Many of you were hoping for criminal charges against Seattle Police Officer Ian Birk for killing John T. Williams last August. You know, the charges that seemed possible after release of a shocking video of the shooting, a lengthy public inquest that found many jurors doubting Birk's version of events, and protests held throughout the city? Charges that seemed possible after even the Seattle Police Department's Firearms Review Board found the shooting unjustified?
You're probably never going to see those charges announced. That's the between-the-lines upshot of a conversation yesterday with Ian Goodhew, King Count Prosecuting Attorney Dan Satterberg's deputy chief of staff.
So why won't we see charges?
In order to press criminal charges against Birk, prosecutors would have to make a case that he acted out of malice—an incredible high bar set by Washington State law. "Malice is a very well defined, well used term in criminal law—it means evil intent," explains Goodhew, who wouldn't directly say that Birk won't be charged. But the writing's on the wall (or, rather, in the statute). "Unless we can show an evil intent, he’s not criminally liable."
Goodhew also seems to expect that the prosecutor's office will have to explain this—and that it might not jibe with popular opinion. "I guarantee we’ll be explaining to folks what the law is. But in the end, I hope people want us to be making our decision based on the law and not on how many people we hear from."
Whether or not the law makes sense—which may be a fight we'll hear more about—the issue comes up in statutes relating to self defense. The real wonky shit after the jump.
There are essentially two self-defense areas of law: one that applies to general citizens (and off-duty officers) and one that pertains to instances where officers are authorized to use deadly force. When deciding whether or not to press criminal charges against Birk—or any on-duty officer who kills someone—Satterberg uses this 20-year-old state statute, which outlines when use of force is justified by a police officer. Section three holds the money quote:
A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section.
This sentence alone contains two hurdles for prosecutors: proving Birk acted with malice when he shot Williams, and disproving Birk's "good faith belief" that he had a reason to use deadly force. While malice is well defined, Goodhew says that a "good faith belief" is nebulous and difficult to disprove (an officer can have a good faith belief that causes him to fire his weapon but still be wrong that the action was warranted).
For the prosecutor's office, it's not about proving whether or not deadly force is justified—any time an officer feels that their safety or public safety is threatened, force becomes justified. "Basically, as the law is written, if you’re an on-duty officer and the shooting's not intentional, and you’re not reckless, then you’re not guilty of either murder or manslaughter," Goodhew says. Furthermore, "in order to charge anyone, ever, we need to have proof beyond a reasonable doubt."
Put another way, the law is too broadly written to ever convict an on-duty officer of criminal charges unless he precedes his use of deadly force by declaring something like, "I'm going to kill you even though you're unarmed and no real threat to me because I am mad with power and surely I can spin this into a heroic act deserving of a medal." BANG! BANG! BANG!
In fact, if Satterberg were to miraculously press charges, it would be the first time in 30 years that criminal charges were brought against an on-duty police officer for firing his weapon. Interestingly enough, it seems that legislators didn't intend for the law to be interpreted so broadly. If you look at the note—the legislative recognition—at the bottom of the statute, it reads:
The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens' permissible use of deadly force under the authority of RCW 9.01.200, 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers.
In other words, the legislature has a disclaimer saying that law enforcement should be held to higher standards than civilians with regards to using deadly force, and yet the law actually lowers that bar.
"As citizens, when facing criminal charges like this, we would have to show that we believed there was a threat and objectively, that there was a threat," says Goodhew. "You and I do not have, under general self-defense statutes, do not have [the officer-afforded] exceptions of malice and good faith."
Goodhew says Satterberg has met with several groups of people who want to see criminal charges filed against Birk. These people, many people, are going to be upset if (or rather when) Satterberg declines to press criminal charges. Again, Goodhew stresses that, "We’re looking at every piece of evidence in the case and applying the law to that evidence. We’ll make our decision based on this law."
Clearly, then, the law needs to be rewritten.