Last week a few bills that give cops more authority to use force against the public advanced out of House and Senate committees with bipartisan support. The bills set the stage for Democrats to roll back rather than simply "tweak" key police accountability measures they passed last year. Meanwhile, more substantive measures to reduce police brutality look dead on the vine. A bill allowing people to sue cops for violating civil rights (i.e. ending qualified immunity) died this week, as did a bill to give the Attorney General's Office more freedom to investigate and prosecute cops who kill.
These moves come after intense pressure from police lobbyists and suburban mayors, and over the objections of police accountability groups such as the Washington Coalition for Police Accountability, which held a rally in Olympia last week opposing the proposed rollbacks.
HB 1054 and HB 1310
All the confusion and consternation surrounds provisions that stemmed from two House Bills that passed last year, 1054 and 1310. The former proposal regulated "police tactics" and equipment, limiting the kinds of military weapons cops could use, setting parameters on car chases, and banning chokeholds, no-knock warrants, and shooting at moving cars. The latter bill established a statewide standard for the use of force. It also required cops to de-escalate situations and then use force if they have probable cause, or if the threat of injury was "imminent." In other words, the former bill told cops how they could get you, and the latter told them what they could do to you once they got you.
When the legislation went into effect last year, some law enforcement agencies threw up their hands at what they described as poorly written laws.
Some of their objections made sense, but some of their objections seemed like sour grapes. For instance, clumsy language in the "tactics" bill prevented wildlife agencies from buying shotguns and cops from buying those launchers they shoot at protesters; results the Legislature did not intend. In the other direction, for fear of running afoul of the new statewide use-of-force standard, many cops just flat-out stopped involuntarily committing people in crisis despite the Attorney General and other lawyers saying they could. Though police chiefs need no help willfully misreading accountability standards, they could chalk up their conservative readings to fears about job security, pointing to a new law the Legislature also passed last year that made it easier to decertify cops.
Last month, in response to questions from lawmakers, AG Bob Ferguson "strongly urged" the Legislature to clearly define the term "physical force" to avoid confusion on that matter and a number of others. (Note: In the meantime, cops haven't gone without a working definition. The Criminal Justice Training Commission has been teaching them that "physical force" means "any technique or tactic reasonably likely to cause pain or injury.") This session lawmakers answered that call with some targeted bills. House Bill 1719 cleans up the less-lethal weapons issue, and it's moving right along. HB 1735 tells cops they can touch people when responding to noncriminal matters such as mental health calls, and it's moving right along as well.
But Senate Bill 5919 and HB 2037 all do much more than just iron out the wrinkles in two of the dozen police accountability laws passed last year. They give cops more authority to use force on people for maybe committing low-level offenses, and victims of police violence know whose bodies will bear the brunt of that pain.
SB 5919, which could be pulled for a vote on the Senate floor at any moment now, allows cops to use physical force during brief investigatory stops (aka "Terry stops") based only on a reasonable suspicion that the person was engaged in criminal activity.
Reasonable suspicion is the lowest threshold cops need to meet to justify stopping someone walking down the street or driving down the road. Courts often define the term as "more than a hunch." The higher standard is probable cause, which cops can claim when they actually see someone committing a crime.
The bill also requires cops to use de-escalation tactics before initiating physical force, but it gives them several loopholes; they have to use “available and appropriate" de-escalation tactics "when possible." And when cops do decide to use physical force, the proposal says they can use a "proportional" amount of force rather than the "least" amount of force necessary, which is less protective.
Cops say they need to be able to use force to effect these stops in order to settle the scene and keep people from fleeing. Police accountability groups say cops can already arrest for obstruction if someone flees a lawful stop, though that analysis runs counter the AG's opinion on the issue. Nevertheless, they say lawmakers don't need to pass a new law that would give cops even more leeway to abuse disproportionally high numbers of Black and brown people for stuff they probably didn't even do.
According to data from the Seattle Police Department, only 26% of Terry stops concluded in an arrest last year, and the rest were just let go with or without an offense report. Furthermore, the latest report on these brief detentions showed persistent racial disparities, though the police monitor argued that those disparities didn't necessarily indicate bias. Meanwhile, in Pierce County, cops use force against Black people at more than five times the rate of whites, while Native Americans in that county face more than twice the amount of force relative to whites.
In her testimony on the bill, Darya Farivar, director of public policy at Disability Rights Washington, argued that miscommunication during brief detentions can lead to deadly outcomes, especially for people with mental illnesses or disabilities that cause them to respond in ways that others may not. She mentioned the case of John T. Williams, a Native woodcarver with a hearing disability who was shot by cops five seconds after an officer told him to put down his closed knife.
ACLU police practices attorney Enoka Herat called the bill "a dangerous step backward," one that would "increase harm to communities" and hobble progress on police accountability that she attributed to last year's new use-of-force standard. According to an ACLU analysis of data collected from Fatal Encounters and the Washington Post, cops killed fewer people in Washington state last year than they have since 2015, with killings down 62% from the year before. The ACLU noted an abrupt change in the rate of cop killings after the bill passed in April, which gave them hope the drop wasn't just a fluke.
The House's answer to the AG's call, HB 2037, defines physical force the way SB 5919 does, but it narrows its use during Terry stops only to instances where people try to flee.
The bill's sponsor, Public Safety Committee chair Roger Goodman (D-Kirkland), essentially argued that letting cops use force to prevent flight would reduce harm. He believes people who run from a cop trying to stop them — even for completely understandable and legitimate reasons — would give the cop probable cause for an obstruction arrest, which would license the cop to use force anyway and also saddle the person with an arrest record. Under his bill, you'd get the grab but potentially not the mark.
During their testimony, the police accountability advocates, including Campaign Zero co-founder / puffy blue vest promoter DeRay McKesson and National Police Accountability Project rep Eliana Machefsky, argued the real danger of cops escalating more situations with force outweighed concerns about the cops not immediately nabbing someone for maybe committing a low-level offense.
"This is one of the few clauses we look for in every single city, every state, every policy, because we see the fleeing clause as a slippery slope that allows the police to say 'this is just physical force' and we know that physical force very easily turns into deadly force," McKesson said.
The family of people killed by cops backed up that account. Shelly Washington said Clark County cops shot at her nephew, Kevin Peterson Jr., 34 times as he turned and ran after cops confused his phone with a gun during a stop prompted by a SnapChat post. A Spokane police officer killed Debbie Novak's son in 2019 within 11 seconds after someone called in a false report on him. She thinks probable cause should be the standard for use of force, as it is now, because “a life deserves this.”