LANGLEY — The Island County prosecutor won’t charge Langley Police Chief David Marks with a crime in connection with a use-of-force incident last November.

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

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

“This was not as easy decision,” Banks wrote. “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 hired an expert in police use of force to look over the reports and Banks’ memorandum. He said discipline is possible, but based on the police department’s policies, it doesn’t appear 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 his use of force was unwarranted and claims that the suspect was resisting arrest and threw himself to the ground.

That differs from the accounts of two other officers at the scene.

Marks declined to be interviewed about the incident but was compelled by the mayor to write his version of events.

Callison said he 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 transients who cause problems in the city and are challenges.

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

Documents obtained via 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.

Procopio left before police arrived, but Marks located him near a public restroom.

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

Langley Police Officer Mason Shoudy arrived 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.

Brewer and Shoudy told the investigator they never witnessed Procopio resist in any way.

Brewer 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 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.

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 appeared Marks took a hard “leg sweep” on both of Procopio’s legs.

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 that the man’s feet were lifted off the ground, Banks wrote.

In his statement, Marks told a different story. He wrote that Procopio resisted when he handcuffed and 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 questioned Procopio but only got nonsensical answers.

Brewer reported the incident to a superior officer, as required by the department’s policy.

Sheriff Mark Brown wrote to Callison, explaining that his deputy believed Marks used 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 Brewer.

Banks wrote that both officers should be commended for taking possible personal, and professional, risks by speaking up.

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 a criminal act, a prosecutor must prove beyond reasonable doubt that Marks kicked Procopio’s legs with intent to harm him and for no lawful purpose, Banks wrote.

With regard to the pain compliance holds, Banks wrote that it would be unlikely 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.

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.

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 stun gun on him.

One of the guards sustained a knee injury.

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This story first appeared in the South Whidbey Record.