The Spokane County Prosecutor’s Office will not seek criminal charges against the two sheriff’s deputies who used a stun gun and a neck hold to subdue a man outside of a Moran Prairie fitness center in June 2013.
Will Berger, 34, died of oxygen deprivation sustained in the confrontation with Spokane County Sheriff’s deputies Shawn Audie and Steve Paynter. The deputies responded after calls of disturbing behavior from Berger, who struck a paper towel dispenser in the gym and menaced other gym-goers. Berger’s father described the behavior as a manic episode stemming from a medical condition.
In his decision, deputy prosecutor Jack Driscoll wrote that Berger was “the initial aggressor” in the incident and did not comply with multiple commands from deputies to stop resisting.
Audie told investigators that after he fired his Taser at Berger a second time he threw it on the ground.
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Berger grabbed it and attempted to use it against Audie as the deputy tried to put Berger in a neck hold, Audie told Washington State Patrol investigators. Audie’s Taser, tested by investigators, showed a third “erratic” discharge about 30 seconds after the second shot, according to investigative reports.
No other witnesses said they saw Berger fire the Taser, according to the reports.
Witnesses at the gym told investigators that Berger began acting erratically and talked of dying. A cellphone video taken at the scene shows Berger pacing back and forth, muttering “uh oh” to another gym-goer.
Bill Berger, Will’s father, said Thursday he was not surprised by the findings. The elder Berger has launched a campaign, traveling to communities throughout the state, seeking support for legislation that would require all law enforcement agents to undergo crisis intervention training.
“It shouldn’t take a year and almost a month to determine if a crime was committed,” Bill Berger said Thursday.
The Will Berger case is the last outstanding officer-involved investigation from 2013. Five men died at the hands of Spokane area law enforcement last year, and the prosecutor’s office ruled the actions of officers in each of those cases justified.
Will Berger’s official cause of death was oxygen deprivation to the brain, according to an autopsy. Audie placed Berger, after two ineffective shots from the stun gun, in a neck hold designed to restrict blood flow.
Driscoll said Audie’s use of the hold, called a “vascular neck restraint,” was justified given the threat posed by Berger. Audie is a certified instructor of the technique, according to Driscoll’s notes.
Sheriff Ozzie Knezovich, who previously said he supported the deputies’ actions, could not be reached for comment Thursday afternoon.
Bill Berger said he’s continuing to see support in communities for his legislative request, but many local law enforcement agencies are concerned about the cost for the training.