Police Reform

USE OF FORCE (HB 1310)  

This legislation says:  

There is now a legal requirement to de-escalate and exhaust all lesser means of force

Use of physical force is more limited

Officers can only use force to overcome actual resistance

Tactics are limited

Tools and equipment are limited

Department policy has become a legally enforceable standard

A police officer may use force in these circumstances: 

• When making an arrest
• Effecting an arrest
• When preventing an escape as defined under Chapter 9A.76 RCW; or
• Protecting against an imminent threat or bodily injury to the peace officer, another person or the person against whom force is being used.

HB 1310 has greatly reduced the incidents in which officers can employ force and the manner in which they apply that force. 

Prior to this Bill, officers were authorized to use force to make an arrest, enforce an investigative stop, detain a person for their own safety, the officer's safety, or the safety of another, to detain juvenile runaways and to take a person into protective custody if they had a mental health issue that would result in an involuntary commitment to a hospital of mental health facility.   

Under the new law, officers may only use physical force when necessary to protect against criminal conduct when:

•There is probable cause to make an arrest; 

•To effect an arrest (arresting someone on a warrant); 

•To prevent an escape as defined under RCW 9A.76; OR

•Protect against an imminent threat of bodily injury to the peace officer, another person or the person against whom force is being used

Definition: An "imminent threat" means it is objectively reasonable to believe that a person has the present and apparent ability, opportunity and intent to immediately cause bodily injury to the officer or another person.

This means that an officer may not use force or chase a subject that is suspected of committing a crime, cannot use force for investigative detentions unless there is imminent danger and may no longer use force to detain a subject for mental health treatment unless there is imminent danger. These restrictions and burdens are far more restrictive than the previous standards and the current federal standards on police use of force. As such, it has necessitated a change in what and how we as a police department respond to certain types of calls.

Drug Possession (State vs. Blake) (SB 5476)  

BACKGROUND DETAILS:

This law was created in response to a Washington Supreme Court Decision:  State vs. Blake.  In this case, it was determined by the State Supreme Court that the state drug crimes law was unconstitutional because it created strict liability when it did not require proof of a mental state, i.e., knowledge. This law added the word “knowingly” to the Unlawful Possession of a Controlled Substance statute and established certain criteria for charging subjects knowingly in possession of drugs for personal use.

• The bill modified the existing Possession of Controlled Substance statute; it changes possession of narcotics from a felony to a misdemeanor crime (conviction of 90 days in jail and/or $1,000 fine – which expires July 1, 2023) and adds the word “knowingly”
   
• The bill made Fife Municipal Code 9.21.020, Possession of a Controlled Substance, null and void
   
• For all individuals who otherwise would be subject to arrest for possession of drugs, in lieu of jail booking and referral to the prosecutor, law enforcement is required to offer a referral to drug assessment and treatment at least two (2) times before citing with the criminal charge.  
  
  Fife Police Department has created a Referral to Assessment and Services document to accommodate this new Bill. There is no state referral program set up at this time.
  
  
• When a case involving possession is legally sufficient, the prosecutor is encouraged to divert cases for assessment, treatment, or other services
  
  
• It is no longer a crime to possess many of the drug paraphernalia items that officers see in the field and confiscate. Drug paraphernalia no longer includes items that store, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance, i.e., items for personal use. This includes, but is not limited to, syringes, smoking pipes, etc.
   
• Trafficking in drugs is still a felony and not impacted by this bill  

DUTY TO INTERVENE (SB 5066) 

THIS LEGISLATION SAYS:

Officers have a duty to intervene

Officers have a duty to render aid

Officers have a duty to report by any officer who witnesses another officer using or attempting to use excessive force. The officer has a duty to intervene to end and/or prevent the use of excessive force and report to their supervisor

There is a non-retaliation provision that prohibits law enforcement agencies from imposing discipline or retaliate in any way against an officer for intervening in good faith or reporting in good faith 

The legislation empowers and encourages officers to report misconduct

The legislation says an officer can be disciplined or even decertified under SB 5051 for not intervening or reporting

FELONY BAR (SB 5263) 

What this means:

This legislation amends RCW 4.24.420

There is now a greater burden of proof for officers on duty as compared to other persons

To qualify for this defense, a law enforcement officer must now prove beyond a reasonable doubt to a fact finder that:

The suspect was in the commission of a felony at the time of the injury

The felony conduct was a proximate cause of the injury

An officer must now raise this defense at trial, as opposed to summary judgment

The government is required to treat similarly situated individuals in a similar manner

The state would need to argue a rational basis for this disparate treatment, i.e., police reform

OFFICE OF INDEPENDENT INVESTIGATIONS (HB 1267) 

What this means:

Creates the Office of Independent Investigations within the Office of the Governor and designates the agency as a limited authority Washington law enforcement agency

The Office of Independent Investigations is authorized, but not required, to conduct investigations regarding the use of deadly force, “or other incidents,” by a law enforcement officer

The investigations cover “in custody” (“under physical control”), or out of custody cases

Per the intent, the office should not be recommending criminal charges or a finding of administrative policy violations

Will refer the investigation to the prosecutor to determine if the action was justified, or whether criminal charges will be filed

AUDITS OF INDEPENDENT INVESTIGATIONS (HB 1089) 

What this means:

The Washington State Auditor is authorized to conduct a process compliance audit procedure and review of any deadly force investigation occurring after February 4, 2019

The auditor will determine if the law enforcement agency, investigative body, and prosecutor’s office are in compliance with RCW 10.114.011

The auditor is also authorized to conduct an audit procedure on any law enforcement agency to ensure the agency is in compliance with all laws, policies, and procedures governing the training and certification of officers employed by their agency

LAW ENFORCEMENT DATA COLLECTION (SB 5259) 

What this means: 

Creates statewide data collection program for reporting, collecting, and publishing information regarding law enforcement officers’ use of force

Authorizes the Attorney General to contract with an institution of higher education to establish and administer the reporting system

Each law enforcement agency will be required to report use of force incidents

Fife PD is already capturing this data, but will be updating to reflect changes

For more information, please visit these trustworthy sources: 

https://www.waspc.org/assets/legislative/2021%20WASPC%20End%20of%20Session%20Report.pdf  

https://www.waspc.org/index.php?option=com_content&view=article&id=78:legislation&catid=20:site-content 

https://wacities.org/advocacy/News/advocacy-news/2021/05/21/2021-a-major-year-for-police-reform-in-washington