Law enforcement calls for Attorney General’s opinion on new police laws

Jul 24, 2021, 7:35 AM

policing laws...

Police and Washington State Troopers block protesters from passing near freshly broken windows during an anti-police protest on January 24, 2021 in Tacoma, Washington. (Photo by David Ryder/Getty Images)

(Photo by David Ryder/Getty Images)

With multiple new laws on policing set to take effect statewide on Sunday, July 25, law enforcement across the state have been warning of potential unintended consequences and confusion over contradictory and sometimes vague language in a few of the bills that some warn could ultimately be a threat to both officer and public safety.

“This is taking 150 years of American policing and basically throwing it out and starting over,” said one veteran officer from a large agency in Puget Sound who asked to remain anonymous.

Individual agencies have issued their own warnings, including the Snohomish County Sheriff’s Office, while others, such as the Seattle Police Department, say the new laws will have limited impact on their officers because much of the policy is in line what they do already.

On Thursday, Clark County Sheriff Chuck Atkins issued a highly critical review and implementation plan of the new laws.

“These new laws were not passed by a vote of the people, but by legislators who to varying degrees did not constructively collaborate with various law enforcement groups during the legislative process,” Atkins wrote in a flash alert.

“Our concern is that the new legislation will have some unintentional consequences that could put the public and police officers in jeopardy. I expect that people could see a reduced police response and extended investigations as a result. I expect that despite our best efforts to the contrary, Clark County could be on a trajectory now to see the same type of increased crime and violence that larger cities are experiencing – elsewhere in Washington, Oregon, and across the country,” he added.

On Friday, a group of law enforcement agencies from the South Sound signed a letter warning about the significant changes in the new laws and how they will change the way police respond, or if they respond at all to some calls.

“Police chiefs from Olympia, Lacey, Tumwater, Tenino, Yelm, the Evergreen State College Police and the Thurston County Sheriff’s Office collectively want to inform the community about the new laws and how police responses will be changing,” reads a letter signed by the agency leaders to their community.

In Yakima County, police warned KIMA TV that dangerous people would go free because of changes in the law that dramatically limit police pursuits.

Spokane’s Police Chief also voiced serious concerns about his officers’ ability to protect the community once the new laws take effect, telling KHQ TV he had specific concerns about domestic violence situations. His fellow law enforcement officers followed suit this week, expressing deep concern with new use of force policies.

Spokane County Sheriff Ozzie Knezovich this week took issue with HB 1054, the tactics bill, and the requirement to get specific approval from the Chair of the Board of County Commissioners before using tear gas during a riot, and commissioners are backing that stance.

“This is yet another example of government overreach by our State Legislature. Our Sheriff is elected by the voters of Spokane County to do a job. Requiring the Sheriff to get approval from the County Commissioners before utilizing techniques to deescalate a dangerous situation is not in the best interest of our community or public safety,” said Josh Kerns, Chair of the Spokane County Board of Commissioners.

The Washington Association of Sheriffs and Police Chiefs (WASPC) has been greatly involved in this process with these new laws, and worked very closely with legislators and community members over the past several years on I-940, which WASPC champions as a victory. However, WASPC has several concerns with some of these new laws that were also voiced during the legislative process. The most important thing, according to WASPC Executive Director Steve Strachan, is to ensure the public is aware of the changes they’ll see from police come Sunday.

”Some of [the new laws] are hard to fit into certain situations that law enforcement has traditionally responded to. And a few of them, unfortunately, are contradictory between each other, and trying to sort of determine what was the intent here versus what the law says, and ultimately, law enforcement needs to follow the law, and trying to balance that with the goals of reform has been a challenge,” Strachan said.

One example of the possible contradictions is in HB 1054, which puts restrictions on pursuits and certain types of equipment. The law states very clearly that firearms over 50 caliber are prohibited statewide. The problem?

“What is included in that then is sort of the large bore rifles that shoot, or firearms that shoot beanbags, which are the less lethal tools that law enforcement uses to de-escalate situations in order to avoid using deadly force in certain situations,” Strachan explained. “The law says, specifically, anything over 50 caliber is prohibited, period, there is no exception for less lethal or beanbags.”

At the same time, a separate bill, HB 1310, clearly states officers must exhaust all less lethal options before using force.

“So departments have a choice to make whether or not to follow the law, or to try to follow a different part of the law that was passed,” Strachan said.

That’s an oversight by lawmakers and law enforcement involved in the legislative process, according to the sponsor of both bills, Democratic Rep. Jesse Johnson.

“What we did not know and what law enforcement did not catch in the legislative process is that there are some shotguns that shoot those beanbag rounds. And so we’ll have to go back and do a fix to allow for those shotguns that shoot the bean bag rounds,” Johnson said.

Another area getting a lot of attention and concern from law enforcement involves calls for Involuntary Treatment Holds. These are calls where a behavioral health worker, known as a Designated Crisis Responder, come out to assess whether a person in crisis needs to be taken into involuntary treatment for their own or others’ safety. Since they can sometimes be dangerous calls, law enforcement also typically goes on the calls with the Designated Crisis Responder.

“HB 1310 — it’s very specific, it says [force is not allowed] unless a crime has been committed, or they’re an imminent threat to themselves right now. So use the example of an involuntary behavioral health hold being placed on a person, law enforcement responds with the behavioral health worker, and the person says, ‘No, I’m going to sit on the couch and not go, I’m not interested.’ To place your hands on or otherwise help them along, to actually physically force them into transport is pretty clearly force that is not allowed under 1310,” WASPC Executive Director Strachan explained.

Johnson acknowledged the differing standards for force used in that particular scenario, pointing out that the under the Involuntary Treatment Act (ITA), the threshold for force is when the situation involves someone likely to harm themselves or others, as opposed to the language in HB 1310 requiring imminent threat of harm.

“So we need to go back and reference the ITA and make it that lower threshold for officers to use physical force. That’s definitely going to be a fix that we get worked out through legislation,” Johnson said in a Thursday interview. “And before that legislation, because obviously we have to wait until session to do this, we’re going to work with the Attorney General’s Office to give some sort of indication that officers will not be held liable until that time we make the fix.”

On Friday, Johnson and House Public Safety Chair Roger Goodman issued a joint statement addressing the various concerns of law enforcement, specifically about HB 1310 – the use of force bill.

“Before HB 1310, officers were authorized to use any amount of force necessary to effect an arrest, and there were different use-of-force standards across the state. To establish a consistent, statewide standard, we worked closely with community members and our partners in law enforcement to codify into law the preservation and protection of human life as the highest priority,” the statement reads.

They also acknowledged the growing pains of law enforcement and that it would take time for them to adjust, while stressing the reason behind this change.

“The goal of HB 1310 was to reduce excessive police uses of force by creating a duty of reasonable care and prioritizing de-escalation and less lethal alternatives. This change is in direct response to people, such as John T. Williams or Manuel Ellis, who lost their lives at the hands of police despite having not committed a crime. The legislation codifies the de-escalation tactics that police are currently trained in as mandated by voter approved I-940,” the pair explained.

As far as the issue surrounding allowable force when aiding on an ITA call, Goodman and Johnson say there is nothing in the new law preventing officers from responding to calls for service, and it is law enforcement’s duty to respond.

“The intention of HB 1310 and the other legislation passed this session was to give police the tools, training, and support to intervene in ways that decrease the likelihood of escalation and that prioritize treatment whenever possible,” they said.

“We are working closely with police chiefs and the Attorney General to ensure that law enforcement has clear guidance on how to implement the law. We will continue to seek input from all interested parties on these critical issues before the upcoming 2022 legislative session and, if necessary, we will pursue legislation to eliminate any ambiguity,” the statement concluded.

“Change is always hard. It’s hard for everybody. And this last session, we absolutely made quite a lot of changes to the manner in which we do policing. I think it always is challenging, and I think it’s just a little bit more challenging this time because of the number of changes being made. But I am fairly confident that we will get through this,” said Democratic Senator Manka Dhingra, who also sponsored several of the policing bills taking effect Sunday.

On the claims from Clark County’s Sheriff that law enforcement was not meaningfully engaged and that the new laws are a threat to officer and public safety, Dhingra, a longtime prosecutor, pushed back.

“This is patently false,” Dhingra said.

“We started these conversations very shortly after the George Floyd murder and this was a public outcry from all sectors of our society demanding that there be more police accountability, that we change the culture in our law enforcement agencies. We had Black Lives Matter protests in the city of Duvall, in the city of Woodinville, Redmond, Kirkland. These suburban cities are normally not very engaged in criminal justice reform, but the number of people that turned out to really say that we need to change the culture of policing was tremendous. So, these changes took place because the public demanded it,” she explained.

Dhingra also pointed to how well the bills were “worked” – the process of legislators going back and forth with stakeholders, and eventually with each other to tweak parts of the legislation or eliminate it altogether when legitimate concerns are raised during the process.

“There was a lot of work done on them. So everyone’s voices were heard,” Dhingra said. “Some people may not like the decisions that were made. But this was a very well thought-out process, which had input from a lot of stakeholders.”

Dhingra issued her own joint statement with Democratic Senator Jaime Pedersen, who also sponsored some of the new police laws.

And it’s not just lawmakers defending the process and the laws — some police groups are also taking a stand and backing these changes.

“It’s unfortunate that some in law enforcement are misinterpreting these laws, disregarding what we believe is clear legislative intent and are using these changes to politicize their implementation. This is a time for leadership and for those of us in law enforcement to get this right. Proper implementation of these bills is too important to do otherwise,” said Marco Monteblanco, president of the Washington Fraternal Order of Police (WAFOP) in a statement.

Monteblanco supports calls for an official opinion from the state Attorney General regarding the legislation as it relates to the use of bean bag rounds in weapons that will no longer be allowed come Sunday.

He also expressed concern over multiple law enforcement agencies’ interpretation of the law that would lead to them no longer using those less lethal options.

“While we can understand and appreciate law enforcement’s desire to bring additional attention, clarity and consideration to the laws adopted by the Legislature in 2021, we believe that elimination of these less-lethal weapons could have the opposite effect, compromising not only the safety of our officers, but also the public we serve. WAFOP worked closely with the Legislature on these bills, and believe we understand lawmakers’ intent and the context in which the bills were passed,” Monteblanco said.

“When read together, ESHB 1310 and ESHB 1054 reinforce what is common practice within the law enforcement profession, namely the use of the lowest level of force necessary in pursuit of the lawful purpose of our officers’ actions,” he added.

However, given all of the issues raised, WAFOP is also supporting calls for the AG to clarify.

“What would help most right now is a formal written legal opinion from the Office of the Attorney General so that law enforcement and the community have a clear sense of how the new legislation is to be applied,” Monteblanco said. “This would clarify lawmakers’ intent in adopting these measures and position the Legislature to remove any ambiguity about the bills in the 2022 session.”

Read the full WAFOP Statement here.

The bills in effect or taking effect Sunday, with links to the 2021 legislative hearings held and aired on TVW are:

  • HB 1310, which creates a standard for when officers can and cannot use force.
  • HB 1054, which dramatically limits police tactics, including severe limits on pursuits, the use of military weapons, while also banning no knock warrants and neck restraints, along with additional changes.
  • SB 5051, commonly referred to as the “decertification bill,” creates a much stronger system for certification for officers who violate public trust.
  • SB 5055 is getting minimal criticism. It has to do with the selection of arbiters for officers who file grievances or appeal disciplinary action against them.
  • HB 1098 requires the State Auditor to review any completed deadly force investigation to determine whether the involved actors complied with all applicable rules and procedures, and authorizes the State Auditor, upon the request of the Criminal Justice Training Commission (CJTC), to review a law enforcement agency to ensure compliance with all applicable rules and procedures governing the training and certification of the agency’s peace officers.
  • SB 5259, another less controversial bill that requires all law enforcement agencies in the state to report all use of force to a statewide data collection program the state Attorney General must get up and running by April, with reporting requirements three months after that for law enforcement.
  • SB 5353 had near unanimous support in both chambers, requiring the state Department of Commerce to create and maintain a grant program to foster community engagement through neighborhood organizing, law enforcement-community partnerships, youth mobilization, and business engagement.
  • HB 1267, the independent investigation bill, the follow up and expansion to I-940 that requires full and true independent investigations of law enforcement in deadly use of force cases.
  • SB 5066, the duty to intervene bill that is specifically written to avoid situations like the death of George Floyd. It requires an officer to intervene when they witness another officer using excessive force, and also to report another officer they see violating the law or the policies of the witnessing officer’s agency. This bill also requires agencies to report all violations of the duty to intervene or failure to report wrongdoing to the CJTC for possible decertification.
  • HB 1088 requires law enforcement agencies to report all misconduct to prosecutors that could raise questions about their credibility as a government witness (Brady List/Impeachment Disclosure), and to ask all new hires with prior law enforcement experience whether they have ever been subject to potential impeachment disclosure.
  • SB 5476, which is the Blake fix bill. While not part of any original police reform bills this bill is the “fix” for the state Supreme Court’s February “Blake” decision, which found the decades-old law for simple drug possession unconstitutional as prosecutors were not required to prove a person knowingly had the drugs. That led to no law being on the books for a time, until lawmakers passed this bill that took effect immediately after the Governor signed it, dramatically changing the norm for police in dealing with simple drug possession. This bill is often listed by law enforcement critical of the new police laws as being part of the problem.

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