New rules for use of force, investigations round out week on police accountability bills

From new rules narrowing when and what kind of force police should use to bans on tactics, to requiring officers to intervene when they see excessive force, to a new Office of Independent Investigations, the 2021 legislative session is shaping up to be the year of police accountability.

In the wake of the death of George Floyd in Minneapolis last year, the calls for true police reform rages louder in Washington that perhaps ever before.

Washington state is also no stranger to those calls.

It’s what was behind the years-long effort that culminated in 2019 with voters overwhelmingly approving I-940, Washington’s new police accountability law that, among other things, required more training for officers and fully independent investigations in use of force cases.

When it was passed, it was largely hailed a victory for families of those killed by police. But when the law took effect, it was clear something was missing: someone to ensure police agencies were actually following the new rules.

In the past week, action have been taken on a series of these police accountability proposals, including Democratic Rep. Jesse Johnson’s HB 1310, which lays out the rules for when and what force officers can use.

“The community of family members and survivors, people who have advocated for reform and for justice in this area have brought us this bill because they have observed that the reforms that the people requested in passing initiative 940 have not been quite sufficient to the task and that we continue to witness incidents of excessive force deployed by our officers,” said Democratic Senator Jaime Pedersen during debate on the Senate floor Saturday.

“We want to empower officers to do the right thing. We want to give them guidance about the standards that we expect them to uphold, and this is a carefully nuanced bill that will provide that guidance to our law enforcement officers about our expectations for them, as they do their best every day to try to do justice and uphold the laws that we pass in this body,” Pedersen added.

The bill creates a civil standard that states an officer may use physical force against another person when necessary to protect against criminal conduct, where there is probable cause to make an arrest; effect an arrest; prevent an escape as defined under chapter; or protect against an imminent threat of bodily injury to the officer, another person, or the person against whom force is being used.

It also says deadly force should only be used when necessary to protect against an imminent threat of serious physical injury or death to the officer or another person.

The state Attorney General is tasked under the bill with developing and publishing model policies on law enforcement’s use of force and de-escalation tactics by July 2 of 2022, with all police agencies adopting policies consistent with that by December of that same year.

Republicans warned the change would backfire.

“People will be less safe, because law enforcement officers will not be able to take the steps that many people who pick up the phone and dial 911 would like those law enforcement officers to take,” said Republican Senator Doug Ericksen.

But some Democrats took issue with that framing, including state Sen. David Frockt.

“This bill does not prevent the use of force when it’s necessary,” he noted. “It lays out some parameters, but it certainly is not intending to prevent police officers from protecting us [or] protecting anyone else.”

“I think that we need to be specific in our language as we debate this bill and others that may come up,” he added.

The Senate also approved a Republican amendment that adds limited use of tear gas to the use of force policy, despite objections from Democrats.

“Tear gas is banned in wartime,” argued Pedersen. “It is not a tool that our police need to be able to use on peaceful protesters or frankly on any protesters, even if someone has decided that there’s a riot situation.”

But, Democratic Senator and National Guardsmen Steve Hobbs appeared to sway the vote when he rushed in virtually while serving with the Guard, with an impassioned plea from personal experience.

“I have been there — I have been there facing a crowd of hundreds with just a few people and not having that non-lethal capability. Not having it is a recipe for disaster,” said Hobbs.

“When you have thousands of people in one area, there is going to be an element that want to be violent. When you have that many people around it as it gets worse and worse and worse, and you have no means to control the violence if it gets out of the hand, and you need to have non-lethal capability, having the use of tear gas puts another level before the use of lethal force,” Hobbs added before a successful vote to add the amendment to the bill, which also narrowly won approval in the Senate on a 26-23 vote, with Hobbs among those voting against the full bill.

Police tactics are also the main feature in Johnson’s HB 1054.

Aimed at preventing things like the deaths of Floyd and Taylor, the bill bans chokeholds and neck restraints, and no-knock warrants. It also limits police use of tear gas, police pursuits (including when officers can fire on moving vehicles), prohibits law enforcement from acquiring certain military equipment, and creates a work group to look at ways to limit the use of K9s chasing suspects due to dog bites and other concerns, while not hindering the important work K9s provide law enforcement.

“I’m just really proud of the process — I really believe equity is in the process, not just the outcome, but the lifting up every voice in the process, and I think we did that,” Johnson said following the Tuesday vote.

“I am just excited about the historic vote, it’s going to change lives, it’s going to positively impact community, and I believe it will make community more safe, and our police officers have better relationships, because they’ll be using tactics that are more acceptable in our communities, especially communities of color,” he added.

Republicans were less enthused.

“Why in the world would anyone want to be a police officer? Under the circumstances we are leaving them, the only choice is to escalate their response,” said Republican Senator Peter King during debate ahead of the vote.

The bill passed in a 27-22 vote with Sen. Keith Wagoner the lone Republican in the yes column.

In the House, lawmakers also approved a bill from Sen. Manka Dhingra, requiring that officers act immediately if they witness another officer engaged in what they believe to be excessive force, and not just stand around and watch.

The bill creates a duty for officers to intervene, and also requires they report any other misconduct to that officer’s supervisor or department.

“That is how we stay in touch with the humanity of real people, real human lives that are just thrown away. Like we all saw on camera with the four officers that stood and watched the public murder of George Floyd, why is it that everyone in that video saw that humanity in that man except for those four officers that simply stood and watched? That is a deep rooted problem in our system and in our culture, and we cannot fool ourselves into believing that was just a bad apple,” Johnson said before the vote.

That bill had more Republican support with the final vote 71-27, although it was not universal.

“We have to think about the people in our communities that are going to be affected by this when officers are afraid to do their job,” said Republican Rep. Jenny Graham.

“We can’t make these agents respond with certainty on a foundation of uncertainty,” argued Republican Rep. Jim Walsh.

Back in the Senate, there was significant action that will have a major impact on policing should it become law. Collectively known as the de-certification bill, SB 5051 is seen as the teeth of the police accountability agenda.

“This legislation establishes a much stronger state authority to hold police officers accountable for egregious misconduct and patterns of repeated misconduct,” explained Democratic Rep. Roger Goodman.

The bill would mandate de-certification of an officer, which is essentially like taking a way a cop’s license to be a cop, for certain things, including improper use of force. It also creates a tiered system for lesser bad behavior that could eventually tally up enough to force de-certification, while also requiring intensive new background checks before an agency hires an officer.

De-certification decisions would be up to a panel at the Criminal Justice Training Commission that would now be larger and more civilian heavy than before, a big concern for Republicans opposed to the bill.

“Washington state law enforcement officers are doing a good job and to hold them at a standard that we don’t even hold high profile elected officials is not acceptable,” said Rep. Rep. Brad Klippert ahead of the 57-43 vote in the House.

Late Friday, on 27-22 vote, the state senate approved HB 1267, which would create a new Office of Independent Investigation within the governor’s office to handle investigations of police use of force cases.

“There are some terrible stories, some tragic, tragic stories,” Democratic Senator Jaime Pedersen explained on the floor as he spoke about hearing from the families of those killed by police.

“And the folks who brought those stories into us petitioning their government for redress of their grievances, at the top of their list was the desire to have a truly independent office investigating deadly force incidents. This is the number one priority of the folks who came together looking for police accountability this session,” he added.

Republicans voiced concern about the new office being created within the governor’s office.

“To have it in a political office regardless of who the governor is, there’s going to be political pressures,” argued Republican Senator Mike Padden.

“There’s implicit distrust because of this,” added Republican Senator Jeff Holy.

The discussion surrounding the need for independent investigation was sparked by families of those killed by police who voiced distrust of cops investigating other cops, as has been the practice among neighboring agencies.

This bill allows former officers to be hired as investigators within the office, so long as they have not been on the force within the prior two years.

At least one family member of a person killed by police who helped shape the legislation says families are OK with that staffing since the bill also lays out the path for an all-civilian investigative body within five years.

These bills all passed with amendments, so they’ll return to their house of origin for concurrence votes before heading to Governor Inslee for a final signature.

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