A Washington State prosecutor has found no crime — but much to criticize — in the September 2020 law enforcement raid that killed the anti-fascist activist Michael Forest Reinoehl in a hail of bullets.
Rienoehl was a murder suspect wanted for the shooting death of right-wing agitator Aaron “Jay” Danielson in the streets of Portland in late August 2020. In a 24-page report, Prosecuting Attorney Jon Tunheim of Thurston County, concludes that, although Reinoehl never drew a weapon on the U.S. Marshal task force that came to arrest him, his killing was “justified under Washington State law.”
Yet even as he absolved the shooters of criminal liability, the prosecutor called for further “scrutiny” of a confrontation that was marred by miscommunication and ad hoc decision-making and put innocent parties in danger. “I feel compelled,” Tunheim writes, “to say how fortunate it was that no bystanders were injured or killed.”
The killing of Reinoehl by law enforcement sparked controversy from the start. An initial statement by the U.S. Marshals insisted its task force members had “attempted to peacefully arrest” Reinoehl, and only fired on him after he “produced a firearm, threatening the lives of law enforcement officers.” An eyewitness soon contradicted this account, however, describing a sudden and violent ambush by officers who “never attempted to apprehend Reinoehl” but rather opened fire on him without warning.
The Trump administration, for its part, proudly politicized Reinoehl’s death, touting the killing of the self-proclaimed anti-fascist in terms that marked an erosion of the rule of law. First, Attorney General Bill Barr lauded the “takedown” of an “admitted Antifa member.” President Trump then celebrated Reinoehl’s death as an official act of revenge, insisting: “There has to be retribution when you have crime like this.” Trump later used Reinoehl’s killing as an applause line at a rally: “We got him,” he told a crowd in North Carolina, insisting the task force had no aim to take Reinoehl into custody: “We sent in the U.S. Marshals,” Trump said. “They knew who he was. They didn’t want to arrest him, and 15 minutes [later], that ended.”
The Thurston County prosecutor’s report does not fully cut through the fog of conflicting accounts. But it describes a raid that was chaotic, gung-ho, and hampered by glitchy radios and poor planning. It recounts how an impulsive decision by two officers sparked the task force to suddenly close in on Reinoehl, and how that apprehension effort almost immediately devolved into gunfire after officers saw the suspect reach for an object they could not see clearly, but said they believed to be a gun. The prosecutor adds that the evidence is “conflicting” as to whether the officers even turned their police lights on: “I cannot conclude with any certainty,” he writes, “whether the emergency lights in the unmarked cars were activated at the time they approached.”
At the time of the killing on September 3rd, 2020, Reinoehl had been on the lam for days. But Washington State law enforcement officers — operating as a task force under the authority of the federal U.S. Marshals service — tracked him down in a housing complex in Lacey, Washington, outside the state capital, Olympia.
Commanded by a Deputy U.S. Marshal, the task force was made up primarily of Washington state sheriff’s deputies. The report criticizes the officers’ communication plan, under which they tuned their radios to a channel in neighboring Pierce County: “Because they were operating outside of Pierce County, communication became intermittent and the transmissions had considerable static, making communication difficult.”
This “communication deficiency” the report adds, “created confusion during the critical tactical decision to attempt an arrest, and it appears that the leader of the team could not effectively communicate a decision to the other officers.”
The report describes how task force members were waiting in their vehicles, conducting surveillance, when they spied Reinoehl enter a VW Jetta parked on the street at about 6 p.m. This sparked a debate over the glitchy radios. Some task force members felt they were too far away and should wait and tail Reinoehl as he drove away. One Pierce County deputy who was not in command of the task force shouted: “Let’s go take him,” soon adding, “OK, we’re moving,” and then barking: “Take him, take him now.”
Referring to this deputy and a partner in the same car, the prosecutor writes: “It appears the decision to proceed with attempting an arrest was actually made by the two officers who simply decided to move in.”
The deputy who had shouted “take him now” was the first to fire shots at Reinoehl — through the windshield of his own vehicle. According to the deputy’s statement, his partner pulled their Ford Escape in front of the Jetta to block Reinoehl from moving. The deputy claimed he opened his door and shouted “police!” which provoked Reinoehl to make suspicious gestures. “I could not see where his hands were,” the deputy wrote, “but he was making a movement with his arms… consistent with the moves that someone makes when they are attempting to grab a gun they have on their person.”
The deputy was armed with a department-issued rifle and immediately began firing it from inside the Ford. “I fired my rifle through the front windshield of our vehicle towards Reinoehl,” he wrote. “The front windshield did not shatter and I still had a clear unobstructed view of the suspect… and I continued to fire several shots at the suspect through the windshield.”
The deputy’s decision to fire on Reinoehl was so quick that his partner initially believed their vehicle was taking fire. “The windshield was cracking and splintering in front of me and spraying me with glass dust,” the partner wrote. “I realized the windshield was being struck by bullets. I thought we were being shot at and I needed to get out of the vehicle to respond to the threat.”
The partner quickly reassessed, coming to understand that the shots were being fired from inside the vehicle. He exited the Ford and took aim at Reinoehl. “I recall clicking the safety off on my rifle and I may have fired one or more rounds at him at that time,” he wrote, “but I am not completely certain as the events were unfolding quickly.”
Nearly simultaneously, a deputy in another car had pulled up on Reinoehl. In his statement this deputy wrote: “Reinoehl seemed to recognize us as law enforcement because he mouthed ‘Oh Shit’ as he reached down with his right hand and frantically pulled on his waistband/front right pocket area.” This officer also opened fire at the suspect.
Amid the gunfire, according to the prosecutor, Reinoehl jumped out of the Jetta. The deputies’ statements describe Reinoehl as continuing to grab at his waist, as though attempting to retrieve a weapon. Several describe concern that Reinoehl would escape or take a “hostage.” As described by the prosecutor: “They continued to believe Reinoehl was armed, although none of them had yet observed a gun. All three then fired additional rounds at Reinoehl… until he fell.”
The barrage of gunfire from the deputies was poorly aimed. Earlier reports have described “more than 30 rounds” being fired by officers. But according to the autopsy discussed in the prosecutor’s report, only three bullets were recovered from the suspect’s body: “a 9mm bullet from Reinoehl’s back, a 9mm bullet from his head, and a .223 caliber bullet from the back of his neck.”
Jonathan Smith, a former litigator for DOJ’s Civil Rights Division, tells Rolling Stone that a serious review of the task force’s operation should weigh two questions. First, did the shooters have legal authority to use deadly force. “Probably, the answer is yes,” he says. “But the other question is, Was that use of force avoidable? Was there another way to have approached his arrest?” In Smith’s view, the officers failed gravely here. “They went in to create confrontation,” he says. “It was like cowboy stuff. And we’ve learned over the years that there are much more effective strategies — that are safer for everybody — for taking people into custody.”
The local prosecutor did not find cause to prosecute based on this second question, but his report underscores how dangerous the fusillade by the task force was to the public. “There is a distinct possibility that a small child was struck by some sort of object or debris during the shooting,” he writes, adding that the child “described being hit by one of the ‘sparks’ from the officers’ gunfire.” The prosecutor also highlighted that “one bullet struck a nearby apartment building, traveling through the exterior wall, through a room, and lodged in another interior wall. Fortunately, no one was in its path.”
Despite his criticism of how the encounter unfolded, the prosecutor nonetheless found the killing of Reinoehl was justified. “Washington Law does not require officers to actually see a weapon,” he writes, “when they have probable cause to believe a person is armed and a good faith belief the person is intending use of deadly force against officers or others in an effort to escape capture.”
As it turned out, Reinoehl was armed. The prosecutor’s report describes that a .380 caliber handgun was later found in Reinoehl’s pocket, and that the “clip was fully loaded and there was no round in the chamber.” A single shell casing fired from that gun was also found in the Jetta, although the report notes “there is no way to determine when it was fired or how it came to be in the location it was found.”
While clearing the kill under state law, the prosecutor also emphasized that — even if he had decided to press charges — federal law might have prohibited him from bringing a case. Task forces operating under the U.S. Marshals service, despite being comprised of local officers, are likely immune from local prosecution, and instead would have to be charged for violations of federal law by the Department of Justice.
The Thurston County prosecutor concluded his report with a clarion call for federal oversight of the Reinoehl confrontation. “I strongly recommend this matter be reviewed by the United States Attorney’s Office or other appropriate federal authority,” he writes, “to determine if the use of force was in violation of federal law or policy.” The Department of Justice did not respond to a request for comment.
Smith, the former DOJ litigator who now serves as executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, describes the lack of local accountability for task forces operating under federal jurisdiction as a “huge problem.” In part, he says, it arises because the local rules of engagement and restrictions on officer conduct go out the window. “Rather than having the local rules apply to the federal agents, it’s just the opposite: You have federal rules that apply to the local agents on the task forces.” Those federal standards, he insists, are often fast-and-loose, and violations rarely lead to serious consequences. “There is really just no accountability. There’s no mechanism,” he says. “You can’t shine a light on the bad conduct of the feds in the same ways you can on locals, and you have a culture in the [justice] department that allows them to get away with anything.”