On July 25, 2021, a plethora of bills enacted by the Washington legislature and signed into law by Governor Jay Inslee took effect regarding law enforcement and corrections officers in Washington state.
These new laws will cause every law enforcement and corrections agency and all its officers to reconsider the way they go about their jobs. It’s also causing many of those officers to consider leaving the profession.
The sweeping reforms were brought about by national events such as the killing of George Floyd in Minneapolis, and by incidents more local to Washington. The latter events include the prolonged confrontations between Seattle Police and social reform protesters that led to the temporary establishment of a “police-free zone” in downtown Seattle.
The links to the house and senate bills in this article are those that gave rise to the new laws. These will be incorporated into the Revised Code of Washington (RCW), but the new RCW section numbers were unavailable when this was written. All the bills described here were passed in the state legislature and signed into law by the governor.
New tactical rules
Washington House Bill 1054 mandates a number of changes to police tactics and procedures. These include:
- A ban on the use of any chokehold or neck restraint by a peace officer.
- Proposed changes to the use of police K-9s, including a ban on using K-9s for crowd control.
- Limiting the use of tear gas by police to riots, barricaded subjects, or hostage situations, with several circumstances or conditions that must be met before the tear gas can be deployed. If the riot is occurring outside a jail or other correctional facility, the highest elected executive of the county where the institution is sited must first give authorization.
The bill also bans the acquisition or use of any military equipment by a law enforcement agency. Any military equipment already in the possession of an agency must be returned to the federal agency where it was acquired or destroyed.
This ban specifically includes “firearms and ammunition of .50 caliber or greater.” One Washington officer who serves as the firearms trainer for his agency noted that this prohibition effectively eliminates the shotguns and less-lethal guns used by his agency: “A 12-gauge shotgun is .50 caliber. I have to pull all the shotguns and less-lethal weapons out of our cars, and we have no substitute weapon to replace them.”
The bill also forbids any peace officer from engaging in a pursuit unless there is probable cause to believe an occupant of the vehicle has committed or is committing a violent offense or sex offense, or there is reasonable suspicion that a person in the vehicle has committed or is committing a “driving under the influence” offense.
The elevation of probable cause in order to engage in the pursuit, as opposed to reasonable suspicion, can be a significant procedural obstacle. The same law requires that an officer obtain permission from his supervisor before initiating the pursuit. In an agency with 10 or fewer officers that may not always have a supervisor on the road, the officer in the pursuit must request that an on-call supervisor be contacted, who must authorize the continuation of the pursuit.
A supervisor in one Washington agency said, “Even with a clearly justified pursuit, it’s going to take some time for the lead officer to give me the rundown on the circumstances. By the time we finish that exchange, the suspect vehicle may be so far gone that pursuit is impractical.”
The same law prohibits officers from firing a weapon at a moving vehicle “unless necessary to protect against an imminent threat of serious physical harm,” and bans the application or issuance of “no-knock” search or arrest warrants.
Big use of force changes
Substantial changes in the way officers can use force are contained in House Bill 1310. This requires that officers exhaust all alternatives to use of force before resorting to force in any situation.
The bill specifically cites de-escalation tactics, creating physical distance between the officer and suspect, designating a single officer to communicate to avoid issuance of conflicting commands, calling for mental health professionals and/or back-up officers to respond to the scene, taking as much time as necessary without using physical force or weapons, and leaving the scene if there is no threat of imminent harm and no crime has been committed, is being committed or is about to be committed.
Rules governing use of force by law enforcement change substantially with this new law. Force may be used when there is probable cause to make an arrest, but not when the evidence can support only reasonable suspicion. An officer conducting a “Terry stop” with only reasonable suspicion of wrongdoing is powerless to use any amount of force to detain an uncooperative subject. If the subject of the Terry stop doesn’t want to cooperate and the officer has not gathered enough evidence to support probable cause for an arrest, the subject can simply walk away.
The real-world consequences of this new law were illustrated in Puyallup, Washington recently. Pierce County Sheriff’s deputies responded to reports of gunshots coming from the parking lot of a Kohl’s department store. On arrival they found a man dead on the ground, the apparent victim of a shooting. Witnesses reported a second man running away, with a vague description, but the deputies were unable to follow the tactics they were accustomed to using. They would have normally deployed a police K-9 and handler to track the suspect, but they lacked probable cause to arrest a specific person. As the use of a police K-9 is a use of force specifically enumerated in the new law, they could not deploy that asset.
The bill also abandons the “objectively reasonable” standard for evaluating a proper use of force as was established in the U.S. Supreme Court decision of Graham v. Connor 490 U.S. 386 (1989). Washington law officers will now be required to “use the least amount of physical force necessary to overcome resistance under the circumstances.”
Duty to intervene and report
Under the law set out by Senate Bill 5066, Washington officers now have a duty to intervene if they witness “another peace officer engaging or attempting to engage in the use of excessive force against another person,” and have an affirmative duty to report excessive uses of force to their supervisors at the earliest opportunity.
The same bill requires officers to report “any wrongdoing committed by another peace officer or has a good faith reasonable belief that another peace officer committed wrongdoing” to their supervisor. The supervisor must then forward the report to the Washington Criminal Justice Training Commission, the certifying agency for law enforcement officers in Washington. Failing to report improper uses of force or other “wrongdoing” can subject the witness officer to discipline and decertification as a peace officer.
This “wrongdoing” clause may be more problematic than it appears on first examination. A city police supervisor interviewed for this article illustrated this via a hypothetical scenario. “Suppose I’m wrestling with a suspect, and a Washington State Patrol trooper rolls up to assist me. He gets out of his car and runs to my aid, leaving his hat in the car. WSP troopers are required to wear their hats when they are outside of the car on enforcement duties. It’s against their policy to work without the hat. Does this issue amount to ‘wrongdoing’ that I’m obligated to report? Any violation of department policy can be considered ‘wrongdoing,’ from a uniform issue to use of deadly force.”
Senate Bill 5259 requires setting up a use of force database and requires Washington law enforcement agencies to report virtually any use of force to this data collection facility. Reports must name not only the person who was the focus of the use of force but also the name of the officer involved and the years of his service.
HB 1267 establishes a review board for all deadly force incidents in the state. This “deadly force investigations agency” must include representatives from various racial and ethnic minority commissions and one person from the family of someone who was the target of deadly force at the hands of a Washington peace officer.
HB 1223 requires that most custodial interrogations be recorded electronically. This will be difficult for some small agencies to heed, as they may not have a room where custodial interrogations can be conducted and recorded.
Seattle is by far the largest city in Washington. Last year, the Seattle city council moved to defund their police department by $3 million, the money going to social programs. Seattle’s mayor vetoed the reallocation but had her veto overridden by the council. Six months later, the police department is down 250 officers, and Seattle experienced six shootings in one weekend. The mayor is calling for hiring more police but getting more cops onto the streets of Seattle and other Washington cities is going to be even more difficult than before. Every Washington officer I interviewed said that some of their cops are considering early retirement or relocation in light of these new laws that can derail the careers of well-intentioned officers. The Washington legislature may be moved to revisit some of these reforms the next time they meet.
