Politics & Government

Would proposed deadly force law have led to charges in recent police shootings? Prosecutors say no

Lisa Earl, second from left, of Tacoma is comforted by Lucia Earl-Mitchell as they stand with Puyallup Tribal Council members, from left, David Beard, Annette Bryan and Clinton McCloud. They were among 300 people who gathered for a rally to end police brutality on the Capitol steps in Olympia on Thursday. Lisa Earl is the mother of Puyallup tribal member Jackie Salyers, who was shot and killed by a Tacoma police officer Jan. 28. Salyers was pregnant at the time.
Lisa Earl, second from left, of Tacoma is comforted by Lucia Earl-Mitchell as they stand with Puyallup Tribal Council members, from left, David Beard, Annette Bryan and Clinton McCloud. They were among 300 people who gathered for a rally to end police brutality on the Capitol steps in Olympia on Thursday. Lisa Earl is the mother of Puyallup tribal member Jackie Salyers, who was shot and killed by a Tacoma police officer Jan. 28. Salyers was pregnant at the time. toverman@theolympian.com

The Legislature this year has been mulling a change to Washington’s uncommon law that shields officers who kill in the line of duty.

But county prosecutors who helped write the proposed language that has garnered some bipartisan support at the Capitol want to be clear: While their proposal lowers the bar for prosecuting police, it likely would not have resulted in criminal charges against law enforcement in some of the state’s most well-known and contentious shootings.

The prosecutors who studied some of those events — including the fatal shootings of Jacqueline Salyers in Tacoma and a rock-throwing man on a Pasco street corner — said they likely were justified and wouldn’t have been charged even when judged by the lesser standard.

“Yes it’s a change,” said Pierce County Prosecutor Mark Lindquist. “But it’s a change that affects an extremely small, narrow amount of cases.”

Where it might have made a difference: in a case where an officer did face criminal charges. The prosecutor in that case said the proposed change in the law might have have convinced a jury to convict.

But those cases are rare. The one in question, in Snohomish County, was the only time an officer was criminally charged for using deadly force in a decade, according to a Seattle Times analysis.

Some advocates from minority and civil rights groups see that as evidence the measure still offers police too much protection from criminal charges. But many police groups maintain the change could strip what they see as necessary legal defenses for officers. Prosecutors say it shows the proposed language would function properly. They said in nearly all police shootings, the evidence is overwhelmingly in support of the officer’s action.

State law requires prosecutors to prove an officer acted with “malice” and without “good faith” when using deadly force to convict them of any criminal charge.

Prosecutors say the malice standard, which is unique in the country, blocks manslaughter convictions for officers who recklessly or negligently kill people in the line of duty. That’s because malice, or evil intent, is an element of murder but not manslaughter.

So murder is, in effect, the only charging option available to prosecutors, said Jon Tunheim, the Thurston County prosecutor.

The change proposed by the Washington Association of Prosecuting Attorneys would delete the “malice” clause. It would retain “good faith,” but define it to ask if a reasonable officer would have used deadly force in the same circumstances. Prosecutors say similar good faith standards exist in other states.

Tunheim stressed the prosecutors’ proposed change does not mean “you’re just going to see a lot more officers charged.” But it would allow prosecutors to go after manslaughter charges if there’s an improper police shooting in the future, he said.

“It gives us a few more options,” he said.

Senate Bill 5073, which contains the association’s language, is backed by the state’s 39 county prosecutors, some community advocates and an influential group representing the state’s police chiefs and sheriffs, who were enticed by a promise of money for new training and less lethal weapons.

The measure — billed as a compromise by its supporters — stalled in a Senate fiscal committee last month, in part because of opposition from groups representing frontline police. But its sponsors are still working on bringing a similar one forward later in the session.

Lindquist said he’s “confident” that in the Pierce County cases he’s reviewed where police used deadly force “the officers acted in good faith.” Lindquist has been in the position since 2009.

Deciding whether the officers acted with malice in the shootings “was not an issue,” he said.

That includes the case of Salyers, who was fatally shot by police in January 2016 as she drove toward a police officer, according to Tacoma police. Officer Scott Campbell, who shot Salyers, was not charged. Lindquist said Campbell was “acting reasonably and in good faith and in self-defense to shoot.”

Members of Salyers family have said the shooting wasn’t justified.

Lindquist also reviewed the 2015 fatal shooting of Daniel Isaac Covarrubias, who was killed after he reportedly pointed a cellphone at two officers as though it were a gun. Lindquist cleared the officers in that shooting as well.

Tunheim and the county prosecutors in Snohomish and Franklin counties reported much the same.

Olympia’s recent contentious case of police deadly force — the nonfatal shooting of Bryson Chaplin and Andre Thompson in Olympia by officer Ryan Donald in 2015 — would still have resulted in no criminal charges for the officer, Tunheim said.

Police say Chaplin and Thompson, who are brothers, were suspects in a theft and an assault at an Olympia grocery store. Donald found them nearby and confronted them, and the two men allegedly tried to attack him with their skateboards. Donald then shot both men, saying he feared for his life.

Chaplin and Thompson are facing assault charges in connection to the alleged attack, and are scheduled for trial March 20.

In another high-profile case, Franklin County Prosecutor Shawn Sant said he believed the three officers who fatally shot the rock-wielding Antonio Zambrano-Montes in 2015 were acting reasonably and in good faith, and therefore would not have been charged under the language in the prosecutors’ proposal.

The Snohomish County case was one possible exception. Prosecutor Mark Roe said in an email that a new law without malice might have changed a jury’s decision in 2010 to acquit Everett police officer Troy Meade, who was charged with murder and manslaughter for fatally shooting a drunken man in a car.

“Of course I can’t be sure,” Roe wrote.

But Roe also couldn’t think of any cases where lack of malice was the sole reason he didn’t charge an officer with a crime. He said he’s reviewed more than 75 police shooting cases during 20-plus years in the prosecutor’s office.

King County Prosecutor Dan Satterberg, who declined to revisit old cases for the most part, said he was unsure whether the prosecutors’ language would have resulted in criminal charges in the highly scrutinized police killing of John T. Williams, a homeless Seattle woodcarver, in 2010.

In that case, officer Ian Birk walked up to Williams, who had a knife and some wood, and ordered him to drop the weapon several times. When Williams didn’t comply, Birk shot him to death.

It later became known Williams had used the knife for carving.

In 2011, Satterberg declined to charge Birk, telling reporters the officer had “committed serious tactical errors” in the confrontation but the shooting was a “good faith mistake, however tragic.”

Satterberg said the case is tricky when viewed with a reasonable officer standard. He wasn’t convinced “many” other officers “would have reacted the way Ian Birk did” by confronting Williams in close quarters. But once “Mr. Williams turned around and had a knife, the officer relied on his training.”

Relatives of Williams had asked for manslaughter charges.

Karen Johnson, chairwoman of the Black Alliance of Thurston County, said she too believes Birk should have faced criminal charges for using deadly force. She also thinks the Olympia officer should have faced an assault charge for shooting Thompson and Chaplin. The alliance was formed in response to that shooting.

Johnson served on a state task force last summer that narrowly recommended both malice and good faith be removed from the statute and replaced with a reasonable officer standard that doesn’t include a subjective judgment about “good faith.”

Good faith takes into account an officer’s intent in a deadly interaction, which prosecutors say is necessary to prevent criminal charges when officers make honest mistakes. Johnson says good faith relies too much on what an officer intended to do, rather than comparing what they did to professional standards.

“Good faith, as WAPA wrote it, maintains de facto immunity for police officers for unjustifiably killing people,” Johnson said.

Some police groups still oppose removing malice from the deadly force statute. Travis Adams, a spokesman for the state’s Fraternal Order of Police, said he’s concerned courts would interpret the change in a way that doesn’t provide enough protection for mistakes by law enforcement.

Removing good faith from the statute is a nonstarter for their group, but he said they’re studying how they could potentially remove malice in a way they feel gives officers enough legal cover.

State Rep. Morgan Irwin, a Republican from Enumclaw who is a Seattle police officer, said he is opposed to the WAPA language, too.

But he said the threat of an initiative on the topic from people who might want to overhaul the statute entirely is one reason he’s still working to find a compromise as the session continues.

“I think that it’s impossible to ignore the initiative process in Washington state,” he said.

Information from the Associated Press is included in this report.

Walker Orenstein: 360-786-1826, @walkerorenstein

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