The Island County prosecutor declined to charge Langley Police Chief David Marks with a crime in connection with a use-of-force incident that occurred last November.

Prosecutor Greg Banks reviewed documents from a Washington State Patrol criminal investigation into an incident in which Marks allegedly kicked a handcuffed trespassing suspect’s feet from under him, causing him to fall face first onto the ground.

Banks concluded that it is unlikely a jury would convict Marks of gross misdemeanor assault.

“This was not an easy decision,” Banks wrote in a six-page memorandum. “Chief Marks’ behavior was, even if only negligent, disturbing and well below the bar we set for professional police officers in our community.”

Langley Mayor Tim Callison said he’s hired an expert in police use of force to look over the police reports and Banks’ memorandum as part of an administrative review. He said discipline is possible, but based on the police department’s policies, it doesn’t appear to him that Marks violated the rules.

“But I’m not an expert, which is why I hired one,” he said.

Marks, who has led the four-person department for four years, denies that his use of force was unwarranted and claims that the suspect was resisting arrest and threw himself to the ground, which differs from the accounts of two other officers at the scene. He declined to be interviewed in the criminal case but was compelled by the mayor to write his version of events.

Such a “Garrity statement” cannot be used in a criminal case, so Banks did not look at it in his review.

Callison said he also wants the expert, Glen Carpenter, to look at the department’s policy and training to see if anything should be changed. He said police officers in the city will have to continue dealing with four or five transient individuals who cause problems in the city and are challenging to handle.

“It’s dreadful that these individuals are in a catch-and-release cycle,” he said.

Documents obtained through public records requests to the city of Langley and the prosecutor’s office describe the Nov. 20, 2017, incident.

An employee at the Star Store reported that Camren Procopio, 31, was trespassing in the store.

Procopio, who has serious mental health and cognitive problems, has a history of trespassing in businesses and resisting arrest. Procopio left before police arrived, but Marks located him near the public restroom on Anthes Avenue.

Marks called for backup and waited until Deputy Thomas Brewer of the Island County Sheriff’s Office arrived to approach Procopio. Marks told Procopio that he was under arrest. Banks noted in his review that it’s permissible for an officer to arrest someone for trespassing, but it’s much more common for them to simply cite the person.

Langley Police Officer Mason Shoudy showed up at the scene as Marks ordered Procopio to turn around and put his hands behind his back.

Brewer would later tell an investigator that Marks was very aggressive from the beginning of the contact. Both Brewer and Shoudy told the investigator that they never witnessed Procopio resist in any way that day.

Brewer also told an investigator that aggression is not out of the ordinary for Marks.

“He always has an aggressive demeanor to where it escalates the situation and other deputies have told me they have the same experience,” Brewer said. “Whenever he shows up it’s just like, you know, you kind of sigh and you’re like ugh.”

Marks used a “pain compliance hold” to get Procopio into handcuffs, Banks wrote in his memorandum. Procopio told the officers that his right leg hurt and he wasn’t able to put weight on it. Marks told Procopio, who was handcuffed, to spread his legs to be searched.

Marks became frustrated because Procopio was reacting slowly, the other officers testified.

“After less than a minute, Chief Marks kicked Procopio’s foot or feet, causing Procopio to free fall face first on the concrete,” Banks wrote.

Shoudy said it looked like Marks took a hard “leg sweep” on both of Procopio’s legs.

“I think maybe he was a little heated and … it got away from him a little bit,” Shoudy said.

After the officers assisted Procopio to his feet, Marks walked him to the patrol car. Marks again applied a pain hold to Procopio’s wrist and elevated Procopio’s wrist high enough behind his back that the man’s feet were lifted off the ground, Banks wrote.

In his statement, Marks tells a different story. He wrote that Procopio resisted when he handcuffed him and when he searched him. Procopio threw himself against Marks and then threw himself to the ground, landing in a cross-legged position, Marks wrote.

“It should be further noted,” Marks wrote, “that Procopio has assaulted law enforcement officers in the area and has been pepper sprayed by law enforcement. Procopio has multiple alerts in our system and is known to resist arrest. Procopio has injured law enforcement personnel and is known to resist arrest by throwing himself to the ground.”

A state patrol detective also questioned Procopio, but only got nonsensical answers.

“The recent event of tool abdominal mass,” Procopio said, “is a incursive the actions myself Officer Marks illegal world before do do [sic] wish a complete choreographic oration?”

Brewer reported the incident to a superior officer, as required by the department’s policy. Island County Sheriff Mark Brown wrote a letter to Callison, explaining that his deputy believed Marks used techniques and a level of force that may have been unnecessary and excessive.

Brown wrote that reporting the incident required “a significant amount of courage on the part of Deputy Brewer.” Banks echoed the sentiment, writing that both officers should be commended for taking possible personal and professional risks by speaking up.

In his analysis, Banks rejects Marks’ contention that Procopio threw himself to the ground.

“Based on the aggressive tenor of the entire contact and the observations by the two officers, I conclude that it is highly unlikely that Mr. Procopio was responsible for his fall,” Banks wrote.

To prove it was a criminal act, however, the prosecutor must prove beyond a reasonable doubt that Marks kicked Procopio’s legs out with intent to harm him and for no lawful purpose, Banks wrote. Shoudy’s testimony suggests he felt Marks lost his temper and just kicked too hard unintentionally, Banks pointed out.

With regard to the pain compliance holds, Banks wrote that it would be unlikely that a jury would find the conduct constituted assault since officers are trained to use the amount of force they feel is necessary and Procopio has a history of resisting arrest.

According to court documents, Procopio’s felony history consists of two cases in 2015, but he has been contacted by police many times since then.

On March 5, 2015, a Langley police officer witnessed Procopio sharing a bowl of marijuana with an underage boy on a park bench. The officer arrested Procopio, but he went limp, dropped to the ground and refused to get up. The officer had to call a deputy to help lift him and place him in a police car. Procopio was charged with distributing marijuana to a minor and resisting arrest.

Seventeen days later, Procopio attacked a corrections deputy in the Island County Jail. He ended up wrestling on the ground with two of the corrections deputies before one of them deployed a taser on him. One of the guards sustained a knee injury.

Prosecutors charged him with third-degree assault of an officer and malicious mischief.

Procopio was found mentally incompetent to stand trial by doctors at Western State Hospital. He was treated at the hospital until his competency was restored.

In concluding his report, Banks wrote that Marks’ actions in kicking the legs out from under a handcuffed suspect was wrong, even if he can’t prove it was a criminal act.

“Nevertheless, it seems that there should be a careful review of his actions in light of city policies,” he wrote, “and a sanction imposed that is commensurate with the serious nature of the conduct.”

Callison said he hasn’t imposed any kind of discipline on Marks, at least so far, because he doesn’t feel the chief violated the city’s policy on use of force. It states that “officers should use only that amount of force that reasonably appears necessary given the facts and circumstances perceived by the officer at the time of the event to accomplish a legitimate law enforcement purpose.”

Still, the mayor said he will wait to make a final decision until after he hears the conclusions from the use-of-force expert, which he expects to happen in a week or two.