Many people — advocates and legislators alike — agree that Washington’s legal standards used to measure whether a law enforcement officer could be held criminally liable for a fatal shooting must change. And everyone, including law enforcement, concedes revisions to state law — which among other conditions requires proof that an officer acted with “malice” — are likely to occur soon.
That’s where the consensus ends. The issue, as advocates see it, is whether an officer should be held to the same legal standards as any other citizen when it comes to taking the life of another. Law enforcement officers see it another way.
When the law is changed, the impact could weigh heavily on those behind the badge — especially if revisions omit wording considered essential in protecting officers involved in fatal shootings, local law enforcement officials say. Under the law, officers also are safeguarded from prosecution if they had “good faith” belief the use of deadly force was justifiable.
Yakima County Sheriff Brian Winter says he’s ready for reform in Washington policing, if that means compromise and only if the term “malice” is removed from the law. Having the “good faith” portion removed could cause officers to re-think their chosen vocation and possibly resign. And, it also would hamper recruitment efforts, he said.
“(We’d) have officers second-guessing themselves,” Winter said, referring to situations where officers are expected to make split-second decisions. “Where they are basically just another citizen. ‘Why would I want to do this job?’ ”
But advocates for reforming the law want “malice” and “good faith” removed. The wording, they say, makes it virtually impossible to hold an officer accountable for improper use of deadly force.
Last year, The Seattle Times found that prosecutors between 2005-14 had filed criminal charges against only one police officer who fatally shot a suspect. The officer, who was accused of shooting a man through the rear window of a car, was acquitted by a Snohomish County jury. The Times evaluated 213 fatal police encounters during the 10-year period.
“As long as they remain part of the law, they will be insurmountable obstacles to prosecuting officers who cause deaths through reckless use of lethal force,” said Elisabeth Smith, American Civil Liberties Union of Washington legislative director. “Washington is the only state with such a restrictive standard. Changing the law to make it possible to hold officers accountable for such actions is important for community trust in law enforcement.”
It’s a matter of community safety and trust, added Lisa Hayes, campaign manager for Washington 4 Good Policing and filer of Initiative 873, which if approved by the Washington Legislature would amend the law, making it easier to prosecute officers in some fatal shooting cases.
“The relationship between law enforcement and the community is strained. Not just here, but everywhere,” she said.
Washington’s law regarding law enforcement shootings states that an officer who acts without “malice” cannot be held criminally liable and that malice is manifested through “an evil intent, wish or design to … injure another person.” Another key statutory provision in the law states that an officer shall not be held criminally liable if the officer had a “good faith” belief that the use of deadly force was justifiable.
As proposed, I-873 would eliminate “malice” and “good faith” from state law regarding officers’ use of deadly force and create a new section spelling out, among other points, that “Washington has one of the most regressive laws in the U.S. regarding use of deadly force by law enforcement.”
The law in question, Revised Code of Washington 9A.16.040, outlines the situations under which deadly force is allowed and also spells out the conditions that must be met for an officer to be held criminally liable. Those conditions, I-873 proponents say, are a “foolproof” way to shield prosecution of officers where justifiable use of deadly force is questioned. Once the terms “malice” and “good faith” are removed, advocates say, local communities will finally feel comfortable with their law enforcement.
“The changes are inevitable,” Hayes said. “When they happen is unclear to me.”
A Joint Task Force on the Use of Deadly Force in Community Policing voted last week to send 15 recommendations to the Legislature for the 2017 session. Of those, one included removing the terms “good faith” and “malice” from the law. The task force is comprised of various state senators and representatives as well as statewide members of law enforcement, and civil rights and other groups.
Rep. David Taylor, a Republican from Moxee who worked to establish the task force, said it’s crucial to see the final language of I-873 but, in general, he supports the concept that courts should hold a law enforcement officer to the same standard as everybody else.
“They have training. They have the expectation to uphold the law,” Taylor said. “They are still innocent until proven guilty.”
The key to passage of the bill this legislative session would be revisions to the law that would work for both the Democratic-controlled House and the Republican-controlled Senate, he said.
“I can tell you that the bill that created this task force passed unanimously and that is an indicator that all members of the House are open to having the discussion,” Taylor said. “Is there a legitimate chance that this could get through this year or next year? Sure. It has as much of a chance of getting through as anything else.”
Rep. Norm Johnson refrained from commenting on the bill until after hearing what those in his caucus had to say on the issue. But the Republican representative from Yakima noted that he “generally supports the police.”
Winter said law enforcement officers are expected to go into the worst and most dangerous of situations and put their lives at risk daily. Citizens, he pointed out, don’t have the same responsibilities.
“We have a higher standard of training,” Winter said. “We don’t send our citizens into those places. I do not believe it’s reasonable to say we are going to apply the same standard to both.”
Mitch Barker, Washington Association of Sheriffs and Police Chiefs executive director, agrees, pointing out that “a person on the street can walk away from danger but a police officer can’t.”
“Our position is that we have to have a ‘good faith' portion properly defined,” said Barker, who adamantly believes police and civilians have “decidedly different standards” in a court of law. “To do away with that would limit the protection of our officers.”
Yakima Police Chief Dominic Rizzi doesn’t believe citizens should be held to the same legal standard because it would like “raising the bar for civilians.”
“We are paid to protect the community,” Rizzi said. “This is our full-time job. We need to be held accountable.”
Rizzi said if the law was to change to add a “reasonable standard” — a standard of assessment that compares the actions of one officer to that of another under the same circumstances — his department would adjust. Hayes believes that a “reasonable standard” should be the proper assessment in which to judge an officer who has been accused in an officer-involved shooting.
“But we never get there because of the malice clause,” she said. “The public has the right to know what other officers (in the same situation) would have done.”
Although Hayes is hopeful the Legislature will act on the task force’s proposed changes, she also believes Gov. Jay Inslee could address the issue without legislative involvement.
“I would absolutely love Gov. Inslee take action on this by way of executive order,” she said. “He is the one person in this state who can do this by himself. It would be nice, if he would take that and take the risk out of the legislative process by doing it by executive order.”