Legislators pass bill on police deadly use of force

by Emry Dinman Staff Writer
| March 9, 2018 2:00 AM

Lawmakers in the waning days of the legislative session quickly responded to a citizen’s initiative that would make it easier to prosecute the illegal use of deadly force by an on-duty officer, amending I-940 despite concerns that doing so might violate the state constitution.

The legislature has three options when faced with a certified initiative. Lawmakers can do nothing, in which case the initiative goes to the ballot in November. Lawmakers can also suggest an alternative proposal, in which case Washingtonians vote on both options.

Instead, lawmakers chose a third path, preferring to adopt the initiative to avoid a contentious election that might have further deteriorated relationships between law enforcement and the communities they serve. They also sought to amend the initiative with a standalone bill sponsored by Rep. Roger Goodman, D-Kirkland, and Sen. David Frockt, D-Seattle, which made relatively minor changes agreed upon by law enforcement coalitions and activists behind the initiative.

The vast majority of legislators also supported the changes made in the amending bill, but concerns over the constitutionality of simultaneously adopting and amending an initiative nearly derailed the bipartisan effort, as language in the state constitution suggests that any changes to an initiative by amendment amounts to an alternative. In that case, both versions would have gone to the ballot and a campaign would be unavoidable.

Goodman revived his bill with an amendment that delays the legislations effective date for 91 days — one day after the initiative becomes law. At that point, Goodman argued, his proposal wouldn’t amend an initiative, but rather an enacted law.

Sen. Mike Padden, R-Spokane Valley, said that a plain reading of the state constitution clearly indicates lawmakers only have three options when responding to an initiative to the legislature, and Goodman’s path was not one of them. Instead, Padden argued both the initiative and the amendment should go to the ballot where voters could decide.

“While I agree that it may be divisive, it may be troubling, it may be inconvenient, it may cost a lot of money for both sides to get their message out to people, that’s what the initiative process is all about,” Padden said.

Democratic senators overrode the concerns of their colleagues from across the aisle, passing the initiative and the amendment along party lines.

The initiative, created by activist group De-Escalate Washington, sprang up in response to a string of contentious police shootings from Che Taylor to Charleena Lyles and subsequent inaction from both the courts and the state capitol.

Washington passed a law in 1986 that said an officer couldn’t be prosecuted for the use of deadly force — even if the act broke agency policies or other laws — if the officer did so in good faith while on duty. Critics say these protections for officers are the most difficult to overcome in the nation because it is impossible to prove an officer’s intent.

A 2015 Seattle Times investigation found that out of 213 people killed by police in Washington between 2005 and 2014, one officer was charged with illegally using deadly force. This was the only deadly use of force case where an officer was found guilty since the law was changed in 1986.

I-940 would lower the threshold for prosecution, protecting officers’ use of deadly force only as otherwise allowed by statute and only if the officer meets an objective “good faith” test, which asks whether a similarly-situated reasonable officer would have believed deadly force was necessary to prevent death or injury to the officer or another individual.

The measure would also require an independent investigation whenever deadly force was used and creates mandatory violence de-escalation and mental health training. Another key provision in the proposal would require law enforcement to perform first aid when an officer sees someone in need, establishing that law enforcement has a paramount duty to preserve the lives of people the officer comes into contact with while in the line of duty.

Having already passed through the House and with a 25-24 vote in the state Senate, the measure awaits the governor’s signature.