For months, a state task force has been scrutinizing Washington’s law that determines when police can be criminally charged for improperly using deadly force.
As the temporary committee nears its Monday conclusion, most task force members agree the Legislature should lower the bar. Deciding exactly how far to lower it has presented a tougher challenge.
Washington’s law, passed in 1986, says police officers who use deadly force can’t be convicted of criminal charges unless prosecutors can prove the officers acted with “malice” and without “good faith.”
That “malice” requirement is considered unusually protective of police and is the only one of its kind in the country.
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The standard shields officers who recklessly, negligently or unnecessarily shoot people, according to many in the legal community. It also has attracted fierce criticism from minority communities in the wake of high-profile killings of black men across the country.
Showing an officer acted with malice, or “evil intent,” is difficult because it’s subjective, said Tom McBride, the executive secretary for the Washington Association of Prosecuting Attorneys.
“That’s something where you have to get inside somebody’s head,” McBride said. “What’s their intent?”
Dropping the malice requirement would bring state law more into line with other states, said Jeff Robinson, director of the Center for Justice at the American Civil Liberties Union. While neither Robinson nor McBride is on the task force, both have studied use of force laws and presented to the committee.
At least 16 of the 26 members of the task force have proposed or signed on to proposals that drop malice from the law. But there is no similar consensus on what to do with the “good faith” portion.
Some say keep it but define “good faith” to make sure it is applied as an objective standard. An objective standard allows a jury to “second-guess the decision made at the time,” McBride said, letting jurors decide: “Would a reasonable officer in the same circumstance take those actions?”
McBride said eliminating malice while keeping good faith would strike a middle ground between status quo law enforcement groups and reform advocates on the task force.
“We kind of think good faith is fair,” he said.
But others say overhauling the statute entirely to remove good faith and malice is the only way Washington can hold police accountable for unjustified shootings.
If good faith remains, Robinson said, police opinion would be the deciding factor in any case weighing whether the use of deadly force was justified. In a case against an officer, “the jury will be instructed, ‘you’ve got to base your decision not on what you believe but on what police officers would believe,’ ” he said.
“I am not aware of any other state that has that,” Robinson added.
Removing “good faith” would make police opinion “a relevant and important” part of deciding whether a shooting is justified, but not the only opinion, he said.
Thirteen task force members proposed eliminating both “good faith” and “malice.” They wrote a recommendation inspired by a federal task force’s 2015 report on best practices in law enforcement.
Their group would delete “malice” and “good faith” and re-write the law to, in part, say officers can use deadly force in situations in which they have a reasonable belief there’s an “imminent threat of death or serious physical harm to the officer or a third party.”
Karen Johnson, director of the Black Alliance of Thurston County, said getting rid of the malice and good faith standards would produce more of a cultural shift in police accountability. Her proposal also adds language emphasizing de-escalation tactics, among other deeper changes to the law.
Both Johnson and McBride contend their approach to the law would still protect officers who make honest mistakes.
Some on the state committee don’t agree. State Rep. Dave Hayes, R-Camano Island, objects to even removing the malice standard, arguing that police officers could be subject to prosecution for making honest mistakes.
“We simply cannot remove all protections for the law enforcement officers we expect to run to the fight and make snap decisions in an instant, and not give them some sort of protections above what a normal person would be expected” to have, he said. Hayes is a sergeant with the Snohomish County Sheriff’s Department.
Rich Phillips, a task force member representing the Washington Council of Police and Sheriffs, said the existing law allows for “bad police officers” to be prosecuted when necessary. Amending the statute won’t reduce violent interactions between law enforcement and the community, he said.
The task force can issue majority and minority reports. But some members worry that without presenting a unified recommendation to the Legislature, lawmakers will simply ignore the task force’s conclusions.
“I’m curious whether there’s still a chance to bring a sizable majority together,” McBride said. “I’d love for that to be possible.”