OLYMPIA — A state law on the use of deadly force by police should be changed to make it less difficult to charge an officer with a crime after an incident in which they wrongfully kill someone.
That’s the major conclusion of a special task force which spent the past six months trying to chart a course for preventing violent and deadly encounters between law enforcement officers and citizens.
A narrow majority of members voted Monday to recommend rewriting the state law to deal with what they deemed a nearly insurmountable legal barrier to prosecuting officers involved in a wrongful death of another person.
Under the existing law, an officer 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.
Members of the Use of Deadly Force in Community Policing panel want the terms “malice” and “good faith” removed and new language inserted that says an officer could not be charged if their action was reasonably necessary given the circumstances at the time.
That is among 15 recommendations the panel is sending to Gov. Jay Inslee and lawmakers for consideration in the 2017 session. A final report is due Thursday.
Other suggestions involve collecting data on use of force by officers, training in de-escalation techniques, outfitting police with less lethal weapons and recommendations for investigating deadly incidents.
Sen. Kirk Pearson, R-Monroe, a co-chairman of the panel, didn’t back every recommendation but said in totality they offer a path toward reducing the potential for violent interactions between cops and others.
“It was an amazing day,” he said after Monday’s marathon 10-hour meeting.
State lawmakers set up the task force to review existing laws, practices and training programs regarding use of deadly force in Washington and other states, and to recommend ways to reduce the number of violent interactions.
Its 26 members represented a diverse assemblage of those most directly impacted by any eventual outcome. They included police officers and chiefs, prosecutors and public defenders, and leaders of cities and counties. Also on the panel were leaders of the NAACP, Latino Civic Alliance, Northwest Immigrant Rights Project, the Governor’s Office of Indian Affairs and state commissions for Hispanics, Asian Pacific Americans and African Americans, to name a few.
Pearson served as a co-chairman with Rep. Roger Goodman, D-Kirkland. Rep. Dave Hayes, R-Camano Island, who works for the Snohomish County Sheriff’s Office, represented the House Republican Caucus.
Snohomish County Prosecutor Mark Roe represented the state’s 39 elected prosecutors and Snohomish County Councilwoman Stephanie Wright served on behalf of the Washington Association of Counties.
The panel met four times. During their final meeting, members approved 15 recommendations and rejected six others.
They want the state to collect more detailed data on use of deadly force incidents, including information on injuries suffered by officers and payouts as a result of legal actions.
They also want the state to help police departments buy less lethal weapons and provide adequate funding for community mental health services.
Pearson pushed through a recommendation to require that all cadets, as part of their training, gain experience patrolling a minority community alongside a veteran officer. This will give the cadet experience interacting with minorities and a chance to learn from seasoned officers, he said.
Cops from small towns “don’t know how to deal with inner cities,” he said. “Even if you don’t work there you need to know what it’s like and the concerns of those communities.”
The panel also recommended adopting a practice used in Snohomish County whereby officer-involved shootings are investigated by an external team of experts rather than by detectives from the department where the officer works.
Such a team of detectives in Snohomish County investigated the 2008 line-of-duty shooting by former Everett police officer Troy Meade.
That investigation led to criminal charges against Meade, who shot an intoxicated man from behind multiple times while the man was seated in his vehicle. A jury acquitted Meade in 2010.
The state task force rejected involving a special independent prosecutor in such cases.
Much of the conversation in the final meeting centered on what changes, if any, to make in the existing law on use of deadly force. While 39 states have some form of law dealing with police use of deadly force, Washington has the only statute containing the malice standard.
Sen. David Frockt, D-Seattle, put forth the proposal approved by the group.
It replaces “malice” and “good faith” with language that officers would not be criminally liable if their use of deadly force was reasonably necessary “in light of all the facts and circumstances known to the officer at the time” of the incident.
Roe and Kelly Harris, of the Association of Washington Cities, recommended axing malice and retaining the good faith standard. They suggested language clarifying that good faith is “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.”
Those representing the law enforcement community recommended the law not be amended.
That position frustrated members of a coalition of community groups on the panel.
They responded sharply when Lt. Travis Adams, of the Washington State Fraternal Order of Police, proposed making no change until the additional data is collected.
Karen Johnson, of the Black Alliance of Thurston County, praised Adams and other law enforcement officers on the panel for their service but expressed disappointment in their intransigence.
“Why is it not even up for conversation for you to join with us and raising the banner high to say, ‘Unjustified killings, not in our state’,” she said.
A short time later, Kerry Zieger, of the Seattle Police Department, expressed disappointment that police were being depicted as uncompromising by not agreeing to give up something in the law they consider important.
“Basically, it’s let law enforcement take it in the shorts. That’s not a compromise.” he said.
The panel wound up passing Frockt’s proposal with the minimum majority of 14 votes and voted down the other two.
On Wednesday, Roe expressed disappointment in the result but vowed to work to convince lawmakers the verbiage suggested by prosecutors presents the best option going forward.
“I think it would be a gigantic betrayal of law enforcement if the Legislature turns (the panel’s recommendation) into law,” Roe wrote in an email. “While I agree with removing the requirement to prove actual malice, good faith, adequately defined as I recommended, is an absolutely fair standard, and must remain.
“No good cop has one single thing to fear from removing the malice requirement, and just as importantly, no cop who acts very badly will be undeservedly protected by a well-defined good faith standard,” Roe wrote.
Deadly force law
Washington’s law on justifiable homicide or use of deadly force by law enforcement officers is spelled out in RCW 9A.16.040. It is the wording in subsection (3) which critics contend shields peace officers from prosecution if they wrongfully kill someone.
Here is the current language:
“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”
Here is the task force’s recommended revised language:
“A public officer or peace 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.”
Here is what county prosecutors and the Association of Washington Cities proposed and the panel rejected:
“A public officer or peace officer shall not be held criminally liable for using deadly force with a good faith belief that such act is justifiable pursuant to this section. For purposes of this chapter, good faith is 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.”