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Is compromise possible on changing police use of deadly force law? Some lawmakers are trying

Tom McBride, Wa. Association of Prosecuting Attorney, explains of police officer use of force rule during a joint legislative task force on Washington's police use of deadly force laws in the John O'Brien Building at Olympia on Tuesday, Sept. 13, 2016.
Tom McBride, Wa. Association of Prosecuting Attorney, explains of police officer use of force rule during a joint legislative task force on Washington's police use of deadly force laws in the John O'Brien Building at Olympia on Tuesday, Sept. 13, 2016. lwong@thenewstribune.com

For state Sen. David Frockt, changing Washington’s unique law that protects police officers who kill in the line of duty means trying to find some sliver of agreement between two outspoken camps.

The Seattle Democrat introduced Senate Bill 5073 last week to lower the bar for proving illegal use of police deadly force. Some key lawmakers view the measure, patterned on the work of a state task force last year, as the starting point to finding a compromise between law enforcement and civil rights groups.

“In many ways what I’m trying to do here is find a narrow path,” Frockt said. “People understand that it’s a difficult issue, and there are ways to change the law here that will respect the work that (police) do but also move us more toward justice when the facts warrant.”

State law now requires prosecutors to prove an officer acted with “malice” and without “good faith” when using deadly force. The standards, particularly “malice,” make it almost impossible to prove criminal liability, even in cases in which officers act recklessly or negligently, many prosecutors say. Washington state’s law gives officers the most protection of any state in the nation.

When Franklin County Prosecutor Shawn Sant announced that there would be no charges filed in the February 2015 fatal shooting of Antonio Zambrano-Montes, he said his decision was supported by state law because the officers were “acting in good faith and without malice” when they used deadly force on an armed suspect.

“In Washington, an officer’s use of deadly force is justifiable ... when the officer has probable cause to believe that the person poses a threat of serious physical harm to another,” Sant said at the time.

Frockt’s bill adopts recommendations narrowly approved by the state task force, deleting the good faith and malice clauses in favor of a new standard that asks if a “reasonable officer” would use deadly force in the same circumstances.

It stops short of the overhaul proposed by state Rep. Beth Doglio, D-Olympia, that would, in addition to eliminating the malice and good faith standards, require officers who use deadly force to prove they had “a reasonable belief of an imminent threat.”

But Frockt’s legislation also goes a step beyond a proposal from the Washington Association of Prosecuting Attorneys that has garnered bipartisan interest, including support from Democratic Gov. Jay Inslee. Frockt has said he is open to amending his bill to mirror the prosecutors’ language.

The prosecutors’ measure differs in a way that’s important to the law enforcement community: It retains the good faith requirement, while also defining what good faith means. Prosecutors would have to prove that a cop using deadly force acted beyond the bounds of what a reasonable officer, “relying upon the facts and circumstances known by the officer at the time of the incident,” would have done.

In many ways what I’m trying to do here is find a narrow path.

State Sen. David Frockt, D-Seattle

Snohomish County Prosecutor Mark Roe, a task force member, said the good faith standard is not the outlier that the malice requirement is. Keeping it while tying it to the reasonable officer standard would be a “very significant change in the law” that still would offer some protection for honest mistakes by law enforcement, Roe said.

State Rep. Roger Goodman, a Kirkland Democrat who chairs the House committee where a deadly force bill would be heard, said the prosecutors’ measure opens up prosecution in some cases that are impossible to charge now while retaining some protections for law enforcement.

He pointed to Minnesota as an example of how a new law might operate. Prosecutors there charged a police officer last year with second-degree manslaughter for fatally shooting 32-year-old Philando Castile in suburban St. Paul during a traffic stop. Prosecutors in Washington state might not have been able to do the same under current law.

“If a law enforcement officer recklessly takes the life of another, they shouldn’t just lose their job,” Goodman said. “They should be held somehow criminally liable for that.”

Roe said the prosecutors’ proposal to eliminate only the malice standard also has a symbolic significance: In eliminating the malice standard, it gives civil rights groups a win while also sending a message that we’re not “just hanging cops out to dry,” he said.

Some civil rights and minority groups that have thrown their support behind Doglio’s House Bill 1000 say they also could get behind Frockt’s bill, but they are split on the prosecutors’ proposal.

If a law enforcement officer recklessly takes the life of another they shouldn’t just lose their job.

State Rep. Roger Goodman, D-Kirkland

Karen Johnson, chairwoman of the Black Alliance of Thurston County and a task force member, said she is concerned that proving an officer acted without good faith remains too difficult, even if good faith has new parameters.

Lisa Hayes, the campaign manager for Washington for Good Policing, a group that tried to send an initiative to the Legislature to delete malice and good faith from the law, is more amenable. She said “wide sweeping reform” might not be realistic.

“I think down the middle really does start with ‘let’s remove the malice clause,’ ” she said. “And then from that point figure out what work needs to be done.”

Law enforcement representatives and key Republicans also are showing signs that they might be open to prosecutors’ middle ground.

Goodman’s counterpart in the GOP-controlled Senate, Republican Mike Padden of Spokane Valley, said he isn’t sure a legal change will have “that much of a practical effect” in reducing violent interactions with law enforcement.

But he said he has “concerns” with the malice part of the statute and would look at the prosecutors’ language “more seriously” than at HB 1000.

“I think there’s a case to be made,” he said, for deleting the malice clause from the statute.

While the Washington State Fraternal Order of Police continues to opposes changes to the deadly force law, spokesman Travis Adams said the organization is more open to the prosecutors’ proposal than any other.

“I think this is one of the situations where if we had language that was nothing more than removing malice from the statute, then we could have that conversation,” said Adams, who was the order’s representative on the task force.

I don’t want to get to the point where a law enforcement officer has to make a split second decision, whether they’ll take time thinking ‘oh my gosh I could be sued.’

State Sen. Kirk Pearson, R-Snohomish

But not everyone is willing to budge. Republican state Sen. Kirk Pearson, a Monroe Republican who also was on the task force, insists a change isn’t necessary.

“I don’t want to get to the point where a law enforcement officer has to make a split-second decision, whether they’ll take time thinking ‘oh my gosh I could be sued,’ ” Pearson said.

Instead of a legal change to the deadly force statute, Pearson said he plans to introduce a bill that would pair new law enforcement members with experienced officers to patrol diverse communities as a learning experience. Pearson said he got the idea from President Barack Obama’s 21st Century Policing Task Force.

Frockt’s bill also contains measures aimed at funding new training tactics such as de-escalation practice, distribution of less-lethal weapons like Tasers and data collection on use of force incidents. That money, especially the dollars for centralized data collection, are a “must have” for the law enforcement community, Adams said.

They also might be a bargaining chip. Johnson and Goodman both said they would resist efforts to pay for new police programs without a change to the “malice” law.

“It’s an all or nothing proposition,” Goodman said. “We’re not going to be able to amend the use of force statute without providing funding for law enforcement, and we’re not going to be able provide funding for law enforcement without amending the use of force statute.”

Walker Orenstein: 360-786-1826, @walkerorenstein

Washington’s law regulating police use of force was passed in 1986. The language in question:

A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with good faith belief that such act is justifiable.

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