In order to convict a law enforcement officer of wrongful death in Washington, a prosecutor must prove malice was involved.
Imagine if this high standard applied to other professions: A doctor amputates the wrong limb, a nurse gives too much or too little medication, a pilot misses the runway — but in order for a survivor or family member to get justice, evil intent must be proven as the motivator.
Initiative 940 is the latest in a line of recent attempts to change our state’s prohibitively high standard for holding law enforcement accountable for the improper use of deadly force. But unlike those legislative efforts, this display of people power may finally prod state lawmakers to drop the “malice” threshold.
If the proposal gains enough signatures — supporters last week said they have half of the 340,000 needed by Dec. 29 — the Legislature will be left with three choices: Pass the measure into law as is, let it go to the ballot in 2018, or give voters a competing version that tries a more moderate approach to change the 30-year-old state law.
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We’re hoping for door number three.
The initiative is sponsored by De-Escalate Washington, a group spawned by the deaths of Charleena Lyles, Che Taylor, Jacqueline Salyers and Leonard Thomas, all who were shot by police.
The coalition also includes immigrant advocates and tribal representatives, who stepped up their involvement in police reform when Salyers was killed by Tacoma police in 2016.
Pierce County Prosecutor Mark Lindquist said the Salyers shooting was justified under the law; he came to the same conclusion when Leonard Thomas, an unarmed African American man, was killed by Pierce County Metro SWAT in Fife in 2013. (A jury in federal court recently awarded Thomas’ son and parents $15 million for his wrongful death.)
To have their voices heard, loved ones of people fatally killed by police often resort to protests and lawsuits. I-940 provides another outlet, one with potential for statewide criminal justice reform. Good for them for taking advantage of it. Win or lose, the initiative system is meant for grassroots efforts like theirs.
Washington is the only state with a malice clause, and it leaves prosecutors with only one recourse: a murder charge. Striking the word malice would allow for charging officers with lesser crimes, mainly manslaughter.
The Fraternal Order of Police fears the change could lead to an increase in prosecutions tainted by politics.
That’s why it’s so vital for the “good faith” standard to be fully preserved. Good faith is a sensible safeguard that protects cops in most states including ours; it considers the circumstances known at the time of a deadly confrontation and asks whether an officer’s actions would have been shared by any “reasonable officer” in a similar situation.
I-940 would retain “good faith” language but unnecessarily weaken its protections; an officer could be convicted if proven to have acted outside the bounds of training or used deadly force without good faith.
We hope the Legislature steps in to strike a better balance between victims’ rights and a healthy police work environment. Eliminating the malice clause should be the focus, not messing with the “good faith” provision.
In 2017, 29 people were fatally shot by police in Washington, a per-capita number higher than nearby Oregon, California and Idaho. Evidence supports deadly force in most cases when it’s used, but not all.
There is such a thing as professional negligence, even in law enforcement. What De-Escalate Washington proposes isn’t perfect, but if enough voters sign I-940, it will send a clear message to police representatives to give up ground and meet in the middle. And that would be a good place for both sides to end up.