
His defense attorney, Angus Lee, recently told OPB he plans to seek between $500,000 and $1 million in damages.
According to an internal investigation, spurred by Johnigan’s complaints, the officers are exonerated in the eyes of their bosses.
The police had no warrant, but they don’t always need one. Police officers can legally search a house if the homeowner consents. It’s more complicated if the person consenting doesn’t own the house, but stays there.
Young had stayed at the apartment with Johnigan, with whom she has a child. She was not, however, on the apartment’s lease.
On several occasions, the suit states, Young told the officers she couldn’t give them permission to enter. The suit says the officers confirmed as much in their police reports. At one point, Bohatch told attorneys that Young said, “I can’t let you in. Jabo has to let you in.”
These facts led prosecutors to drop the criminal charges. Records show that Prosecutor Lauren Boyd told police she agreed with the defense that the search was unlawful.
“I dismissed this case without prejudice because I agree with defense that there was no exception to the warrant requirement,” she wrote. “We didn’t have enough evidence to proceed once we took away the information that was obtained after the entry into the apartment.”
After the case dissolved, the suit said neither Bohatch nor Hammond faced discipline. Then, on Jan. 2, Johnigan emailed McElvain, the police chief, frustrated the officers faced no repercussions.
“As both officers are white, and I am black, I can’t help but suspect that they felt they could get away with this because of my race,” he said. “They should be held accountable for their actions.”
Dan Lloyd, a Vancouver assistant attorney representing Bohatch and Hammond, denied race played any role in the incident. He called it “categorically false.” Lloyd also stated the officers had permission to enter.
“When officers Bohatch and Hammond arrived, this 911 caller gave the officers consent to enter so they could view a video she had taken of the crime,” Lloyd said. “While there was no warrant, there was permission to enter.”
When weighing whether Bohatch and Hammond violated the department’s policies against search and seizure, the officer overseeing the internal investigation said the arresting officers acted within policy. Geddry pointed to the fact that there were previous 911 calls indicating Young lived at the home, and that she had property there.
He also cited case law that dissects under what circumstances a cohabitant of a residence can allow police to enter. In the end, Geddry exonerated both Hammond and Bohatch.
“The actions of (the officers) did, in fact, occur, but were legal, justified, proper and in conformance with policy and procedure,” the investigation said.
Sara Baynard-Cooke, an assistant city attorney representing the city and McElvain, declined to answer questions about the lawsuit.
“The City and Chief McElvain dispute the allegations in the complaint and will file a formal answer within the next few months,” she wrote.
It’s not uncommon for lawyers and police to see this kind of split, said Portland-based defense attorney Kevin Sali. Sometimes officers disagree with lawyers’ conclusions. And standards are often different for police discipline than taking a case to court.
“Evidence gets suppressed all the time for a variety of reasons in criminal cases, and that doesn’t necessarily mean each time that happens that a police officer is going to be disciplined,” Sali said.
He added that doesn’t mean Vancouver police, or any police departments, are conducting extrajudicial searches.
“The point isn’t that police get to make different rules about what’s a legal search and what’s not, but they can have some leniency,” he said. “Just the fact that a search turns out to be illegal doesn’t mean any action is going to be taken against the officer.”