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Scott W. Kinkele




Scott W. Kinkele was one of my closest friends. We grew up together on Ashbury Street in San Francisco. He was my next door neighbor. We played basketball, tennis, and soccer.  We laughed, built model cars, and rode bikes across the Golden Gate Bridge. Scott was a good young man with integrity. He graduated from West Point and earned LT. in the US Navy.  A convicted felon shot and killed Scott while he was driving in Anacortes, WA in July 2000.

I miss you Scott. Love your friend,  

Shomari


Scott Kinkele, Lieutenant (jg), United States Navy




THIS AUGUST 25, 2003 "SEATTLE POST-INTELLIGENCER'S ARTICLE"
EXPLAINS WHAT HAPPENED TO SCOTT KINKELE


Police sued over failure to check gun owner's background
Anacortes officers seized a felon's guns -- then gave them back; less then a year later, Scott Kinkele was dead

By M.L. LYKE
SEATTLE POST-INTELLIGENCER REPORTER

SKAGIT COUNTY -- Three small American flags, stuck in a barbed wire fence, wave over the roadside memorial on state Route 20.

Scott Kinkele's climbing ropes are draped on the wooden cross below. An ice pick and a dusty old sailor's hat rest on his memorial stone, along with a dried-up spray of carnations.

  Kinkele
  Kinkele

This is the grassy bank near Anacortes where Kinkele's Subaru slid to a stop that awful night in July 2000.

The 23-year-old Navy officer was dead at the wheel, shot by a convicted felon out cruising the highways with two friends. They had been drinking and were looking for cheap thrills, illegally armed with a Glenfield Model 25 .22-caliber rifle and a Remington 870 12-gauge shotgun.

Those guns are now at the heart of a civil lawsuit that raises troubling questions about when -- and if -- police in Washington state should run background checks on gun owners.

  Berriault
  Berriault

The suit, filed in Skagit County Superior Court earlier this month on behalf of the Kinkele family, alleges that police confiscated and then negligently returned the two guns to Eben Berriault in November 1999 -- some eight months before Kinkele's killing.

The police did so without running a background check.

Berriault, now serving a 55-year prison term for the Kinkele killing, has a criminal past that includes a manslaughter conviction for helping beat a 43-year-old Chelan County man to death with a rock in 1983.

He also served time for criminal trespass and burglary convictions in the 1990s.

Convicted felons are not allowed to possess firearms under state law.

"They put the weapon of death in the hands of a murderer," said Shawn Briggs, the Tacoma attorney who filed the civil suit against Berriault and the city of Anacortes.

Attorneys for the city, which has until the end of the month to respond to the suit, say the case is not so simple.

"The fact that Anacortes Police Department had limited contact with Eben Berriault does not make the city responsible for his decision to commit a crime nearly a year later," said Seattle attorney Jayne Freeman.

"To say that the Anacortes Police Department killed Scott Kinkele is too much of a stretch and unfair to these police officers."

Guns discovered, returned

 The story begins Nov. 15, 1999, when police searched Berriault's property on K Avenue in Anacortes.

Officers had a warrant to look for drugs and stolen property in a separate area of the house, the living quarters for Berriault's younger brother.

During the search, officers discovered the 12-gauge shotgun and .22 rifle in Eben Berriault's bedroom closet. The officers confiscated the two guns -- the same guns that would be used in the July 2000 sniper spree.

A month later, though, Anacortes police returned the firearms to Berriault. Because the 35-year-old construction worker andfather of two was not the subject of the search warrant, officers did not run a background check.

The civil lawsuit served on the city of Anacortes disagrees with that reasoning.

Lawyers for the Kinkeles argue that return of firearms to a felon "falls below the accepted minimum standards of police procedure."

That begs the difficult question of whether there are, in fact, minimum standards.

Rule change from place to place

 In Washington, policies and procedures regarding return of weapons appear to be far from consistent.

At the Washington State Patrol, troopers returning a confiscated weapon -- whether it is taken for safe-keeping or evidence -- must first ask for proof of ownership, then run a criminal check to see that the owner can legally possess the weapon.

"That's our policy," State Patrol Capt. Glenn Kramer said.

But representatives of state oversight agencies for police and sheriff's departments say procedures can change case by case, jurisdiction by jurisdiction.

"Each department kind of does their own thing," said Larry Erickson, executive director of the Washington Association of Police Chiefs and Sheriffs.

Legal questions governing return of confiscated weapons are also murky, according to Pam Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys.

"It is not clear that federal law allows us to do a background check before returning a firearm to an individual," Loginsky said.

Still, Briggs, attorney for the Kinkele family, maintains that Anacortes officers were out of line in the Berriault case.

"We've spoken to many experts from other police departments and national experts who say this was a glaring failure in police procedure," he said.

The civil suit maintains that the Anacortes Police Department, in fact, had no actual policy or procedure in place.

Anacortes city officials were asked in a recent public disclosure request to describe such policies and procedures. Attorneys for the city are in the process of preparing a response.

They did forward a Police Department press release, dated Sept. 14, 2000, that notes Berriault was "neither under investigation nor suspected of any criminal activity related to the execution of the search warrant" and added that "the Anacortes Police Department was not aware of Berriault's criminal background."

Whether or not they should have been is a question to be hashed out in federal court.

But a much larger one will loom over the proceedings.

Could anything have stopped Berriault that boozy summer night in July 2000?

The question haunts many dragged into the chain of events that day.

 'The wrong night'

 Earlier that day, Berriault, his half-brother Seth Anderson, and Adam Moore, the back-seat passenger who later described the events for investigators, downed beers in a downtown Anacortes tavern.

By late afternoon, they were chasing shots of vodka with hits of Budweiser, and talking about heading upland to poach some deer.

About 8 p.m., they loaded up the 12-gauge shotgun and .22 rifle and roared north in a blue Pontiac Firebird for the great "deer" hunt, stopping to stock up on oil for the leaky car, cigarettes and a 12-pack of Molson Ice.

Several times that night, Moore said, Berriault told him: "You picked the wrong night to hang out with us, because we're going to prison."

The shooting spree apparently began on state Route 20, near Sedro-Woolley.

There a woman reported seeing a rifle extend from the passenger side of a blue car, and three men shooting at signs.

But the woman could remember only part of the license plate.

The next drive-by target was a dog. After Berriault shot it and heard it yelping, Anderson and Berriault broke out in laughter, according to Moore, who said Berriault described shooting as "great therapy."

Around 11 p.m., the trio drove up on a Honda and fired a round at the car. The woman driving it heard loud bangs and pulled over. She didn't realize she'd been shot at and didn't report the incident until the next day.

A half-hour before the trio caught up with Kinkele -- who was heading home to Naval Air Station Whidbey Island after a hike at Mount Rainier -- a Skagit County sheriff's deputy pulled over the blue Pontiac Firebird for speeding.

The deputy, though, didn't know about the prior shootings, didn't smell alcohol and didn't notice any suspicious behavior. He also didn't see any firearms, so he let the three off with an oral warning.

Around midnight, the trio spotted Kinkele's green Subaru on state Route 20.

Berriault told Anderson, the driver, to speed up. He drew a bead on his target with the 12-gauge shotgun and fired.

The slug hit Kinkele in the back of the head, killing him instantly.

He was the youngest in the U.S. Naval Academy class of '98 to graduate. And he became the first in his class to die.

In their civil lawsuit, the Kinkele family seeks damages for expenses, loss of earnings and emotional and mental suffering, particularly that of Scott's mother, 53-year-old Mary, who died March 7.

After her death, the family filed a $15 million damage claim against the city.

Briggs says it is the city's failure to respond to that claim that led to the civil lawsuit, which stresses Scott's killing as a cause in his mother's death.

After her son's death, Mary Kinkele had trouble sleeping at night, suffered from depression, and was enraged that her son's killers pleaded guilty to first-degree murder, sparing themselves the death penalty, Briggs said.

When Seth Anderson hanged himself with a noose made of bed sheets in his prison cell in 2001, Mary Kinkele said: "When you can't get justice in the courts, sometimes you get justice from God."

Briggs says she went to her grave seeking justice, "trying to give some meaning to an otherwise meaningless death."

And that, he said, is the momentum behind the current lawsuit. "The Kinkeles are not money-driven people. They want to see the right thing done."

In the meantime, Scott Kinkele's killer is in prison, the shotgun is in evidence storage, and the roadside flags, faded from the sun and tattered by barbed wire, wave over a roadside memorial for a young Naval Academy graduate who lived like there was no tomorrow.

"Take care," Scott Kinkele advised his friends, "and live life to the fullest."

P-I reporter M.L. Lyke can be reached at 425-252-2215 or m.l.lyke@seattlepi.com