Last week, a Washington’s task force voted 19-14 to remove the words “malice” and “good faith” from a 1986 statute that determines when use of force by a law enforcement officer is justified.
The issue now goes to the governor and Legislature for the final say. When lawmakers convene in January, they should affirm the task force’s decision and change the 1986 law.
Washington is the only state whose law makes it nearly impossible to criminally charge a police officer who engaged in excessive force.
The 1986 law came on the heels of a 1985 U.S. Supreme Court decision that said police can shoot fleeing suspects only if they pose a clear threat. Washington’s law told officers they could discharge their weapons as long as they did it in good faith and without malice.
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But how do you “prove” good faith? How do you “prove” malice? How many prosecutors are willing to level a charge in which they must provide tangible evidence of an officer’s state of mind when he or she decided to shoot? No forensic team is that good.
As Tom McBride, the executive secretary for the Washington Association of Prosecuting Attorneys said, proving the intention of any officer is subjective. How do you get a jury to believe without a reasonable doubt that an officer involved in a shooting acted with the intention of malice? The answer is, you don’t.
King County Prosecutor Dan Satterberg called it “the perfect defense.” Amnesty International called it the most restrictive in the country.
According to a 2015 Seattle Times analysis, police in the state shot 213 people between 2004 and 2014, and in only one shooting was an officer charged with a crime.
In that 2009 shooting, an Everett police officer was charged with second-degree murder and manslaughter when he fatally shot a drunken man through the rear window of his car. The trial ended in an acquittal.
Travis Adams, who belongs to the Washington State Fraternal Order of Police, believes removing the word “malice” might cause police officers to think twice in dangerous situations before shooting. But an officer is still allowed to shoot “if there’s imminent threat of death or serious physical harm to the officer or a third party.”
This amendment would make it easier to criminally charge officers suspected of reckless or negligent use of a weapon. Even with such a standard, prosecutions are rare. According to The Wall Street Journal, nationwide in 2015 about 1200 people were killed by police, 12 were charged with a crime and none was convicted of manslaughter or murder.
Still officers have a difficult job, arguably the most difficult job. Each shift brings significant risks, and officers, too, need protection.
However, any effort toward de-escalation tactics and crisis management can mend the growing distrust of law enforcement and so can removing this 30-year-old law. In a system that for so many feels broken, a 2017 amendment would be a step toward more accountability, which might help in restoring that trust.