Credit: Tony Webster
This may be the year that Washington state’s unique law overprotecting police when they use deadly force is brought in line with those of other states.
Legislators are now reviewing proposals that grew out of a task force’s recommendations for changing the state law that gives police protections from prosecution for manslaughter that no other citizen, public servant or elected official has. Anyone else in Washington state may have to convince a jury that their use of deadly force — killing someone — was justified and reasonable. But the state standard for justifiable use of deadly force is simply that the officer acted without malice and with good faith, no matter how arbitrary or even unreasonable their actions may appear to others.
A review of the task force’s work shows that the members took a very serious, fair-minded look at the issue. They weren’t unanimous in their recommendations, but a clear majority put forth steps that do indeed merit the Legislature’s attention. The main recommendation would change the wording in the law and make it possible for prosecutors to indict officers and bring the question of whether the use deadly force was justified to a jury trial.
Lawmakers themselves set up the task force last year because they recognized that there is good reason for questioning of the state’s law. After all, prosecutors have, by and large, given up on the idea of even prosecuting an officer since they — and juries — would have to read an officer’s mind and find, beyond any doubt, a malicious intent.
And the public is paying more attention because of a number of deaths over the last several years. In 2011, for instance, King County Prosecutor Dan Satterberg decided not to prosecute a Seattle police officer in the shooting of woodcarver John T. Williams, saying that no jury would have been able to find outright malice.
The issue gained more statewide recognition after a 2015 incident in which three Pasco police officers shot 17 bullets into Antonio Zambrano-Montes, killing him after he threw a rock at one of them and may have been preparing to throw another. Franklin County Prosecutor Shawn Sant decided not to prosecute the officers believing he could not secure a conviction given the state’s current law.
After a year-long study of the Pasco case in response to a request from Gov. Jay Inslee, Attorney General Bob Ferguson similarly concluded, “Washington law does not support bringing criminal charges against the involved police officers.”
The law dates from 1986, a time when getting tough on crime was politically popular. It says, in part, that when an officer had a probable cause and believed the suspect posed a threat, “a public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable.” According to Amnesty International’s analysis, no other state has a law with the “malice” standard.
Last year, rather than acting on several bills that would have made changes, the Democrats and Republicans in the Legislature set up the task force, making sure it was not excessively weighed to the advantage of either party.
The task force’s procedures were fair and impartial. The members discussed every proposal submitted and voted on all unless they were withdrawn. Any member of the could offer proposal or amendments, which the recommendation drafters could accept or refuse. No one was cut short or silenced. The task force met four times and issued its final report with recommendations on Dec.1. (The final report, materials and recorded archives of the meetings can be accessed here. There’s a wealth of information.)
Some law enforcement members on the task force accused proponents of the change of “wanting to put more police officers in jail.” Gerald Hankerson, of the NAACP, responded to this concern:
“I’m speaking for my community. … We feel, that indictment of officers will make them have second thoughts on whether they are going to pull that trigger and kill somebody or not. … Of course we feel that might not be enough because they might get to trial and found not guilty, but at least for us in the interest of justice the wheels of justice have spun.”
Ultimately, the big change came down to just four words — the task force recommended replacing “malice” and “good faith” with “reasonable.” The task force is agreeing with expert testimony that Supreme Court decisions support a standard of reasonableness. In a recommendation that had a lengthy discussion and several amendments, the task force voted 14 votes in favor, 10 opposed with two members absent. The recommendation reads:
“A public officer shall not be held criminally liable for using deadly force if a reasonable officer would have believed the use of deadly force was necessary in light of all the facts and circumstances known to the officer at the time.”
This is the language, picked up in several bills introduced this session, that would bring Washington’s law in line with the reasonable officer standard used in many other states.
A proposed recommendation to keep “good faith” in the law was not approved by a vote of 5 in favor, 14 opposed, and 7 abstaining or absent. Any claims by criminal-justice representatives that they did not have a voice or that the lack of good faith language was an oversight are false. (On TVW, you can find a long discussion on the change in wording during the morning of the last meeting, at marker 1:05:00.)
Task force member Sen. David Frockt, D-Seattle, said in an interview that he put all of the group’s recommendations in a single bill, which will have a hearing Tuesday, because the whole package will decrease the number of deadly encounters between police and citizens. The other recommendations from the task force include proposals for better training of new and experienced officers, better data collection and safer ways for citizens to officially comment on police misconduct.
The public expectation that our justice system provides a public trial to establish when ambiguous actions are legally justified must apply to all, with no exceptions for police. For 30 years, Washington’s law has shielded police from facing jury trials to determine whether they are criminally liable when they use deadly force. Changing the wording in the law does not cost the state a penny. And Gov. Jay Inslee’s office has expressed support for the task force’s recommendations. Will this Legislature follow the recommendations of its own task force and correct the unequal shielding of police from public accountability granted by the 1986 Legislature more than a generation ago?
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