Arla Shephard Bull

For the Kitsap Sun

Two Shelton Police officers may face charges of assault after they pepper sprayed and repeatedly struck a homeless man asleep outside of St. David of Wales Church in Shelton.

The recommendation comes from the Thurston County Sheriff’s Office, which completed an external investigation in early July into the May 25 incident.

The officers had been trying to move Nicholas Heflin, 24, from the top of the staircase at the south side of the church, which is an emergency homeless shelter in the winter, because of an ongoing request from the church to remove trespassers from the property in the summer.

Body camera footage shows that after attempting to make contact with Heflin six times, three times at the bottom of the staircase and three times at the top of the staircase trying to wake him, an officer began to pepper spray Heflin.

Fifteen seconds elapsed between the first time an officer tried to wake him and when the officer began to pepper spray.

After Heflin starts to move, both officers begin to strike him with their hands for more than five minutes.

“It does not appear that this level of force was necessary given Heflin’s lack of aggression, nor was it reasonable when you consider the circumstances surrounding the contact,” wrote lead investigator Mitch King of the Thurston County Sheriff’s Office in a report.

King noted that the officers “intentionally assaulted Nick Heflin and thereby recklessly inflicted substantial bodily harm,” which constitutes a felony charge of second-degree assault.

“Since the use of force was not necessary or reasonable, it is therefore unlawful,” he continued.

Both officers told investigators that their use of force was justified and that they believed Heflin had a weapon and might have attacked them.

The Kitsap Sun is not naming the officers because they have not yet been charged with a crime.

The Mason County Prosecutor’s Office is in the midst of reviewing the Thurston County report, and the Shelton Police Department is also conducting an internal investigation.

Heflin had been homeless for about two months following a domestic dispute with his mother when the police officers found him at about 1:40 a.m. on May 25, asleep outside of St. David’s.

The courts had enacted a temporary protection order requiring Heflin to leave home, according to the Thurston County report.

When the officers reached the top of the staircase, one officer warned Heflin to show his hands or he would begin to pepper spray him.

After Heflin was sprayed in the face, he rolled over and showed his hands before rolling onto his stomach and coming up to his knees, according to body camera footage.

In the officers’ testimony to investigators, they both said they feared Heflin would attack them, and due to the confined space and steep stairs, they wanted to get him into custody as quickly as possible.

One officer wrote in a use of force report to the Shelton Police Department that the strikes had “little to no effect” on Heflin and that he continued to strike Heflin until he could feel him comply.

In the use of force report, that same officer said that Heflin continued to fight back in a “chaotic struggle” that at one point caused the officer to lose his balance with his back to the stairwell.

At one point, both body cameras fell off the officers, but the audio from the cameras picked up a man “screaming for help” and “the sound of someone being struck,” according to the Thurston County report.

One of the officers used a stun gun on Heflin and soon other officers arrived and helped place him in custody. According to the use of force report, a knife was retrieved from Heflin’s back pocket and a second knife was found in the bedding.

In his interview with investigators, Heflin said he thought the landing was a safe place to sleep and that he didn’t recall hearing the officers’ attempts to wake him.

He said he hadn’t been drinking or using any type of narcotics and that the first thing he could remember was getting hit.

“I just remember being in a lot of pain,” he said. “I couldn’t do nothing. I wasn’t trying to do anything because I couldn’t move … I thought they were going to kill me.”

Heflin said he thought the officers were men trying to rob or assault him and that he never fought back. He stated that he was hit so hard and so many times that he defecated himself during the incident, according to the report

Heflin was taken to Mason General Hospital with numerous bruises and cuts to the face and later taken to Mason County Jail after his arrest for trespassing.

Mason County Prosecutor Michael Dorcy declined to press charges against him.

Heflin now has “extensive medical issues” and an appointment at Harborview Medical Center in Seattle this month. One month after the incident, one of his eyes still shows blood trauma from the event.

Dorcy said his office is still reviewing the recommended charges against the officers and may send the decision to another prosecutor’s office to avoid the appearance of a conflict of interest.

Use of force is lawful “whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer’s direction,” according to state law.

The law requires proof that an officer acted with “malice.”