Find middle ground on police use of deadly force

A bill to hold police officers accountable when their use of deadly force is reckless and wrong has struck a wall in the Washington Legislature. Lawmakers need to keep working to find middle ground and protect officers, public safety and also help police agencies gain public trust.

In many instances an officer’s use of deadly force is the best or only option. To stay alive, officers must be able to rely on their split-second judgments in situations that are life and death. At the same time, communities must feel secure in knowing that officers who use force recklessly or negligently can be held accountable for needless shooting deaths.

The law in Washington is simply too one-sided in favor of police. Alone in the nation, our state requires a finding of “malice” or “evil intent” in an officer’s mind before a crime is proved to occur.

A more appropriate defense standard is an officer’s good-faith action — but only if it is also defined as what a reasonable officer would do in a similar situation. Such a new standard is embedded in an amended version of Substitute Senate Bill 5073, which is sponsored by state Sen. David Frockt, D-Seattle.

SSB 5073 includes money for local police agencies for officer training in de-escalation techniques and understanding hidden biases — the kind of thing that Olympia’s forward-thinking police chief, Ronnie Roberts, has championed. The bill would use grants to also equip police agencies with less lethal weapons.

The Washington Association of Prosecuting Attorneys agrees the malice standard is too broad. Jon Tunheim, the Thurston County prosecuting attorney, has represented WAPA in negotiations on the bill and supports Frockt’s bill, as does Chief Roberts, who says his agency is committed to using deadly force as a last resort.

The compromise “strikes malice, keeps good faith but defines good faith to a reasonable standard,” Tunheim said. “What it does is make the standard more objective. Instead of looking into the minds of (officers) as we would do with malice. … We look at the overall reasonableness of the conduct.”

A 2015 report by The Seattle Times found 213 cases in which police in our state used deadly force that resulted in a fatality during 2005-14. In roughly five out of six cases the subject was armed, usually with a firearm. But in all cases, Washington law all but made officers virtually immune to criminal charges even when the killing led to officer firings and large damage payouts to victims’ families.

Critics of the malice standard cite a 2009 case in Snohomish County in which an officer — later terminated from his job for failing to follow procedures — shot through the rear window of a drunken driver’s car, hitting the motorist in the back and killing him. The officer feared the suspect would back his car into him. A jury found the officer not guilty in the killing because the Snohomish County prosecutors could not prove “evil intent.”

The compromise backed by prosecutors was approved on a bipartisan vote in the Senate Judiciary Committee. Two conservative Republican senators, Mike Padden of Spokane Valley and Steve O’Ban of Lakewood, voted for it along with Frockt. Frockt said the bill’s biennial cost is about $3 million.

Unfortunately the bill stalled in the Senate Ways and Means Committee a week ago.

The Washington Association of Sheriffs and Police Chiefs recently came on board in support of the measure, but other police groups have not. According to Mitch Barker, WASPC executive director, the association’s support will fall away without funds for training.

On the other side of the issue are community advocates including the Black Alliance of Thurston County that helped pass a 2016 bill that set up a task force to study the use of deadly force in Washington. The task force narrowly recommended removal of both “malice” and “good faith” from the law. Alliance co-chair Karen Johnson says the law needs two separate tests for an officer’s action — good faith and what a reasonable officer would do in the same situation.

We struggle to understand why the parties can’t all come together on language that accomplishes that goal.

Washington’s 31-year-old law requiring evidence of malice tips the scales of justice — like a teeter totter — too far one way in use of force cases.

The best remedy is to tip it back to the middle. We must protect officers from honest errors but ensure that justice is possible in cases where it cries out to be heard.

This story was originally published March 5, 2017 at 1:54 PM with the headline "Find middle ground on police use of deadly force."