King County Prosecutor Dan Satterberg (right) declined to charge Ian Birk (left) for killing John T. Williams because f hte states malice standard.
King County Prosecutor Dan Satterberg (right) declined to charge Ian Birk (left) for killing John T. Williams because of the state's "malice" standard. The Stranger

We were never supposed to vote on Initiative 940.

The police reform ballot measure was originally an initiative to the legislature, which means voters don’t need to weigh in if the lawmakers take the issue up. State lawmakers passed the initiative earlier this year after brokering a compromise between police unions and police reform advocates, making it easier to hold cops criminally accountable when they unjustifiably kill someone.

But the Supreme Court ruled the legislature’s process behind that compromise was unconstitutional, so the measure got put on this year’s ballot. With the compromise dead, police unions across the state campaigned against the initiative. Local conservative talk radio warned that "officers will be served on a platter for prosecution" and the Seattle Times quoted an unnamed police officer calling a former Seattle police chief that supported the reform a “turncoat.”

Voters overwhelmingly settled on the side of police reform, passing the initiative on Tuesday with almost a 20-point margin.

That means Washington state law will no longer make it nearly impossible to criminally charge a cop for killing someone. I-940 removes the state’s so-called "malice standard" for holding cops accountable, which required prosecutors to prove that an officer acted with “evil intent” when they killed someone, a standard so difficult to prove that it made it essentially impossible to charge any killer cop in the state, for whatever reason. This “malice” standard is what King County Prosecutor Dan Satterberg has said multiple times prevented him from charging killer cops, including in the case of SPD Officer Ian Birk’s shooting of John T. Williams in 2010.

But I-940 passage also means state law no longer reflects that compromise struck between police unions and reformers. So, what happens now?

State Rep. Roger Goodman, who led the compromise in Olympia earlier this year, said he is going to work hard to pass a new law that will update I-940 so it looks the same as what was passed by the legislature earlier this year. The Democrat from Kirkland said he has scheduled a working meeting next week and the first legislative hearing on the matter in December with a plan to approve the changes early next year.

“We don’t want to wait. We want everyone to have peace of mind that we are going to enact this agreement and get it done soon,” Goodman said. “I am convening a work session on Dec. 3 where the parties of all sides will hopefully come and testify for the amendment language. I expect everyone will agree that we will go ahead and enact the agreement that we forged back in the spring.”

Goodman will need the support of two-thirds of his colleagues in the House and the Senate to modify the new initiative, but he said he was confident the support was there. Police groups, including the Washington Fraternal Order of Police, have come out in support of Goodman’s plan to update I-940.

Goodman said the new language will make I-940’s language more clear without making it harder to charge cops that kill someone unjustifiably.

“Malice will definitely never appear again in the justification standard, and the good faith language will be refined and clarified,” Goodman said.

I-940’s original language, which is now state law unless the legislature acts, creates a two-part test for judging if a cop shot someone unjustifiably. The prosecutor must prove that the cop believed “in good faith” that the use of deadly force was needed. This is called a “subjective” test because it is based on that specific officer’s intentions. The second test is if a “reasonable officer” placed in the same situation would have also used deadly force. This is called an “objective” test because it asks what a hypothetical “reasonable officer” would do in the same situation, instead of asking what the officer in question believed at the time.

The compromise that Goodman brokered in the legislature, which he hopes to pass again, removes the subjective test and leaves only the objective test. Goodman said removing the subjective test makes the law stronger and more clear.

“[The subjective test] is less transparent language, it’s not as easy for the public to understand. We are just going to make clear that... the use of force would be justified if any reasonable officer would have used force in the same situation,” Goodman said.

Andre Taylor, the founder of the police reform group Not This Time and one of the organizers of the I-940 campaign, said Goodman’s plan to update the law had his support. He said I-940’s success at Tuesday’s election showed the power of community building.

The state legislature changed a number of other aspects of I-940 when they struck their compromise earlier this year, including modifying how first aid is required to be administered by cops when they kill. Those changes will also be reflected in the new law, according to Goodman.

“When people come together from all backgrounds and decide that they want change they get it,” Taylor said.

Taylor became a police reform advocate after his brother, Che Taylor, was shot and killed by SPD cops in North Seattle in 2016. Taylor was part of a group in 2016 that created an initiative to remove the malice standard, but that measure failed to get enough signatures. Taylor said that failure led to I-940’s success.

“It’s just a journey that’s been very difficult. To have the fortitude to continue to press through the good and the bad and the ugly for almost three years now. It’s wonderful to see the manifestation of the will of the people,” Taylor said. “It’s a beautiful thing for our state and for all people.”