Coalition launches voter initiative to reform police use of deadly force

Today a coalition of activists and stakeholders launched a statewide ballot initiative to “improve officer training and accountability in Washington State.”

Initiative 940, sponsored by De-escalate Washington, attempts to do four things:

  1. Requires all law enforcement officers in the state to take violence de-escalation training, as well as training for how to interact with people with mental health issues. There is both an initial training and ongoing continuing training to update and practice skills.
  2. Sets as a policy that all law enforcement personnel must render first aid to save lives, and that officers  “have a paramount duty to preserve the life of persons whom the officer comes into direct contact with while carrying out official duties.”
  3. Rewrites the standard for law enforcement officers’ use of deadly force in which an officer “shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable.”
  4. Requires that whenever an officer’s use of deadly force results in death or significant bodily harm, an independent investigation must be completed to inform whether the “good faith” standard was met.

The first two points are not particularly controversial. The requirement to render aid follows the shooting of Che Taylor, in which video revealed that police officers did not immediately provide medical aid. The training for how to interact with people with mental health issues responds to a criticism of how police officers interacted with Charleena Lyles, another recent victim of police use of deadly force.

The third point, rewriting the standard for prosecuting an officer for use of deadly force, has been a topic of great discussion recently and the state legislature briefly considered but did not pass a bill on this topic. The current standard says:

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

In practice this is a nearly impossible standard to meet, so law enforcement officers are rarely charged. The Senate bill removed the reference to “malice” and offered a new “good faith” standard, defined as:

For purposes of this section, “good faith” is whether a reasonable peace officer, relying upon the facts and circumstances known by the officer at the time of the incident, would have used deadly force.

I-940 goes further, defining a two-part test for “good faith,” one objective and one subjective:

The objective good faith test is met if a reasonable officer, in light of all the facts and circumstances known to the officer at the time, would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual.

The subjective good faith test is met if the officer intended to use deadly force for a lawful purpose and sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.

An officer’s actions meet the “good faith” test only if both of these are met.

The fourth part of the initiative, requiring investigations of officers’ use of deadly force, is likely to be more controversial. In the aftermath of the recent shooting of Charleena Lyles, Council member Kshama Sawant led  a group calling for an independent investigation, based on their belief (and recent evidence, including here and elsewhere) that law enforcement agencies cannot be trusted to investigate their own officers. Seattle’s new police accountability legislation, currently being reviewed by a federal judge, has several layers of investigation and review, beginning with SPD’s internal Force Investigation Team (FIT), then proceeding to the Office of Police Accountability (OPA) if there is evidence of misconduct and the Inspector General approving OPA’s investigations. King County requires that an inquest be performed (led by the King County Prosecuting Attorney) to “to investigate the causes and circumstances of any death involving a member of the law enforcement agency of the county in the performance of his duties,” though that wouldn’t cover investigations into uses of deadly force that resulted in “substantial bodily harm” or “great bodily harm” but not someone’s death.

All of these levels of investigation above SPD’s FIT team provide some level of independence, though none assure complete independence. However, while I-940 insists that the investigation be “completely independent of the agency whose officer was involved,” it doesn’t define what would meet that bar. Instead, it leaves that to the Washington State Criminal Justice Training Commission, which oversees the state police academy and sets certification standards and curriculum for law enforcement officer training in the state. That’s pretty far outside its remit to ask it to set the rules for use-of-force investigations (though I-940 directs the commission to set the curriculum for the de-escalation and mental health training, which is perfectly appropriate).

There is clearly a lot of good in I-940, as it would increase police training and make a long-needed change in the state law preventing police officers from being prosecuted for inappropriate use of deadly force. But assuming the initiative gathers enough signatures and makes it onto the ballot, there will likely be fierce debate about the statewide requirement for fully independent investigations and whether the initiative defines the rules for those investigations appropriately. And it wouldn’t be at all surprising if that debate split along red-blue partisan lines in this deeply divided state.

In response to an email inquiry, Council member Gonzalez, who chairs the Council’s Gender Equity, Safe Communities and New Americans Committee and sponsored the police accountability legislation, said the following about I-940:

“Today’s announcement of Initiative 940 is not the first time we have heard from communities disproportionately impacted by deadly force as a result of police contact.  I continue to stand with police reform advocates who seek to adjust state laws to make our criminal code more just for the victims of police violence.  Likewise, I continue to believe that increased training in de-escalation, cultural competency and mental health, promotes officer safety while minimizing the potential use of deadly force. 

“This initiative is similar to a bill that was considered by the Washington State Legislature this year and, in that instance, the City of Seattle dedicated lobbying resources to advocate for a “good faith” standard when reviewing deadly use of force by an officer.  I appreciate that the language of this initiative lays out a reasonable path to engage stakeholders, including law enforcement, in crafting uniform standards across the state that will increase officer and community safety.  

“I also recognize the importance of the investigation process that informs a prosecutorial decision. In King County, that process includes an inquest.  This initiative would require that, in addition to ordinary investigations, there be an additional independent investigation of whether the “good faith” standard was met in the event of the use of deadly force.  In these cases, I have learned that it is often helpful to have different perspectives and analyses of the same incident to provide prosecutors with as much information as possible about an event. This will serve to improve legitimacy and community trust in prosecutorial decisions while also providing prosecutors with additional information about a deadly force event.”    

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