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.
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.
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.
Officers cannot …
- Forcefully detain people based on vague suspicions
What officers can’t do is apprehend somebody they see a few blocks away from a crime scene and slam them against a wall, just because the person matches a description that came through over the radio, Alexander said.
Those are the kind of situations that have often led to people of color being unfairly stopped and detained by police, said state Rep. Jesse Johnson, a Federal Way Democrat who sponsored both HB 1310 and HB 1054. And that is one of the reasons the bills were proposed and passed by the Legislature earlier this year.
“Too many times it involves someone who has not committed a crime being harmed, or somebody literally being in the wrong place at the wrong time,” Johnson said.
Alexander gave a hypothetical example of what would not be OK, using a description of herself as an example.
“What if the description came over the radio, African American female, medium height, medium build with kind of big hair?” she asked, providing a rough description of herself. “That’s me. But what if I’m just coming from Nordstrom? They don’t have probable cause to throw me to the ground.” But they could approach her for a conversation.
- Start car chases over low-level crimes
One of the biggest changes in the new police tactics law, HB 1054, concerns when police can chase suspects who flee in vehicles.
Officers can still engage in vehicle pursuits of people who are suspected of driving under the influence. No change was made there.
But, under the new law, officers are not to pursue fleeing vehicles when the driver is suspected of other lower-level crimes that don’t involve drunken driven, such as theft or property damage.
Instead, a car chase is only warranted in most cases if there is probable cause to believe a person in the vehicle has committed or is committing a violent offense, such as a kidnapping or sex offense.
That “probable cause” standard is a higher one than existed before for initiating a car chase. The new law most likely will result in fewer vehicle pursuits, which legislators wanted to rein in partly because of the danger those kinds of high-speed chases can pose to the public.
That said, if police witness a violent crime and then the suspect flees in a vehicle, the officers can still pursue that person, if the person is deemed dangerous enough.
Some agencies, like Schrimpsher’s, already have policies in place that are similar to the new requirements.
“I don’t want one of my officers to have to be responsible for chasing a car that blew through an intersection and hit and killed a family over a shoplift,” the Algona police chief said. “You have to look at the totality of the circumstances.”
HB 1054 sets strict limits on the use of military equipment by police agencies. That means certain gear that departments receive through the Department of Defense’s military surplus program — equipment like tanks, sound cannons and certain high-caliber firearms — must no longer be used and departments can’t acquire more.
This part of the law has created some ambiguity around equipment that some agencies use to deploy less-than-lethal force options, such as bean bag rounds. Some of those launchers and other devices may qualify as military equipment under the law, agencies say.
Alexander of the state Criminal Justice Training Commission wrote in an email that her agency, which certifies officers, right now doesn’t consider the use of less lethal weapons by itself to be a violation of the new laws. That means that in the coming months, officers won’t be at risk of losing their license to work as police officers solely because they use a high-caliber firearm or military weapon to deploy bean bags or other less lethal options.
Still, exactly how the ban on military equipment applies to less lethal police equipment is something legislators, including Johnson, say they plan to make clear by passing additional legislation next year.
The state attorney general is also adopting model policies to guide police agencies about how to interpret the new laws, but those guidelines won’t be completed until mid-2022.
- Use chokeholds or neck restraints
The new legislation sets clear bans on the use of certain police tactics, such as the use of neck restraints and chokeholds. This prohibition responds not only to the murder of George Floyd in Minneapolis, but also the death of Tacoma’s Manuel Ellis, who, like Floyd, died while telling officers, “I can’t breathe.”
Additionally, under HB 1054, tear gas can be used only in certain circumstances, such as in a hostage situation or to quell a violent riot. The use of tear gas on a crowd requires advance authorization from a jurisdiction’s top-ranking elected official, such as the mayor.
Officers must also announce they are using tear gas in advance and give people time to disperse. These requirements don’t apply to police use of pepper spray, a different type of irritant.
- Skip de-escalation efforts
Officers are obligated to try to de-escalate situations before using physical force.
That’s something the state training commission has been teaching new recruits for some time, Alexander said. But the new use-of-force bill, HB 1310, sets firmer statewide standards and includes specific examples of de-escalation behavior that police should engage in.
For instance, the bill directs officers to designate one officer to issue commands when apprehending someone to avoid confusing the person. It also says officers should call for backup, take as much time as needed and, in some cases, retreat when there’s no crime or imminent danger.
Some believe that these new bills will make officers and the public less safe. State Rep. Brad Klippert, R-Kennewick, is among them.
“It hampers our ability to protect the public against criminal conduct,” said Klippert, who also works as a Benton County Sheriff’s deputy. “I think except for a very few exceptions, we’ve been doing a very good job of that in Washington state.”
Chris Loftis, a spokesperson for the Washington State Patrol, wrote in an email that some of the frustration results from the sheer number of changes lawmakers made to law enforcement policies at one time.
But he said law enforcement agencies, including his own, will learn and adapt.
“Like anything else new … confusion will turn to understanding with debate, direction and practice, and anxiety will turn to confidence as more is known and understood going forward,” Loftis wrote.
