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I-940: Washington use-of-force bill advances despite constitutional concerns

Title-only bills will soon be challenged in court. (AP Photo/Elaine Thompson)

Washington is the hardest state in the nation to prosecute officers in use-of-deadly-force cases because of the requirement to prove officers acted with malice and without good faith.

RELATED: Seattle police report “extraordinarily low” use-of-force

Families of people killed by police have previously tried to get the law changed in the Legislature and failed. This year, through the De-escalate Washington I-940 Campaign, enough signatures were gathered to get I-940 on the November ballot. However, the Legislature gets to take a look at it first. Lawmakers have three choices: pass the initiative as-is so it becomes law; reject or ignore it in which case it goes to the ballot; or amend it.

If lawmakers amend I-940, both the original and amended versions must go to voters.

The plan

At the initial a public hearing a couple of weeks ago Steve Strachan, Executive Director of the Washington Association of Sheriff’s and Police Chiefs said most in law enforcement did not support I-940 as written, but he did not close the door on it.

“We oppose Initiative 940, however we’re not just saying no,” he said. “We’re interested in actively working to come together with proponents of I-940 to find a better way. We’re honored to serve in this valued profession. We are interested in serving everyone in our community and we look forward to finding ways toward our common goals.”

Over the past couple of weeks that’s exactly what happened. Spurred by lawmakers — including Democratic Representative Roger Goodman and Republican Representative Dave Hayes — law enforcement representatives met with I-940 organizers. They negotiated an agreement.

The plan: Have the Legislature approve I-940 as is, along with what Goodman called a “perfecting” bill, HB 3003. The bill further clarifies the good faith standard when prosecuting use-of-force cases, as well as the training and first aid requirements included in the initiative. The House bill would amend I940 as soon as it was enacted with the agreed upon changes in HB 3003.

Both measures sailed through the House Public Safety Committee Tuesday, and were expected to quickly pass the House before coming up for a vote in the Senate Law and Justice Committee Wednesday.

The plan goes sideways

The plan went sideways Tuesday night when the House scrapped the vote on the measures. There were concerns in the Senate that the process of passing the House bill equated an amendment of I-940. That would be unconstitutional.

That concern stemmed from a 1971 State Attorney General opinion. Many believe the opinion made clear such a change amounted to amending the initiative, therefore requiring it to go to the ballot along with the original initiative.

Lawmakers and supporters of the effort worked for hours Wednesday morning to come up with a solution, and that appears to be moving forward quickly.

HB 3003 passed the House Wednesday afternoon with an amendment that will see it take effect one day after I-940 does (assuming it is also approved by the Legislature). Lawmakers say that avoids any question about its constitutionality — I-940 will officially be a law one day after it is enacted, making it exempt from initiative rules. That also has HB 3003 kicking in 91 days after passage, which is enough time for anyone opposed to bring a referendum.


Supporters from law enforcement, I-940, and lawmakers who helped negotiate the plan say that this was a combined effort from all parties that will help rebuild the trust between law enforcement and the community.

The plan appears to have a lot of support in both the House and Senate.

Both I-940 and HB 3003 cleared the Senate Law and Justice Committee Wednesday, while the House has approved HB 3003. The House is also expected to approve I-940 once the Senate acts.

That all has to happen before the end of session Thursday. Then the bills have to be sent to Governor Jay Inslee, who says he will sign it as soon as it gets to his desk.

As for question of constitutionality, State Attorney General Bob Ferguson says while his office won’t provide a legal analysis, it will, “defend whatever the Legislature does on this issue.” The AG’s office says Ferguson has been saying for a year that the statute relating to police use-of-force in Washington should be changed.

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