A state task force evaluating how Washington can reduce law enforcement-involved shootings appeared split Tuesday on a law that shields police who use deadly force from criminal charges.
A 1986 state law says police can’t be convicted of a crime such as murder for using deadly force on the job as long as they acted in good faith and without malice, or “evil intent,” as Tom McBride, the executive secretary for the Washington Association of Prosecuting Attorneys, explained at the meeting in Olympia.
The law can protect officers who use deadly force even when it’s deemed reckless or negligent, McBride said.
Reform advocates on the committee pushed for deleting the malice and good faith requirements from the statute as a way to hold police accountable.
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The standard is “an impossible threshold” for prosecutors to meet, said Gerald Hankerson, a committee member and president of the NAACP for Alaska Oregon and Washington.
An analysis by the Seattle Times last year found black people were disproportionately killed by police in Washington from 2005-14. And in only one of 213 cases during that time was an officer prosecuted for killing someone. A jury, asked to consider whether the Everett police officer acted with malice when he fatally shot a drunken man through the rear window of his car in 2009, acquitted him.
Changing the statute would build trust between law enforcement and communities affected by violence involving police, said Toshiko Hasegawa, a task force member representing the Washington Commission on Asian-American Affairs.
Others urged leaving at least the good faith clause or both aspects of the controversial statute.
Kennewick Police Chief Ken Hohenberg said that he was worried moving Washington’s law more in line with other states wouldn’t help reduce violent interactions involving police as much as more police training and other reforms based on data about violent interactions involving police.
“I wish we would have spent as much time talking about ways to prevent officers from being in situations where they had to deploy deadly force as we’re spending about talking about changing the law,” he said.
Hohenberg represents the Washington Association of Sheriffs and Police Chiefs on the panel.
Cynthia Softli, a member of the panel representing the Black Law Enforcement Association of Washington, voiced concerns that removing the malice requirement might put officers at risk by making them worried about protecting themselves in dangerous circumstances for fear of being criminally charged. She did not take a public position on changing the law, however.
“When I’m there and I’m in that situation, I don’t want to hesitate,” she said.
The task force is made up of lawmakers, representatives of police groups, community groups and legal organizations. They will recommend changes for lawmakers to consider.
Tuesday’s meeting came a few days after state Attorney General Bob Ferguson declined to charge three officers who fatally shot Antonio Zambrano-Montes in Pasco last year. Zambrano-Montes, 35, was throwing rocks near a busy intersection and high on methamphetamine, according to police. He was shot at 17 times.
Ferguson noted in a letter describing his decision that Washington has a high legal standard for charging officers who use deadly force. He told the Tri-City Herald editorial board on Monday that he supports revisiting the malice and good faith requirements.
A campaign to remove the malice and good faith portions from Washington’s law is gathering signatures in hopes of sending an initiative to the Legislature next year. A handful of supporters of Initiative 873 gathered at the Capitol on Monday to call for change to Washington’s malice law.
A portion of Tuesday’s meeting was dedicated to discussing the removing of the malice requirement while keeping the good faith requirement. Some police representatives said keeping the good faith requirement is needed to protect officers who make mistakes but were not acting recklessly. Others said they were concerned that judging good faith can be as subjective as determining malice.
No other state has malice or good faith requirements, but a few do have subjective standards, according to Jeff Robinson, the director of the Center for Justice at the American Civil Liberties Union who made a guest presentation.
Robinson captured attention while showing videos of police killings in other states, including the 2014 fatal shooting of Laquan McDonald, 17, in Chicago. McDonald was wielding a knife but walking away from officers when fired on. Officer Jason Van Dyke shot McDonald 16 times and is facing first-degree murder charges.
“Maybe this gets charged in the state of Washington; I don’t know,” he said.