Policing reform lacks clarification from State

DAYTON—Washington state’s legislation on police reform went into effect on Sunday, July 25, and has left many police officials across the state without needed clarification. Concerns over changes to police response based on House Bill 1054 and House Bill 1310, sponsored by State Representative Jesse Johnson, were discussed at an August 2 Columbia County Commissioners meeting.

The State Legislature passed the police accountability measures in response to national, state, and local calls to reform policing after the deaths of unarmed Black Americans, including George Floyd, Breonna Taylor, and, more locally, Manuel Ellis killed in Tacoma in March 2020. According to an article by NPR, lawmakers worked closely with advocates and families who have lost loved ones to police violence.

The new legislation addresses many aspects of policing, including banning the use of chokeholds and neck restraints by officers, limiting the use of physical force, changes in training and background checks for new officers, governance around peace officers, and requiring officers to intervene if a fellow officer uses excessive force and requiring officers to report misconduct.

At the Columbia County Commissioners meeting, Emergency Management Director Ashley Strickland asked for clarification for dispatch, stating he was worried that a misunderstanding of the new laws could potentially place the Columbia County Sheriff’s Office in a bind. He asked how operators are to respond to calls if Columbia County deputies cannot respond due to a lack of appropriate resources, based on the new legislation.

The County Prosecutor Dale Slack said it should be handled on a call-by-call basis.

“There was a meeting this last Thursday morning of all 37 elected prosecutors in the state, and no two of us can agree on what the laws say,” Slack said. “At this point, we are not even 100% sure that the Terry stop, which is kind of the cornerstone of law enforcement, exists anymore because you can’t use force or restrain somebody. If you stop someone or pull them over, and they say, ‘I don’t want to talk to you,’ you can’t stop them without probable cause.”

A Terry stop allows officers to detain a person briefly, based on reasonable suspicion of their involvement in criminal activity.

Slack went on to say that reasonable suspicion used to be reason enough for police to keep someone stopped long enough for questioning. He said now police could not stop someone from leaving the scene unless they have probable cause. Using a domestic violence scenario as an example, Slack said that probable cause is not determined until the victim tells police that a specific person harmed them.

“We have risen to the level where we cannot make someone talk, at least until we have probable cause,” said Slack.

Slack also said there are changes to how police handle mental health crises. Departments are waiting for clarification from the Attorney General on how to proceed with these situations legally.

“Law enforcement is really going to change, unfortunately,” said Slack. “The public needs to know about it and be ready to be told, “I’m sorry, we cannot enforce the laws the way we used to because of the new legislature.”

An example of how different jurisdictions are interpreting the new laws comes from James Schrimpsher, a vice president of the Washington Fraternal Order of Police. He is also the police chief in the south King County town of Algona. He has directed Algona officers responding to domestic violence calls to tell everyone on the scene to stay put because police are investigating a crime. If a suspect then flees, the officers could arrest that person for obstruction, which would be a crime in progress that allows the use of physical force under the new law, said Schrimpsher.

Other law enforcement departments have issued statements that they will not be responding to a variety of calls based on their reading of the new laws. This includes the Walla Walla Sheriff’s Office (WWSO), which listed the following changes in response to the new legislation in a letter to The Times, published in the July 29, 2021, edition:

“Welfare checks - generally, local law enforcement will not respond; however, a supervisor may give approval if it is determined there is no other alternative, e.g., A person lives in Kansas and hasn’t heard from a relative in over a week and there is no one else local who can check.

Involuntary Treatment Act - A DCR must have completed an evaluation and signed the DMHP form prior to law enforcement response. Officers will still verify the ITA requirements (a danger to themselves, a danger to others, gravely disabled) prior to taking action.

Mental health calls - Generally law enforcement will not respond. Community members should call Comprehensive Mental Health’s Crisis Response Team (CRT) at 509-524-2999 for assistance with a mental health issue. If a supervisor determines a crime has occurred an officer will respond.

Civil calls - Generally law enforcement will no longer respond. If an actual crime has occurred, a supervisor will determine if law enforcement response is required. Law enforcement will continue to serve no contact orders, orders for protection, etc.

Suspicious person calls: Dispatch will broadcast for information. Law enforcement will drive by if available to be a visible deterrence but will not make contact unless a crime is observed.”

On August 2, the Attorney General of Washington office sent a memorandum to members of the state legislature addressing many of law enforcement’s concerns about Bill 1310, including those listed in the WWSO letter.

The memo states that the Washington courts and law recognize something called the “community caretaking doctrine” and cited a 2019 Washington Supreme Court opinion from State of Washington vs Michael Clifford Boisselle, that called police officers “jacks of all trades” who “frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime.”

“Bill 1310 does not prohibit peace officers from responding to community caretaking calls, including mental health calls,” the memo concluded.

The memo also says that, except for certain provisions, a peace officer may use physical force against a person when necessary to protect against criminal conduct, to effect an arrest, prevent escape or protect against imminent threat of bodily injury to the officer, another person, or the person who the force is being used.

A disclaimer noted that it did not constitute a formal legal opinion from the AGO, but instead represents the authors’ carefully considered legal opinion.

The entire memo can be read at https://housedemocrats.wa.gov/tmp/2021/08/Attorney-Client-Privilege-Bill-1310-002.pdf

Some law enforcement officials have embraced some of the changes and said they share the lawmakers’ goals. But uncertainty about how to comply, combined with a greater possibility of being decertified or held personally liable in court, puts officers in a tough position, they say.

“The policing reforms may have the positive impact of reducing the number of violent interactions between law enforcement and the public,” Steve Strachan, executive director of the Washington Association of Sheriffs and Police Chiefs, said in a statement. “However, we owe it to the public we serve to be candid and share that we are deeply concerned that some policing reforms may have unintended outcomes that result in increased levels of confusion, frustration, victimization, and increased crime within our communities.”

For example, the restriction on military-grade weaponry inadvertently bans some less-lethal impact weapons, including the shotguns police use to fire beanbag rounds. Washington State Representative Jesse Johnson said the context makes clear the intent was to embrace, not ban, less-lethal weapons. He expected the state attorney general to clarify that until the Legislature can fix the wording next year.

While the intent of the legislation is to address excessive force and add more accountability, it has been criticized for being poorly written leaving frustration and confusion for police and prosecutors as they wait for formal legal opinions and guidance from the state. This will take time and coordination between local governments and the state to resolve inconsistencies and unintended consequences from the legislation.