Attorney General says nothing in WA’s new police laws would prevent cops from responding

Aug 6, 2021, 12:09 PM | Updated: 12:10 pm
Ken Westphal, right, an officer with the Lacey Police Dept. and an instructor at the Washington state Criminal Justice Training Commission, works with cadets LeAnne Cone, of the Vancouver Police Dept., and Kevin Burton-Crow, right, of the Thurston Co. Sheriff's Dept., during a training exercise on July 14, 2021, in Burien, Wash. (AP Photo/Ted S. Warren)
(AP Photo/Ted S. Warren)

Even before a dozen or so police accountability bills passed in the last legislative session in Washington state, some in law enforcement were warning of gaps and unintended consequences in the new bills that could put public safety and officers at risk.

Many in law enforcement have said the new laws won’t change much for them — including the Seattle Police Department — as they have largely been working this way already, but for others, the new laws mark a dramatic shift that leaves no room for ambiguity and uncertainty.

The sponsors of some of the legislation have since admitted there are some fixes needed in the bills, which will likely come in the next legislative session. For now, they have asked the state Attorney General’s Office for more immediate clarity on some of the concerns raised by law enforcement.

Rep. Roger Goodman (D-Kirkland) and Rep. Jesse Johnson (D-Federal Way), the Chair and Vice Chair of the House Public Safety Committee, sought advice from the Attorney General’s Office in response to some of the concerns. The memorandum has since been made public.

One concern from law enforcement agencies after the bills took effect on July 25, 2021, is whether or not they still have the authority to show up to community caretaking calls and calls involving a mental health crisis where no crime has been reported.

The AG’s Office has now clarified that there is nothing in the new laws preventing any officer from responding to any call.

“So we now have official guidance from the attorney general, confirming nothing prevents the police from responding to calls,” Rep. Goodman said. “What matters is what happens when they get there. So we want them to respond, and then when they get there, we know they have a host of de-escalation techniques that they can use to resolve situations peacefully.”

“So, we hope that with this attorney general guidance, the police agencies that have been pausing will now feel free to respond to calls, and go to mental health crisis calls, calls to remove children from abusive households, and other types of calls that they have been engaged in before,” Goodman added. “We don’t want to prevent police from doing the right thing, and we certainly didn’t prevent them from showing up.”

House Bill 1310, the law some agencies are citing as a reason they cannot attend to community caretaking functions, creates a standard of reasonable care for officers when using force against the public. That standard requires officers to exhaust all available de-escalation tactics, to consider the characteristics and conditions of the person to whom force is being applied, and to use the minimal amount of force necessary to bring someone into custody.

Washington law recognizes that police serve as caretakers of the community and often have to respond to situations where no crime has been committed. HB 1310 specifically accounts for that by allowing the use of force “to protect against an imminent threat of bodily injury to a peace officer, another person, or the person against whom the force is being used.”

The vast majority of officers have been successfully assisting Designated Crisis Responders. Washington has been training de-escalation strategies and expanding investment in co-responder programs for years. Unfortunately, while the majority of community caretaking calls are handled successfully and professionally, that has not always been the case. Unnecessary uses of force have disproportionately affected Black and brown communities, and these incidents have eroded trust between law enforcement and the community.

Because of that, the goal of HB 1310 was to ensure equitable treatment of all communities by law enforcement where everyone can expect the same degree of reasonable care.

Still, Democratic Rep. Jesse Johnson, a sponsor of the bill, recognizes that there is some change needed in the language as it relates to the Involuntary Treatment Act (ITA).

“What we’re going to have to do is make a direct reference to the ITA in legislation. But what this [AG guidance] will do is say that there will be no sanctions upon any officer for transporting an individual in a mental health crisis,” Johnson explained.

“So if something happens where physical force is used, they’re not liable in any way, and that’s what the AG is saying. That’s what the Criminal Justice Training Commission has said is they won’t put any sanctions on an officer if physical force is used, so it helps with the liability question,” Johnson clarified. “It also ensures that they can attend these situations and help in any way that they can. What we still have to do is go back and just make that direct reference to the ITA in 1310, which will happen during session.”

Johnson says the same is true for the less lethal bean bag options in the now banned launchers – basically explaining that whatever officers used to do is fine until lawmakers fix that language.

In addition to the concerns that have already addressed, there are other issues that the AG is expected to provide an official opinion on soon.

“We’re going to ask that the AG define physical force, which is something that we’re also going to ask in the context of an investigatory situation where there’s only reasonable suspicion and probable cause, when it becomes apparent that an individual will not comply,” Johnson said. “So when there’s obstruction of justice, can they use physical force? … The laws say that obstruction is a real thing, and they can use physical force, but what they’re saying is prosecutors aren’t prosecuting obstruction for low- to mid-level crimes. So we want the AG to weigh in because that will then hopefully prompt prosecutors to prosecute that.”

Johnson also says they will ask the AG to define the terms “possible,” “available,” and “appropriate” when it comes to physical force or lethal force events and when it may be not possible, not available, or not appropriate to use de-escalation in respect to how agents define those terms.

“And then the final question will be, we banned chokehold and neck restraints. And since 1054 and 1310, we say an officer can use any maneuver if it’s to protect his or her life or the life of another person, it just [needs] to be clear that they can use a chokehold or neck restraint to protect their own life, which, yes, that’s our intent they can use that,” Johnson said. “… Even though it’s banned as a tactic, we want it to be [that] officers can use anything if they’re protecting their, his or her, life. During the fight for their life, they can use any tactic.”

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Attorney General says nothing in WA’s new police laws would prevent cops from responding