Washington’s unique law regulating police use of deadly force is once again facing criticism following the state attorney general’s decision Thursday not to charge police officers who fatally shot a man in Pasco last year.
Several supporters of Initiative 873 — which would alter the state’s “malice” law that some argue gives immunity to police who use deadly force — gathered at the Capitol on Monday to argue Attorney General Bob Ferguson might have prosecuted the officers who shot Antonio Zambrano-Montes to death in 2015 if not for the statute.
Ferguson’s office spent a year reviewing Franklin County Prosecutor Shawn Sant’s decision not to charge the three officers, at the request of Gov. Jay Inslee.
Ferguson agreed with Sant that there was insufficient evidence to convict the three officers under a Washington law that requires proof officers acted with “malice” and without “good faith” to convict.
But Ferguson told the Tri-City Herald editorial board Monday that he supports revisiting the malice and good faith requirements.
Changing the law will be up for discussion Tuesday at a state task force aimed at reducing violent interactions involving law enforcement.
Members of the task force who want to change the law had accused state lawmakers leading the committee of avoiding the topic in earlier meetings. In response, lawmakers have dedicated most of Tuesday’s nine-hour meeting to reviewing the statute and debating the pros and cons of altering it.
Convicting an officer for using deadly force in Washington requires proof the officer acted with “malice,” and without “good faith.” That standard is extremely difficult to meet, according to the American Civil Liberties Union and others. Washington’s law is considered to be the most protective of police in the country.
I-873 would remove “malice” and “good faith” from the statute.
“Changing this statute is the only way we’re going to start to turn the corner in this state for getting this kind of stuff right,” said Lisa Hayes, who is running the initiative’s statewide campaign through Washington for Good Policing.
Gabriel Portugal, a board member at the Latino Civic Alliance from Pasco, said revising the the law is necessary and would be “a start” in holding police accountable for use of deadly force. The alliance disagrees with Ferguson’s decision and pledged to support the Initiative 873 campaign.
If the initiative campaign collects about 250,000 signatures by Dec. 30, the measure will go to the ballot in 2017 unless lawmakers enact it before then.
Lawmakers also could offer voters an alternative measure, according to Secretary of State spokesman David Ammons. If they do, voters would choose between the initiative, the legislative alternative and making no legal change.
In explaining his decision last week to Gov. Jay Inslee, Ferguson alluded to Washington’s high legal standard for police use of deadly force. He wrote not bringing charges was “legally correct,” though he was “deeply troubled” by Zambrano-Montes’ death.
Ferguson doesn’t take public positions on subjects addressed in pending initiatives, according to spokesman Peter Lavallee.
Investigators say Zambrano-Montes was shot at 17 times by three officers. The 35-year-old was high on methamphetamine and threw rocks at police near a busy intersection, according to police. The shooting was captured on video and widely shared.
Ferguson’s review marked the third prosecuting attorney’s office to look into the shooting. The Franklin County Prosecuting Attorney’s Office and the U.S. Attorney’s Office for the Eastern District of Washington both decided not to criminally charge the officers.
Toshiko Hasegawa, a task force member representing Washington’s Commission on Asian American Affairs, said she hopes the task force uses Ferguson’s decision as a case study. She is advocating for a full meeting dedicated to reviewing it.
The task force is required to meet at least four times and recommend policy to the Legislature before the next session begins. Tuesday will be its third gathering.
Karen Johnson, president of the Black Alliance of Thurston County, called Ferguson’s decision “lawful” but also “unjust.” Johnson is also a member of the legislative task force.
“If anything this is another example as to why our work tomorrow is critical,” she said.
Some on the task force aren’t certain amending the statute is the right route and could even put law enforcement at risk by making them think twice about using deadly force when they’re in danger.
Rep. Dave Hayes, R-Camano Island, told The News Tribune and The Olympian in late July that changing the statute wouldn’t help reduce violent interactions involving police, and hoped the task force would recommend using stronger data collection to drive reform. Hayes is one of four legislators on the committee.
Hayes and Sen. Kirk Pearson, a Republican from Monroe on the panel who was skeptical of discussing the malice statute at the task force’s second meeting, did not return calls from The News Tribune asking for comment.
State lawmakers can choose to adopt or ignore task force recommendations when the Legislature convenes in January.
Some legislators unsuccessfully tried to change Washington’s malice law last year.
Scrutiny of police killings is on the rise following high-profile police killings of black men and women that have sparked national protests and the Black Lives Matter movement.
Changing the malice law and recommending other police reform “doesn’t bring Mr. Zambrano-Montes back,” Johnson said.
“But hopefully we can do something that can bring some peace and closure to his family that says his life matters as well.”