What new WA police accountability laws do and don’t do

Plus, a closer look at some of the concerned statements made by police chiefs and sheriffs

||| FROM CROSSCUT |||

Several new police accountability bills went into effect in Washington state this week, changing some of the ways police officers can interact with the public. 

In anticipation of the new laws taking hold, many police chiefs and sheriffs have publicly voiced concerns that their officers will no longer be able to perform certain duties, such as responding to mental health calls or chasing fleeing suspects. 

While some of these statements contain elements of truth, others are misleading or leave out important context.

The main laws at issue are House Bill 1310, which establishes new use-of-force standards for police, and House Bill 1054, which limits the use of certain police tactics, such as vehicle pursuits and neck restraints. 

Here’s more information about what Washington’s new police accountability laws do and don’t do.

Officers can still …

Respond to mental health calls

HB 1310 limits the situations in which officers can use physical force. According to the new law, police are allowed to use physical force when there is probable cause to make an arrest for a crime, as well as to prevent someone from escaping after they’ve been arrested or jailed. Officers also can use physical force to protect against “an imminent threat of bodily injury,” either to the officer, the person the officer is responding to, or someone else. Some police chiefs and sheriffs have interpreted the law to say that they can’t physically restrain someone who is experiencing a mental health crisis. Others have said the new limits make it so there’s little point in officers responding to mental health calls at all.

The lawmakers behind the new legislation say that’s bunk.

“Nothing we enacted this year prevents them from responding to calls or showing up at the scene,” said state Rep. Roger Goodman, D-Kirkland, who chairs the House Public Safety Committee. He said that under the state’s Involuntary Treatment Act, officers can still assist in transporting someone to get treatment, either because the person poses a danger to someone or has committed a crime, or because a designated crisis responder evaluated that person as being at risk of harming themselves.

Other law enforcement officials agree that there’s nothing stopping police from responding to mental health calls, although the new law does require officers to slow down and try to de-escalate before using physical force.

“None of these laws in any way prohibit agencies from responding to calls for service,” interim Seattle Police Chief Adrian Diaz wrote in a statement last week. “The idea that the ability to use force is a prerequisite to engaging in investigative stops or responding to individuals in crisis is absurd.” 

At the same time, whether or not police respond to welfare calls has always been up to individual departments, so it’s possible that some agencies may pull back or reduce how often they respond to those types of calls.

Defend themselves

If someone pulls a knife, gun, or other weapon on an officer, the officer is still allowed to use physical — or even deadly — force against that person. Such a circumstance would count as an “imminent threat” to the officer’s safety, even under the new use-of-force law.

However, when possible, any such use of force is supposed to be done as a last resort, after other attempts to avoid using deadly force have been exhausted.

In cases where no crime has been committed or about to be committed, or there isn’t an imminent threat of harm to someone, officers are advised to consider leaving the scene as one type of possible de-escalation tactic. They also are advised to use less-than-lethal options when possible.

Pursue fleeing suspects

Several social media posts from chiefs and sheriffs suggest that they cannot pursue suspects who are fleeing the scene of a crime. This is because the new law establishes probable cause as the new standard for using physical force against someone, as may be necessary to stop someone who decides to run away. 

Previously, officers could forcibly detain people based on reasonable suspicion, a lower evidentiary standard.

But the new law doesn’t mean that officers are required to just let suspects wander off. 

Monica Alexander, executive director of the state’s Criminal Justice Training Commission, said if officers see someone who matches a suspect’s description leaving the scene of a reported crime, they can still chase that person and stop and detain the person under the new law.

In those situations, officers don’t have to go through a lengthy investigation to determine probable cause, because they saw the person actually leaving the crime scene, she said. 

“It doesn’t require them to say, ‘Well, you know, that person looked like the person, but I’ve gotta go talk to this witness over here before I can detain that person that I saw leaving the scene,’ ” said Alexander, a former captain with the Washington State Patrol. “That’s not even logical, right?”

Things are less cut and dried when it comes to suspects who flee by car, but whom officers didn’t actually see leaving the crime scene. More on that later.

Approach and question people

In certain cases, police can still detain people as they conduct an investigation to gather the information needed to make an arrest, said James Schrimpsher, a vice president of the Washington Fraternal Order of Police, who is also the police chief in the south King County town of Algona.

For instance, Schrimpsher 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, he said.

Some police chiefs are worried that overusing the crime of obstruction to detain people could be seen as trying to circumvent the new law. That, in turn, could lead to increased liability and risk for agencies, wrote Pacific Police Chief Craig Schwartz, one of the local police officials who has expressed concerns about the new laws.

The lead drafters of the new use-of-force law said that using this method to detain people who flee would be acceptable under their view. But some agencies, including the King County Sheriff’s Office, say they won’t use the charge of obstruction in this way.

Where things get ambiguous is when a crime hasn’t actually been reported or witnessed, but officers see someone who they want to question for one reason or another. This could be the case if an officer is patrolling an area where a recent string of burglaries has occurred, and sees someone leaving a random building, but no specific crime has actually been reported there at that time, Schrimpsher said.

Officers can still approach the person and talk to them, said Alexander, the head of the state training commission. Often, officers can gather quite a bit of information from those types of voluntary encounters, she said.

If the person runs in these situations, officers can even follow them on foot to try to get the person to stop, without resorting to force.

If officers do use force in situations where it’s not allowed, they can get into trouble under another of the state’s new laws, Senate Bill 5051. That bill makes it easier to revoke an officer’s certification — a license to work as a police officer — over excessive use of force.

READ FULL ARTICLE: crosscut.com/politics/2021/07/what-new-wa-police-accountability-laws-do-and-dont-do