Police accountability agenda loses some teeth in WA Legislature

While some police reforms are advancing, efforts to create stronger community oversight boards and make it easier to sue police for misconduct have stalled. 

Seattle police officers form a line to drive protesters down a street in Seattle's Capitol Hill neighborhood, July 25, 2020. Over the summer of 2020, Seattle Police Department officers often faced protests in the street and at times used riot gear, gas masks, aerosol irritants and blast balls to disperse crowds. A bill to restrict police use of tear gas and neck restraints is advancing in Washington's Legislature, but some police accountability measures seem to have fizzled out. (Matt M. McKnight/Crosscut)

After last year’s Black Lives Matter protests, Washington state lawmakers set out to enact a sweeping collection of police accountability reforms in 2021. 

Some of those measures are advancing swiftly through the Legislature, including a proposal to ban chokeholds and a bill to beef up the state’s system for decertifying police officers. 

But other police reform bills have stalled — including a plan to end the qualified immunity that can shield officers from civil lawsuits and a measure to stop arbitrators from reversing police discipline.

The failure of those efforts, along with another bill that would have created community oversight boards for police, has led some community advocates to question how committed legislators are to holding officers accountable for misconduct or excessive uses of force.

Those frustrations come on the heels of several high-profile killings of Black people by police last year, including the deaths of George Floyd in Minneapolis; Breonna Taylor in Kentucky; Ahmaud Arbery and Rayshard Brooks in Georgia; and, more locally, Manuel Ellis in Tacoma.

“There should be no pats on the back at this point,” said Lyn Idahosa, executive director of the Federal Way Black Collective. “No one in the community is like, ‘We are so ecstatic now because our lives are so much safer.’ “

“No one is safer. No one is saying that,” added Idahosa, who also is a core member of another group, Washington for Black Lives.

Even Seattle Mayor Jenny Durkan is unhappy with the Legislature’s decision to punt on overhauling arbitration, a process that frequently reinstates officers who have been fired.

“If we want to rebuild community trust in police departments, we have to show that we've earned that trust," Durkan said Friday. She called fixing arbitration "probably one of the most critical reforms" needed to make that happen.

State Rep. Jesse Johnson, D-Federal Way, said many important bills are moving forward — although he, too, is disappointed with the failure of the qualified immunity bill, House BIll 1202, as well as the bill to require community oversight boards, House Bill 1203, which he sponsored. 

Still, Johnson said the overall package of police accountability legislation advancing in Olympia represents a monumental improvement over the way things have operated in Washington state for decades.

When developing the slate of bills last year, the idea was to “shoot for the moon,” he said.

“And even if we land among the stars, so to speak … we are having big shifts with what is happening in our state,” Johnson said. 

Major legislation moving forward

Lawmakers are advancing several bills identified as priorities by the Washington Coalition for Police Accountability, a group that includes family members of people killed by police. 

One such measure, Johnson’s House Bill 1054, seeks to regulate police tactics in the wake of last year’s global protests. 

The measure would ban the use of no-knock warrants, in which police enter a home without announcing themselves. That was the kind of warrant that Louisville, Kentucky, police used when entering Taylor’s home last year, shooting and killing her during the encounter.

Johnson’s bill would also ban officers from shooting at moving vehicles; ban the use of tear gas in most circumstances; and ban police from using military equipment acquired from the federal government. 

It would also make it unlawful for police to use chokeholds. 

Other types of neck restraints wouldn’t be universally banned, but officers could use them only “when necessary to protect against an imminent threat or serious physical injury or death.”

That’s the same standard another measure, House Bill 1310, would set for any police use of deadly force. That bill, also sponsored by Johnson, would require officers to “use reasonable care” when deciding whether to use physical force. This would mean employing de-escalation tactics when feasible and considering retreating or calling for backup as alternatives.

Groups representing police are split over the bills. The Washington Fraternal Order of Police, which represents more than 2,500 law enforcement officers throughout the state, has voiced support for Johnson’s use-of-force and police tactics bills. Other police groups, including the Washington Association of Sheriffs and Police Chiefs and the Washington Council of Police and Sheriffs, have testified in opposition. 

Another proposed major shift in policy would revamp the process for decertifying officers. Senate Bill 5051 would increase the list of offenses that would cause officers to have their certification revoked — a step that would prevent them from moving to another department and returning to work as cops.

The decertification measure would also close a loophole in which officers who retire or resign in lieu of termination can evade investigations and jump to another agency without their misconduct ever being fully investigated.

"That is the teeth for all the reforms that we are making," said state Sen. Jamie Pedersen, D-Seattle, the sponsor of the decertification bill.

Other bills advancing in the Legislature would require police agencies to report all uses of force to the state Attorney General’s Office, Senate Bill 5259, and create an independent agency to investigate incidents in which police kill members of the public, House Bill 1267

Danielle Bargala Sanchez, a member of the coalition for police accountability, said she’s mindful that it takes enormous effort to shift a culture of policing that has been built on racist practices for hundreds of years.

“For us to be making progress right now and getting that ball rolling, the change starting, is very important,” said Bargala Sanchez, whose foster sister, Renee Davis, was killed by King County Sheriff’s deputies in 2016.

Some measures fall by the wayside

Still, Bargala Sanchez is disappointed in the failure of a measure that would have allowed the Attorney General’s Office to conduct independent prosecutions of police who kill in the line of duty, House Bill 1507. She said that’s an important change to make because prosecutors and law enforcement work closely with one another in the criminal justice system, making it “a huge conflict of interest” for local prosecutors to be the ones tasked with bringing charges against officers.

Kamau Chege, director of the Washington Community Alliance, wrote in a text message that Democratic lawmakers, who control both chambers of the Legislature, “are passing the low-hanging fruit.” 

“It’s great, but it’s inadequate without structural enforcement mechanisms outside of law enforcement,” Chege said. “We see police break the law and not be held accountable all the time. So banning certain tactics or putting new use-of-force rules on the books is great only to the extent that police actually face consequences for breaking them.” 

In particular, Chege thinks lawmakers missed an opportunity this year by failing to advance the bill to get rid of qualified immunity for police, House Bill 1202. That measure would have created a state cause of action that would have allowed citizens to sue police who overstep their constitutional authority. 

Qualified immunity protects an officer from being held liable for violating someone's constitutional rights, unless the violation was so “clearly established” in the law that any reasonable officer would have known the action to be unlawful.

But Enoka Herat, police practices and immigration counsel at the American Civil Liberties Union of Washington, said that standard has been interpreted so narrowly that victims must find a prior court ruling with facts nearly identical to their own in order to succeed with a lawsuit. In practice, the doctrine has denied justice for even the most egregious acts of misconduct, Herat said.

“A lot of judges have spoken out and said, 'My hands are tied because of this doctrine, I have to dismiss the case,' ” Herat said.

The ACLU-WA supported another measure that would have eliminated the ability of arbitrators to overturn disciplinary measures imposed on police officers. That measure, Senate Bill 5134, sponsored by Democratic Sen. Jesse Salomon of Shoreline, did not advance from a Senate committee. 

Mayor Durkan has also been working behind the scenes to try to overhaul police arbitration, a change she said needs to come from the state level. Recently, an arbitrator’s decision to reinstate a Seattle officer who was fired for punching a handcuffed woman in the eye led a federal judge to decide that the Seattle Police Department needed to remain under federal supervision

Both Salomon and Durkan said opposition from organized labor unions killed efforts to reform the arbitration process for police, because of the fear that such measures could erode collective bargaining rights more broadly. 

Joe Kendo, lobbyist for the Washington State Labor Council, wrote in an email that Salomon’s bill “tilted too far in the favor of police management” and would have amounted to “the wholesale dismantling of workers’ rights for law enforcement employees.”

He noted the labor council supported another arbitration-related measure, Senate Bill 5055, which would change the way arbitrators are selected. Both Durkan and Salomon said that legislation doesn’t do enough to fix the core problem.

State Rep. Debra Entenman, D-Kent, said she thinks the ability to hold police accountable through civil lawsuits is an important piece of the puzzle, along with arbitration reform. She hopes the Legislature will revisit both proposals next year and that they will have more success.

Johnson said the same thing about his bill to require community oversight boards for police departments. Those boards would be charged with fielding complaints about law enforcement and conducting investigations of police misconduct, as well as making recommendations about discipline. He hopes that measure gets a warmer reception in 2022.

Being asked to wait yet again, however, is hard to stomach for many people who feel they’ve been continually told to be patient and wait their turn, said Kurtis Robinson, the vice president of the Spokane chapter of the NAACP and steering committee member of Washington for Black Lives.

“It’s the same thing that our communities of color have been dealing with time and time again here in the Americas: ‘It’s OK, just wait. We’ll get there, just wait,’ ” Robinson said.

“We’re still waiting.”

Please support independent local news for all.

We rely on donations from readers like you to sustain Crosscut's in-depth reporting on issues critical to the PNW.


About the Authors & Contributors

Melissa Santos

Melissa Santos

Melissa Santos is formerly a Crosscut staff reporter who covered state politics and the Legislature.