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.”

Follow Hanna Scott on Twitter or email her here

Local News

1400 S 320th St, Federal Way, WA 98003 (courtesy of King County)...
MyNorthwest Staff

King County to repurpose homeless hotel to house Afghan refugees

$500,000 will assist Afghan refugees in the form of temporary housing and community services at Federal Way’s Extended Stay America.
22 hours ago
Dow Constantine, King COunty vaccine mandate...
Nick Bowman

King County reaches deal with ‘majority’ of unions on vaccine mandate

Officials say they have reached an agreement with a "majority" of unions on a vaccine mandate for King County employees taking effect in October.
22 hours ago
Sound Transit Northgate light rail...
KIRO 7 News Staff

Three new light rail stations to open in North Seattle next month

Commuters will soon be able to ride underground from Downtown Seattle to Northgate traffic-free when three new Link light rail stations open next month.
22 hours ago
capital gains, legislative districts...
Nick Bowman

Washington Republicans, Democrats spar over redrawing of state’s legislative map

The redrawing of Washington's state's legislative districts already has Democrats and Republicans at odds, with less than 2 months to come to an accord.
22 hours ago
Lenny Wilkens...
Dalton Day

Sonics’ Lenny Wilkens to be immortalized in namesake at Climate Pledge Arena

Seattle City Council voted to have “Lenny Wilkens Way" take the place of Thomas Street between 1st and 2nd Avenue North by Climate Pledge Arena.
22 hours ago
washington hospitals, test, variants...
Kathryn Altena

UW researchers help develop test to detect COVID variants in hours, not weeks

Researchers with the University of Washington are helping to develop a test that can identify different variants of COVID-19 within two hours.
22 hours ago

Sponsored Articles

By IQ Air

How Poor Air Quality Is Affecting Our Future Athletes

You cannot control your child’s breathing environment 100% of the time, but you can make a huge impact.
By Swedish Health Services

Special Coverage: National Prostate Cancer Awareness Month

There are a wide variety of treatment options available for men with prostate cancer. The most technologically advanced treatment option in the Northwest is Stereotactic Body Radiation Therapy using the CyberKnife platform.
Marysville Police Department

Police Opportunities in a Growing, Supportive Washington Community

Marysville PD is looking for both lateral and entry level officers. Begin or continue your career in law enforcement for a growing, supportive community.
Courtesy of JWatch Photography....
By Experience Anacortes

Summer Fun Activities in Anacortes

With minimal travel time required and every activity under the sun, Anacortes is the perfect vacation spot for all ages.
By Alaska Airlines

Calling all football fans: follow Russell on the road

Take your Northwest spirit that we’re known for on the road this season with Alaska Airlines.
By Marysville Police Department

Police Opportunities in a Growing, Supportive Washington Community

Marysville PD is looking for lateral and entry level officers. Begin or continue your career in law enforcement for a growing, supportive community.
Attorney General says nothing in WA’s new police laws would prevent cops from responding