OLYMPIA — Washington will continue to be one of the toughest states in which to convict law enforcement officers for misuse of deadly force after a bill to ease the standard lapsed Friday.
The Senate Ways and Means Committee did not act on legislation revising the law that makes it extremely difficult for prosecutors to charge an officer with a crime after an incident in which they wrongfully kill someone.
Attempts to move a similar bill in the House ended earlier this month when the House Public Safety Committee declined to advance it.
“I’m disappointed,” said Sen. David Frockt, D-Seattle, the prime sponsor of Senate Bill 5073. “I’m not going to give up on this issue. We’ve got a lot done. It is the malice and good faith issues which are the political problem to solve.”
A law enforcement officer currently can’t be held criminally liable for using deadly force if they acted “without malice” and with a “good faith” belief that their actions were justified. Washington is the only state with the malice standard. Critics contend it protects officers from prosecution as long as their actions are not carried out with malice.
Frockt’s bill, which underwent several iterations, sought a middle position developed by prosecutors. It called for removing malice and retaining good faith. It contained language clarifying good faith as “whether a reasonable peace officer, relying upon the facts and circumstances known by the officer at the time of the incident, would have used deadly force.”
The bill also sought to boost funding for training officers in de-escalation tactics, collecting information on incidents in which deadly force is used and equipping police departments with less-lethal weapons such as Tasers.
The state’s major police officer organizations embraced the provisions on training, resources and data collection but resisted any tinkering with the standard.
“Elimination of malice has a chilling effect on officers,” Carl Nelson, executive director of the Washington Council of Police and Sheriffs, testified Wednesday in the Senate Ways and Means Committee hearing on the bill. “It makes them hesitate before they will act and puts them in increasing amounts of danger.”
Representatives of the Fraternal Order of Police, Washington State Patrol Troopers Association and Council of Metropolitan Police and Sheriffs, which represents officers in Seattle and King County, also testified against the bill.
Frockt, a committee member, asked them if there was any scenario in which malice could be removed and good faith preserved that would “get you to a different position.”
Nelson responded: “Not that I am aware of right now.”
Last year, the Legislature created the 26-member Use of Deadly Force in Community Policing task force to consider whether the standard should be altered. Members came from community groups, law enforcement organizations and state agencies.
Sen. Kirk Pearson, R-Monroe, served as a co-chairman.
Rep. Dave Hayes, R-Camano Island, who works for the Snohomish County Sheriff’s Office, and Snohomish County Prosecutor Mark Roe were members, too.
The majority, over the strenuous objections of its law enforcement members, recommended removing both “malice” and “good faith” and inserting language saying an officer could not be charged if their action was reasonably necessary given the circumstances at the time.
Hayes opposed the recommendations and said Friday he’s not disappointed in the outcome in the Legislature.
“I was not a fan of those bills,” he said. “Any time we have a standard that increases the possibility a law enforcement officer could be prosecuted for a crime for doing their job, I’m not going to be for it.”
Rep. Cindy Ryu, D-Shoreline, supported the recommendations and introduced legislation containing them but it died. On Friday, she said the issue is important enough for legislative leaders in both chambers to want to keep the conversation going.
“I hope the policy moves forward because the community-at-large, and especially the community of color, see removal of the word ‘malice’ as important to restoring the confidence we must have in our law enforcement,” she said.
She said there are those ready to make the change with a ballot initiative and she’s asking them to wait.
“I much prefer legislating through the Legislature rather than through the hammer of the initiative process,” she said. “For everyone’s interest, I think we must get the job done.”
Pearson opposed changing the standard and didn’t express surprise at the fate of Frockt’s bill.
“There was too much infighting regarding that change in the standard,” he said.
Pearson sponsored a separate bill regarding training but it too did not advance this session.
“I thought it was a logical vehicle,” he said. “What I got out of the task force was we need more training for our officers.”
The Washington Association of Sheriffs and Police Chiefs supported the bill after Frockt made revisions assuring additional dollars for training and equipment.
“I think there’s some level of disappointment because a reason we signed onto the bill was that we had confidence that it provides us tools to reduce the number of violent interactions involving law enforcement,” said James McMahan, the group’s policy director. “That has been our goal from day one. That is still our goal.”
On the positive side, he said the months of dialogue in the task force meetings and legislative hearings could help create greater understanding of concerns of community groups and cops.
“To be honest, the conversations that matter and can most help build community relations are the conversations that our police chiefs and sheriffs are already having in their communities,” he said.
Hayes shares that view.
“Community engagement is where we are going to build trust,” he said. “Changing the standard is not where we are going to build trust.”