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Wash. lawmakers move ahead with deal to change police shooting law

At issue is the legal standard necessary for convicting an officer of a criminal offense tied to his or her use of deadly force

By Walker Orenstein
The News Tribune (Tacoma, Wash.)

OLYMPIA, Wash. — A controversial law that shields officers who kill in the line of duty could be changed at the state Capitol after key law enforcement groups and backers of a police-reform ballot measure reached a compromise deal this week.

The agreement, announced at a public hearing Tuesday, is a surprise in Olympia.

Many expected Initiative 940 to get a statewide vote in November following years of failed negotiations between police and advocacy groups dedicated to changing Washington’s uniquely high bar for prosecuting a police officer for using deadly force.

The two sides said they hammered out a deal that would take I-940 off the ballot and change the state law, but some said the process they used might be unconstitutional.

At issue is the legal standard necessary for convicting an officer of a criminal offense tied to his or her use of deadly force. Currently, state law requires prosecutors to prove officers acted with “malice” and without “good faith” in order to win a conviction.

No other state has the “malice” standard, which prosecutors say effectively blocks them from charging officers for reckless and negligent shootings unless they acted with evil intent and are guilty of murder.

Not every police group in the state is on board with the agreement announced Tuesday, but the Fraternal Order of Police, an influential union of front-line law enforcement officers, and other powerful police organizations are supporting House Bill 3003.

State Rep. Roger Goodman, a Democrat from Kirkland and a key negotiator, said that buy-in is enough to move the legislation to the desk of Gov. Jay Inslee before the 60-day legislative session ends Thursday.

“Even though it isn’t perfect, it is a great outcome,” said Steve Strachan, executive director of the Washington Association of Sheriffs and Police Chiefs.

HB 3003 was advanced unanimously by the House Public Safety Committee on Tuesday and a floor vote in the chamber is expected later Tuesday. The measure is scheduled for a committee vote in the Senate Wednesday.

It’s still unclear whether HB 3003 can make it through the Senate. Some Republicans criticized how the bill skirts the usual process for initiatives to the Legislature.

Rules on altering initiatives require HB 3003 to get a two-thirds majority vote in the Legislature, meaning some Republican opposition in the Senate could scuttle the measure. Democrats have a 25-24 voting majority in the state Senate.

Initiative 940 sprang from the movement protesting police killings across the country and in Washington state, such as the highly scrutinized fatal shooting of Puyallup tribal member Jacqueline Salyers by police in Tacoma.

The killing of Salyers was ruled justified by Pierce County Prosecutor Mark Lindquist. Key negotiators would not speculate Tuesday if the result of that investigation or any others would have been different under the proposed legal standard.

Only one officer in Washington has been criminally charged for using deadly force in the last decade, according to a Seattle Times analysis. The officer was acquitted of murder and manslaughter charges in the Snohomish County case.

After years of trying to lower the bar for prosecuting police in the Legislature and being halted by law enforcement opposition, reform advocates and minority groups launched their initiative drive offering sweeping changes to the standard for when police can legally use lethal force.

The Puyallup Tribe of Indians backed I-940 and donated $350,000 to its campaign, according to the latest filings of the Public Disclosure Commission.

Front-line police unions, including the Fraternal Order, previously resisted a change, saying the current law protects officers who make honest mistakes in stressful, dangerous situations.

But faced with I-940 — and a potentially divisive, negative and expensive campaign — many law enforcement groups signed on to the amendments in the Legislature.

Representatives from two police groups who marked themselves opposed to HB 3003 at Tuesday’s hearing did not testify and could not immediately be reached for comment.

Heather Villanueva, a leader for the I-940 campagin De-Escalate Washington, celebrated the deal as strengthening the initiative’s language and implementing it months sooner than had it been approved by voters later this fall.

“We want to save lives. We want to make sure everybody is safer,” Villanueva told reporters Tuesday. “We want to get this done.”

The initiative would have deleted the “malice” requirement from the law, while setting up a two-part test to determine if an officer met a new “good faith” standard when using deadly force.

The first part required proof an officer acted within the bounds of training and that a reasonable officer would have used deadly force in the same circumstances. The second asked if the officer “sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.”

If the officer failed either category, the killing would be deemed unjustified.

HB 3003 also would delete the malice standard and only ask prosecutors to examine whether a reasonable officer would have deemed deadly force necessary to prevent death or serious physical harm to police or others if placed in the same situation.

Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys, testified Tuesday an officer’s subjective intent could still be considered in the trial process.

Goodman said HB 3003 will allow for officers to be charged with manslaughter for shootings deemed reckless or negligent that do not rise to the level of murder.

The legal standard in HB 3003 is similar to a proposal written by county attorneys last year that garnered some bipartisan support at the Capitol.

That measure likely would not have resulted in criminal charges for police in some of the state’s most controversial shootings, including the Salyers incident, prosecutors told The News Tribune and The Olympian.

Salyers was fatally shot in January 2016 as she drove toward a police officer, according to Tacoma police.

Some in the I-940 camp saw that as evidence the prosecutors’ plan did not go far enough. McBride’s organization said it was necessary to allow manslaughter charges in certain situations while protecting police from being prosecuted for mistakes after split-second decisions in potentially dangerous encounters.

In addition to changing the good-faith standard, I-940 comes with new requirements and training for police in first-aid, de-escalation tactics and mental health awareness. The initiative mandates independent investigations into incidents where police use deadly force. Those requirements would be only slightly tweaked by HB 3003.

One new provision of the initiative added by HB 3003 would require the state to reimburse an officer for legal fees if they are found not guilty of criminal charges or if the charges are dismissed.

In order to change the initiative and bypass the normal ballot-measure process, lawmakers need some unusual maneuvering.

Typically, they would have three options with an initiative to the Legislature.

They could approve I-940 as is. They could pass an alternative to compete with the initiative on the fall 2018 ballot. Or they could have done nothing, sending the measure to the ballot by itself.

Rather than taking one of those routes, Goodman said lawmakers instead will approve I-940 unchanged and then quickly pass a follow-up measure to amend the law with the changes in HB 3003.

Sen. Mike Padden, R-Spokane Valley, said he believes the “end-run” around the initiative laws is unconstitutional and pointed to a 1971 opinion from Attorney General’s office on referendum laws.

“I would be leery of enacting (I-940) only for the purpose of enacting something else that really amends it,” Padden said.

It appears there is bipartisan support, at least in the House, to do so.

State Rep. Dave Hayes, a Camano Island Republican and a sergeant with the Snohomish County Sheriff’s Office, said at Tuesday’s public hearing he would support the bill after the lengthy negotiations he helped broker.

Hayes said people should recognize law enforcement must make “the hardest decisions under the worst possible circumstances in dynamic situations” and often “do it right.”

But Hayes said he wanted to “empathize” with people who have “suffered loss” on both sides of the issue.

“I believe that this is the best way to move our state forward and to move our communities forward considering the fact that it is a very emotional issue,” he said.

©2018 The News Tribune (Tacoma, Wash.)

McClatchy-Tribune News Service

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