Politics & Government

People who want to make it easier to prosecute cops who kill might get their way soon

From left: Annalesa Thomas, Fredrick Thomas, Elijah Thomas, Athena Taylor, Andre Taylor, Nina Martinez, and Leslie Cushman are all involved with De-Escalate Washington, the campaign running the I-940 initiative. Photographed in Fife, Wash., on Saturday, Oct. 14, 2017.
From left: Annalesa Thomas, Fredrick Thomas, Elijah Thomas, Athena Taylor, Andre Taylor, Nina Martinez, and Leslie Cushman are all involved with De-Escalate Washington, the campaign running the I-940 initiative. Photographed in Fife, Wash., on Saturday, Oct. 14, 2017. joshua.bessex@gateline.com

For two years, police-reform groups have unsuccessfully tried to convince state lawmakers to make it easier to prosecute law enforcement officers who kill in the line of duty.

Those reformers now might have something on their side to put their efforts over the top: Political leverage.

A group called De-Escalate Washington has decided to push its proposed changes as an initiative to the Legislature in 2018.

If the campaign hits its 260,000-signature target by the end of the year, it will bring a bill to the Capitol that would lower the state’s uniquely high bar for prosecuting officers who improperly use deadly force. Group leaders say the measure would increase police accountability.

Key lawmakers say the threat of the initiative going to the ballot gives De-Escalate Washington the upper hand should it choose to negotiate a legislative alternative with police groups that have stuffed more modest change in the Legislature.

Those against revamping the law, namely the Fraternal Order of Police, say Initiative 940 could lead to witch hunts against police who make honest mistakes in stressful situations. But lawmakers who have been deeply involved in the debate say the Fraternal Order might be more willing to strike a deal on an compromise to avoid a vote of the people on I-940.

De-Escalate Washington, which launched in July, said in a news release Thursday it had about 160,000 signatures so far.

“Bottom line is, I think the opponents might realize that a legislative solution is better for them than the initiative,” said Sen. Mike Padden, a Republican from Spokane Valley who chairs the Senate’s Law and Justice Committee.

There are three outcomes possible with an initiative to the Legislature. Lawmakers can pass it. They can approve an alternative to compete with I-940 on the fall 2018 ballot — possibly one that unites police and community advocates as a compromise. Or they can do nothing, sending Initiative 940 to the ballot by itself.

Trevor Severance, a spokesman for the Fraternal Order of Police, said the organization is concerned about I-940 becoming a ballot measure. But he said it was too early to say if his organization would change its stance to strike a compromise.

“I’m not in a position to speak on that yet,” he said. “We’re always open to finding a solution that works (for reformers and police). So far the solutions that we’ve seen don’t work for us.”

Washington’s law requires proof an officer acted with “malice” and without “good faith” before they can be convicted of criminal charges for using deadly force.

The “malice” standard is unique in the country. County prosecutors say it effectively blocks them from charging officers with anything less than murder for improperly using deadly force.

All of the state’s county prosecutors say they want an option to charge officers with lesser crimes, mainly manslaughter, in cases where an officer kills someone in a reckless or negligent manner.

A person is guilty of murder and not manslaughter if they were acting with malice, or evil intent, when they kill someone, legal experts say.

The Washington Post reports 29 people have been fatally shot by police in Washington so far in 2017, a per-capita number higher than nearby Oregon, California and Idaho.

Chances in the Legislature

Andre’ Taylor, the chairman of De-Escalate Washington, did not offer an olive branch to police groups in a recent interview. Taylor is the brother of Che Taylor, who was fatally shot by Seattle police last year.

He was joined by family members of Charleena Lyles and Leonard Thomas, who were both fatally shot by police in Seattle and Fife in recent years. No charges have been brought against any officer in those cases, although the Lyles case is still under investigation.

Taylor said he’s “hopeful” lawmakers will approve I-940 but said “we’re preparing for the ballot.”

The same was true for campaign vice-chair Timothy Reynon, a council member of the Puyallup Tribe of Indians who participated in a state task force last year that recommended the deadly force law be changed. The Puyallup tribe has given $125,000 to the campaign, which leaders say has raised more than $470,000.

The tribe became involved in large part because of the fatal shooting of Jacqueline Salyers by Tacoma police in 2016. Pierce County Prosecutor Mark Lindquist ruled the shooting was justified under current law, although Salyers’ family says the use of force was unnecessary and excessive.

“The initiative process tells the Legislature what the people want,” Reynon said. “And if the Legislature doesn’t listen, the people can decide for themselves.”

There is some incentive for De-Escalate Washington to negotiate a compromise.

Padden and Roger Goodman, a Democrat from Kirkland who chairs the House Public Safety Committee, both have critiques of the initiative. A bill on police deadly force typically must be approved by their committees before it passes.

Padden and Goodman said they preferred a bill last year, deemed a middle ground by its supporters, that was written by the organization representing the state’s county attorneys.

The change proposed by the Washington Association of Prosecuting Attorneys would have deleted the “malice” clause. It would have retained the “good faith” portion, but defined 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.

That proposal likely would not have resulted in criminal charges for police officers in some of the most controversial police shootings in recent years. Goodman said that bill kept more protections for law enforcement than I-940, which he said is necessary to protect first responders who are rushing toward dangerous situations.

The bill was “tubed,” Padden said, by strong opposition from the Fraternal Order.

De-Escalate Washington’s proposed initiative goes beyond the prosecutor’s language. It deletes malice and creates a two-part test to determine if the use of deadly force was justified.

In the county attorneys’ proposal, an officer could only be convicted if there is proof he or she acted outside the bounds of training and used deadly force without good faith. In I-940, if an officer fails either of those categories, they would be guilty of an unjustifiable killing.

The initiative appears equally unlikely to pass the Legislature as is, especially without police support. Goodman said the ballot also is “another risk.” People could vote it down.

Still, Goodman emphasized that De-Escalate Washington would have the last word on any changes the Legislature proposes if I-940 qualifies.

That’s in part because the group has backing from many Democrats. Democrats have a small majority in the state House and may control the Senate by a one-vote margin next year. Goodman said it would be “quite divisive” if he tried to “force” his agenda on either I-940 supporters or police groups.

Goodman said if De-Escalate Washington finds itself in a “negotiating mood,” then “any changes to the language would be consistent with what the proponents” would want.

“Police groups do not have any bargaining leverage once it gets to the Legislature because then the proponents of the initiative have shown they have enough public support to see the language all the way through the process and not alter that language,” Goodman said.

Extra measures

Beyond the deadly force statute, I-940 would set new requirements for officers to provide first-aid and receive de-escalation and mental health-related training.

It also would require an agency other than the officer’s department to conduct investigations into cases of police use of deadly force.

The topics were discussed in last year’s task force but were not in the bill supported by Goodman. Law-enforcement groups have objected to at least some of those measures as unnecessary or intrusive based on existing practices.

The initiative also lacks data-collection requirements police groups said are important to determine more accurately how deadly forced is being used in the state.

But more than anything, Severance said the Fraternal Order of Police is motivated to stop any measure that deletes the malice protection from state law. Severance, a patrol sergeant with the Mason County Sheriff’s Office, said he’s used deadly force as an officer.

Deleting malice could allow elected officials to charge police for political gain, rather than based on facts, he said. I-940 could result in criminal charges against officers with good intentions who made honest mistakes in the line of duty, he added.

“We all make honest mistakes in what we do,” Severance said. “Ours happen to be on a little bit larger scale than most people.”

Katrina Johnson, cousin of Charleena Lyles, said the law needs to be changed.

“There won’t be any accountability unless we change the law,” Johnson said. “For our family, we have to change the law because we can’t bring Charleena back, but it could save the life of someone else.”

Walker Orenstein: 360-786-1826, @walkerorenstein