Confusion Besets New Police Reform Laws in Washington State

Kevin Burton-Crow, right, of the Thurston Co. Sheriff’s Dept., points a training gun at Naseem Coaxum, an actor playing the role of a person causing a disturbance at a convenience store, during a training class at the Washington state Criminal Justice Training Commission, Wednesday, July 14, 2021, in Burien, Wash. (AP Photo/Ted S. Warren)

Washington state is embarking on a massive experiment in police reform and accountability following the racial justice protests that erupted after George Floyd’s murder last year, with nearly a dozen laws taking effect Sunday.

But two months after Gov. Jay Inslee signed the bills, law enforcement officials remain uncertain about what they require, leading to discrepancies around the state in how officers might respond — or not respond — to certain situations, including active crime scenes and mental health crises.

The laws, passed by a Legislature controlled by Democrats and signed by a Democratic governor, constitute what is likely the nation’s most ambitious police reform legislation. They cover virtually all aspects of policing, including the background checks officers undergo before they’re hired; when they are authorized to use force and how they collect data about it; and the establishment of an entirely new state agency to review police use of deadly force.

According to the advocacy group Moms Demand Action, police have killed 260 people in Washington state since 2013.

The measures ban chokeholds, neck restraints and no-knock warrants, and limit the use of tear gas and military equipment. Inspired by the officers who stood by in Minneapolis as their colleague Derek Chauvin pressed a knee to Floyd’s neck, they require officers to intervene when a colleague engages in excessive force and to report misconduct by other officers.

They restrict when officers can engage in car chases; make it easier to decertify police for bad acts; make it easier to sue individual officers; and require police to use “reasonable care” in carrying out their duties, including exhausting appropriate de-escalation tactics before using force.

Law enforcement officials have embraced some of the changes and they have said they share the lawmakers’ goals.

But uncertainty about how to comply with the new laws, combined with a greater possibility of being decertified or held personally liable in court, puts officers in a tough position, they say.

“The policing reforms may have the positive impact of reducing the number of violent interactions between law enforcement and the public,” Steve Strachan, executive director of the Washington Association of Sheriffs and Police Chiefs, said in a statement. “However, we owe it to the public we serve to be candid and share that we are deeply concerned that some policing reforms may have unintended outcomes that result in increased levels of confusion, frustration, victimization, and increased crime within our communities.”

For example, the restriction on military-grade weaponry would inadvertently ban some less-lethal impact weapons, including the shotguns police use to fire beanbag rounds.

Johnson said the context makes clear the intent was to embrace, not ban, less-lethal weapons. He expected the state attorney general to clarify that until the Legislature can fix the wording next year.

Even more significant is a change in when officers can use “physical force” — a term that isn’t defined in the new law, but which is typically interpreted to mean force as minor as handcuffing someone. The attorney general has been tasked with developing a model policy on using force by next July, but for now, agencies have been consulting with lawyers to determine what the new law means.

Historically, police have been authorized to use force to briefly detain someone if they have reasonable suspicion — a commonsense notion, based on specific facts, that someone might be involved in a crime. They could then conduct further investigation to see if there is probable cause for an arrest.

But under one of the new laws, police now need probable cause — a higher standard, based on evidence that the person committed or was about to commit the crime — before they use force. They can also use force if there’s an imminent threat of injury; they can use deadly force only to protect against an imminent threat of serious injury or death.

The Criminal Justice Training Commission, which operates the state’s police academy, already emphasizes de-escalation tactics and began training on the duty to intervene last year even before the law was adopted. But it has had to modify its teaching to cover the probable cause requirement for using force.

These laws are taking effect as police have left the state or the profession in droves. Seattle is down hundreds of officers following clashes with protesters, criticism and talk of “defunding” last year. With a huge increase in early retirements and officers leaving for jobs in Idaho, Montana and elsewhere, the Kent Police Department is losing 21 of its 70 uniformed patrol officers this year, Padilla said. He blamed anti-police sentiment and the new laws.

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