SB 5073: ‘Malice’ and controversial police shootings

There have been attempts to remove the word “malice” from Washington state law involving controversial police shootings. But two lawmakers hope their bill (SB 5073) will make it through the Legislature.

State Senator David Frockt, D-Seattle, and House Representative Cindy Ryu, D-Shoreline, are introducing companion bills to their respective legislative bodies. Each is aimed at reforming policing in Washington state after a series of controversies stirred the nation.

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“(The bill is in response to) all the modern policing issues we are seeing come up again and again around the country, with the idea of trying to find a way forward and bridging the divide and making people feel comfortable with the policing they are getting,” Frockt said. “But also understanding and recognizing the difficult and dangerous work our law enforcement officers do every day.”

Frockt is proposing SB 5073. The bill is currently in committee. It is the result of a task force that the Legislature charged with updating policing policy in Washington and fostering a better environment for police-community relations. The task force included legislators, law enforcement officials, public defenders, prosecutors, civil rights groups, and community representatives. Frockt said that this bill takes recommendations from that task force and returns them to the legislature, facing a controversial issue.

“When Olympia doesn’t want to deal with a thorny issue, we create a task force and then nothing happens,” Frockt said. “You see that happen, unfortunately, with things like education and other areas. I thought it was important after we spent four months working with civil rights groups, law enforcement, community leaders from around the state, to come forward with recommendations to modernize our policing and create confidence in communities … that we have a bill that reflected those recommendations.”

SB 5073 and police

What SB 5073 does is take on use-of-force policy in Washington. It also deals with training and de-escalation tactics. Specifically, current state law uses the word “malice” when dealing with police shootings. Essentially, if prosecutors cannot prove malice in an officer-related shooting, it is very difficult to make a charge stick. It is an issue that others have taken up in Washington.

“There is some growing consensus that it might make sense to take the word ‘malice’ out of the statues,” Frockt said. “That is an unusual feature of our law that is really outside of officer defense statutes in almost every other state in the country, and is inconsistent with Supreme Court cases, in my opinion.”

Frockt said his bill replaces “malice” with an objective standard.

“What I am proposing in this bill is that the standard would be if a reasonable officer would have believed the use of deadly force was necessary in light of all the facts and circumstances known to the officer at the time,” Frockt said. “That is a standard used in the vast majority of jurisdictions in evaluating if deadly use of force was proper.”

“It still affords a defense to an officer … but at the same time, when there are situations where their actions were not reasonable or their actions were negligent, in light of what was known to them at the time, that a prosecutor might be in a situation that charges would be warranted,” he said.

“In the rare instances when something highly questionable happens,” he added. “I think the law has to reflect and be modernized to where we are as a society. That is not to say officers are going to be prosecuted willy-nilly. I think it reflects a balance and middle ground …”

Frockt points to previous controversial police shootings in Washington that have left community members unsatisfied with the justice system, or how the law played out. For example, the John T. Williams shooting in Seattle. Williams was a Native American woodcarver who was shot and killed by a passing police officer.

“Certainly in the Williams case, Prosecutor Satterberg has been clear that he might have pursued some kind of case in that situation if not for the current state statute,” Frockt said. “They are very rare, and we have to make sure that we’re protecting police when they act reasonably in a difficult situation. But on the other hand, when the actions are not reasonable, there should be some legal recourse available to prosecutors.”

Frockt said he believes his version of SB 5073 won’t be what is eventually considered in the senate. But he feels it is a good start.

“I think there is a needed change in our use-of-force statute to remove the word ‘malice’ from the statute as one of the defenses …” Frockt said. “And it’s been very controversial. At the same time, we emphasize the need for better training, education, best practices for investigations when these things occur. The idea is to find a way to improve and enhance policing techniques so there are less of these confrontations and when they do happen, they are investigated in a way the public has confidence in them.”

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