Author: Force Science Institute
By Steve Miletich The Seattle Times
SEATTLE — In the 32 years since state lawmakers dictated that police officers must show evil intent before they can be criminally charged for misusing deadly force, one officer was prosecuted and he was found not guilty.
Some say that is because police have acted with great care, killing only when necessary. Others say the steep legal hurdle has masked reckless conduct, giving police a license to kill.
If Initiative 940 is approved at the polls, prosecutors would no longer have to prove law-enforcement officers acted with “evil intent” — or so-called “malice” — when considering whether to file criminal charges such as manslaughter in cases where police allegedly misuse deadly force.
The legal terminology is confusing. So is the convoluted path the statewide measure took to the Nov. 6 ballot.
Moreover, the measure is likely to continue on its complicated course even after voters have spoken.
Here’s how it got to this point:
Spurred by controversial police shootings statewide and the Black Lives Matter movement, supporters of I-940 obtained enough citizen signatures to place the measure on the ballot.
It strips the malice language — which is unique to Washington state — that has made it virtually impossible for a prosecutor to criminally charge a police officer who recklessly or negligently uses deadly force.
In addition, it requires de-escalation and mental-health training for police; requires officers to administer first aid to a victim of deadly force; and requires independent investigations into the use of deadly force.
When critics raised concerns about some of the wording, the initiative’s backers, De-Escalate Washington, and law-enforcement leaders agreed on a substitute compromise bill that state lawmakers enacted earlier this year.
The restrictive malice language was still gone. But new, more acceptable language governing police use of deadly force was added, along with other adjustments.
The bill, signed by Gov. Jay Inslee, was hailed as a model of cooperation, although some police groups maintained their overall opposition on grounds that the measure, among other things, would make police less willing to confront dangerous people.
But after a legal challenge to the Legislature’s authority to modify a citizen initiative, a judge and the state Supreme Court ruled that it must go on the ballot in its original form.
If I-940 passes, lawmakers would be free to amend it when they return to Olympia for the 2019 session, although for two years that would require a two-thirds majority.
If I-940 fails, the bar for legislative change is lower: They’d need a simple majority to instead approve the compromise bill.
Both sides have vowed to maintain their support for the modifications, such as clarifying that police officers must provide first aid at the earliest safe opportunity.
Rep. Roger Goodman, D-Kirkland, chair of the House Public Safety Committee and one of the lawmakers who helped negotiate the compromise bill, has said he believes that deal between law enforcement and De-Escalate Washington would remain in place.
But others aren’t sure of that, which has led to an unusual situation in which a yes or no vote can be interpreted differently.
Here are the choices:
1. Vote yes, knowing I-940 could stand in its original form or be amended by the Legislature.
If approved, Washington would no longer be the only state in the country that requires prosecutors to meet the malice burden.
“This almost perfect defense to a mistaken use of force has kept police officers out of court as defendants,” King County Prosecuting Attorney Dan Satterberg has said.
Data compiled by The Seattle Times in a special report on the 1986 malice law counted 213 fatal police shootings in Washington between 2005 and 2014. The lone case in which an officer was criminally charged in the shooting of a driver and found not guilty occurred in Snohomish County in 2009.
In 2010, the Seattle shooting of John T. Williams sparked outrage when patrol-car video and audio revealed then-officer Ian Birk had given the First Nations woodcarver about four seconds to drop a knife before opening fire.
The Police Department found the shooting unjustified under its policies, Birk resigned and the city paid Williams’ family $1.5 million. The fallout led in part to the U.S. Justice Department demand that Seattle police adopt reforms to curb excessive force.
But no criminal charges were filed, which caused community outcry. Despite believing Birk misread the situation, Satterberg decided his office wouldn’t be able to prove beyond a reasonable doubt that Birk acted with malice and bad faith and didn’t have a “subjective belief” he needed to defend himself.
In Eastern Washington, the Franklin County prosecutor came to a similar conclusion after Pasco police officers in 2015 fatally shot Antonio Zambrano-Montes, a man who had been throwing rocks. That decision also sparked protest.
More recently, the King County Prosecuting Attorney’s Office, citing the malice requirement, decided in August not to file criminal-assault charges against two Seattle police officers who were fired after they unleashed a barrage of gunshots at a fleeing car in an Eastlake neighborhood alley last year, wounding the driver and a passenger.
Initiative 940, as written, imposes a two-part test to determine if an officer acted in good faith.
One part requires proof that a reasonable officer would have used deadly force in the same circumstances. The other asks if the officer “sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.”
Critics have called the objective-subjective wording confusing.
The compromise bill simplified the standard, asking prosecutors only to examine whether a reasonable officer would have deemed deadly force necessary to prevent death or serious physical harm to police or others if placed in the same situation.
I-940’s backers have pledged to maintain their support for the new wording if the measure passes and goes back to the Legislature.
They also would support its inclusion in compromise legislation if I-940 fails.
But voters need to vote yes to make sure legislators get the message that I-940’s overall aims are important, they say.
De-Escalate Washington had raised about $3.2 million in contributions as of Friday afternoon, some of which was used to gather more than 350,000 signatures. Its biggest donors include the Puyallup Tribe of Indians, venture capitalist Nick Hanauer, George Soros’ Open Society Foundations and the ACLU of Washington, who together have pumped more than $1.9 million into the campaign.
Some of the money has been used to produce a TV commercial.
2. Vote no, either in opposition to the measure or out of the belief that the compromise bill is better.
The Washington Association of Sheriffs and Police Chiefs and the Washington State Fraternal Order of Police joined in the compromise bill and remain supportive of it. But they believe I-940 is too flawed to vote yes.
“I-940 is a complex proposal that could compromise public safety,” according to a statement from the Fraternal Order of Police, which believes I-940, as currently written, is bad policy, costly and fails to provide the funding mechanism or resources for its mandated training improvements.
Both organizations describe their stance as “respectful” opposition, saying they’re committed to the compromise bill, along with continuing the relationship and trust built with De-Escalate Washington and other community leaders.
“If I-940 is defeated Washington state would have the opportunity to take center stage on this groundbreaking law that develops trust between citizens and law enforcement,” says the Fraternal Order of Police statement.
While the Sheriffs and Police Chiefs group opposes the ballot measure, King County Sheriff Mitzi Johanknecht supports it and provided a statement for the state’s Video Voters’ Guide.
“I believe yes on 940 will increase trust and be a win-win for communities and police,” Johanknecht says in the video, asserting the initiative will help police interact with the mentally ill, de-escalate confrontations and make police work safer.
Another opposition group, the Coalition for a Safer Washington, believes I-940 is inherently flawed. It includes the Council of Metropolitan Police and Sheriffs; the Washington State Patrol Troopers Association; the Seattle Police Officers Guild; the King County Police Officers Guild; and the Puget Sound Police Managers Association.
“We’ve launched a full campaign to defeat 940 at the ballot, and we’re educating voters,” Mike Solan, a Seattle police officer who is helping to lead the campaign, said when the Supreme Court ordered that the measure be placed before voters.
The coalition had raised about $164,000 in contributions as of Friday afternoon, with $90,000 of that sum donated by the Seattle Police Officers Guild, the union representing the Seattle Police Department’s officers and sergeants.
Another group, Cops Against I-940, had raised nearly $43,000.
Solan, who is also president of the Council of Metropolitan Police and Sheriffs, said I-940 intended to lessen deadly-force standards and “make it easier to put us in jail.”
It also would “waste millions of taxpayer dollars to retrain many of the nation’s best-trained and community-sensitive public safety officers,” according to the coalition, and demands officers provide medical attention even before pursuing dangerous shooters.
And, the coalition maintains, instead of running toward danger, officers fearing prosecution will hesitate, especially since confrontations often involve rapidly evolving situations requiring split-second decisions.
“Bottom line: I-940 puts both public safety officers AND … all Washington residents at grave risk and should be defeated,” the coalition says.
Monisha Harrell, co-chair of De-Escalate Washington, said that if the initiative fails, it will leave legislators guessing on the reasons and create a “harder battle” to overcome the perception that the “public doesn’t want this.”