Lawsuit says Snohomish County deputies not justified in Sultan shooting

By Mike Carter / The Seattle Times

A new federal lawsuit alleges two Snohomish County deputies repeatedly shot and critically injured an unarmed and distressed Sultan man last year after killing his dog in an incident prosecutors are reviewing for possible criminal charges.

Marcus Whybark can be seen on police body camera video running from the officers, hysterical, after one of them shot his dog as it charged out of the open door of his pickup, parked in front of his Sultan home the evening of July 9.

The video shows Whybark climbing onto the bed of another pickup and covering his face with his hands as the deputies turn their guns on him and open fire.

He was struck in the arm, pelvis, torso and both legs, and had a grazing wound to his head, according to the lawsuit filed this week, and spent weeks in the hospital.

Whybark earlier had been holding a knife and was acting strangely — prompting a neighbor to call 911 — but had put the knife down before he was shot, according to the lawsuit and body camera video, viewed by The Seattle Times.

In the video, he appears to pick the knife back up when a second officer arrives, and has it in his hand as he climbs atop a pickup; however, his hands appear to be empty when the shots are fired.

Whybark’s lawsuit names Sgt. Carl Whalen and deputy Kenneth Fredericksen as defendants. According to the Snohomish County Sheriff’s Office, both men remain on duty. Spokesperson Courtney O’Keefe said an internal investigation is pending.

An outside criminal investigation, completed in March by the Snohomish County Multiple Agency Response Team (SMART), is being reviewed by prosecutors, said Michael Held, chief of operations for the Snohomish County Prosecuting Attorney’s Office.

The claim alleges the deputies failed to de-escalate the situation — as required by law — and that they shot Whybark “without warning or justification.”

“He presented no immediate threat to the officers or anyone else,” wrote Whybark’s Seattle attorney, Edwin Budge, who points at Whalen, a 15-year department employee, as being the aggressor — arriving on the scene after Fredericksen had begun communicating with Whybark — and immediately charging toward Whybark and using a Taser on him.

“Police are supposed to de-escalate, but here the sergeant did the opposite,” Budge said in a written statement. “The video doesn’t lie. There needs to be accountability.”

According to Washington law, police are justified in using deadly force in narrow circumstances when an officer reasonably believes that they or someone else are in imminent threat of serious injury or death. Police must take into account the seriousness of the crime allegedly involved, and the law further requires officers to make reasonable efforts to de-escalate deadly circumstances when feasible.

The lawsuit alleges Whalen, in particular, ignored these steps and that Whybark had not committed a crime, and posed little or no threat to anyone when he was shot.

Whybark, 45, who has no criminal history, was not charged with a crime.

The lawsuit asserts the officers violated Whybark’s Fourth Amendment rights to be free from unwarranted search and seizure, and that the officers used excessive force in doing so.

Filed in U.S. District Court in Seattle, the lawsuit says Whybark, an admitted alcoholic, had stopped drinking, cold turkey, the day before and suggests he was likely suffering from withdrawal — which can cause hallucinations and bizarre behavior — when police were called.

Whybark and his girlfriend had been to a concert that day and, when Whybark got home, “he began experiencing a mental health episode … that caused him to feel confused, disoriented and anxious,” the lawsuit says. Whybark armed himself with a knife, saying he felt something “evil” in his house.

Whybark went outside into the street, followed by his girlfriend, who climbed into her truck parked in front of Whybark’s truck. He spoke with a neighbor riding by on a bicycle, who, concerned, tried to take the knife from him, according to the lawsuit. There was a brief struggle, the lawsuit says, and the neighbor, who was not injured, called 911.

Fredericksen — who had been a deputy for about 16 months — arrived first, and the lawsuit claims his demeanor and approach were appropriate: He stopped a distance from Whybark, stood behind the door of his cruiser, and sought to speak to Whybark, who was refusing to communicate or cooperate with the officer’s requests, but had put down the knife. Fredericksen is heard broadcasting, “The knife is on the ground.”

The lawsuit calls Fredericksen’s initial response “commendable” and said the situation was “relatively calm” and that Whybark was not a threat, but was not following the deputy’s direction.

The incident escalated when Whalen arrived, according to the lawsuit. Although he later acknowledged in interviews with investigators that the knife was “out of play,” he arrived and immediately jumped from his vehicle and approached Whybark, ordering him to “Put it down now!” and get on the ground.

“Instead of proceeding calmly, deliberately and thinkingly, Defendant Whalen did the exact opposite,” the lawsuit states. “He … aggressively, unnecessarily and unreasonably escalated the situation.”

According to the video and the lawsuit, the deputy marched toward Whybark yelling for him to “Put it down now!” and uses a Taser on Whybark when he appeared to bend down, causing Whybark to fall to the ground near the open door of his truck. That’s when Whybark’s dog, a 4-year-old pit bull mix, charged out of Whybark’s truck. Whalen switched from the Taser to his service weapon and shot the dog, which ran into Whybark’s house and died, according to the lawsuit.

Whybark is described at this point as “shocked, confused and scared for his life” in the lawsuit.

The video shows him apparently picking up the knife again, running toward his girlfriend’s truck and jumping on the covered bed of the truck. In the video, he did not appear to have the knife in hand when he was shot while on the pickup.

His hands are visible and appear empty in the video when Whalen and Fredericksen open fire. Whybark fell “like a sack of rocks” to the pavement, the lawsuit states.

The lawsuit alleges the deputies made a series of “demonstrably false statements” when compelled by then-Sheriff Adam Fortney to describe what had happened.

The lawsuit alleges Fredericksen claimed Whybark spent “10 to 15 seconds” trying to “stab the window” of his girlfriend’s truck while lying on the composite cover over the truck’s bed and was “actively trying to actively harm people with the knife,” all of which is belied by the video, the lawsuit alleges.

Whalen, in a written statement, said Whybark “posed an immediate threat to others” and said he shot Whybark before he climbed onto the truck. “Defendant Whalen acknowledged … in his statement that after reviewing the video footage, his ‘recollection was inaccurate.’”

Whybark was hospitalized for weeks and continues to undergo treatment and therapy for his injuries.

“It’s difficult for me to talk about what happened that day,” Whybark said in a statement. “I feel blessed to be alive and thankful that the shooting was caught on camera. People can review the video and make their own judgment about whether the police were justified.”