Breaking down Washington police reform from this year and last

Law enforcement agencies across the state have faced a whirlwind of police reforms — and re-reforms — over the last few years.

In short, officers can one again use force to briefly detain people while on patrol, though vehicle pursuits will remain a tool for only the most urgent of situations. In the meantime, they’ll be picking up new less-lethal launchers, which are now legal once more.

All those changes and more were addressed by the state Legislature this year, and they go beyond Kent and its neighboring cities. Law enforcement officers statewide, from sheriffs to police to troopers, are in the middle of some major changes to the way they do their jobs.

First, a refresher: Legislators last year passed more than a dozen bills aimed at reforming law enforcement, sparked by a nationwide cry for police accountability and bolstered by efforts from regional activists and families of those killed in encounters with police.

That 2021 legislative session restrained situations in which police could pursue or use force against suspects, and banned military equipment, chokeholds and no-knock warrants.

Supporters argued the changes would reduce the number of police confrontations that turn deadly, address racial bias in law enforcement and keep officers honest.

The ACLU points to a roughly 60% drop in the number of people killed by police in 2021 compared to the two previous years (roughly 30 fewer people killed) as evidence the bills are working. Fatal police encounters in Washington fell to a five-year low last year.

“I think what was significant about last year was that the tactics bill and use-of-force bill were preventative of police violence,” said Enoka Herat, a policy attorney at the Washington state branch of the ACLU focused on police and immigration.

“They took away some of the most egregious, harmful tactics and tools used by law enforcement … and (required) that officers use the least amount of force, (and) stop using force when the necessity to use force ends,” Herat said. “Having that consistency across the state is really important. It’s about having a certain quality of policing across our state.”

Critics, meanwhile, said that some of the measures hamstrung officers, blocking them from using basic tactics to investigate crimes and giving criminals a pass in some situations to break the law.

Police wanted a thoughtful rebalancing of those laws, not a knee-jerk “rollback” to the status quo, said Steve Strachan, executive director of the Washington Association of Sheriffs and Police Chiefs (WASPC).

“(We sought) both the changes the community expects along with public safety,” Strachan said. “And that sentiment came from even the authors of the bills last year. Clearly, I think, there was an understanding among everybody that there needed to be changes, because there were a lot of unintended consequences.”

The 2022 legislative session wrapped up in March, updating many of the changes from last year. Here’s where the law stands now on several major areas in law enforcement.

Use of force

Legislators last year passed HB 1310, which limited police to use physical force only when they had probable cause to make an arrest, prevent an escape from custody or protect against imminent physical threats. Even then, they must try to de-escalate the situation first. The bill went into effect July last year.

This bill didn’t prevent police from conducting brief investigatory detentions called “Terry stops,” but it changed the rules around them.

During a Terry stop, an officer might ask a suspicious person not to leave the scene for a few minutes while that officers asks them some questions. (Those stops rely on “reasonable suspicion” of a crime, a lower standard than “probable cause.”) The person is legally detained during that stop, but they don’t have to answer the officer’s questions.

Previously, that officer could use force to stop them from fleeing — after HB 1310, they’d have to let that person go unless they had probable cause to make an arrest.

No longer. HB 2037 expanded the allowance of physical force, allowing officers to use it to stop someone who leaves a Terry stop as long as that person is first “given notice” that they are not free to leave.

Inslee signed the bill March 10, and because of its emergency clause, it took effect immediately.

Herat said it was “concerning” to the ACLU that legislators returned that use-of-force power to police.

“This really goes to our basic, fundamental constitutional rights of being able to walk on the street, or drive in our cars, without … being pushed or shoved or handcuffed by a police officer without justification,” Herat said.

The “given notice” standard, Herat said, doesn’t account for cases like that of John T. Williams, an Indigenous woodcarver who was carrying a pocketknife when he was shot dead in 2010 by a Seattle PD officer. The officer called out to him to “drop the knife!” four seconds before firing, but Williams, who was hearing impaired, may not have heard him.

“We want officers to communicate clearly, to ensure people have an opportunity to comply, in order to reduce violence,” Herat said. “And again, this is just about people walking down the street. … We should assume they’re innocent and treat them that way.”

Herat said the ACLU supported amendments to the bill which would have clarified that under existing court precedent, fleeing a Terry stop justifies an arrest for the crime of obstructing an officer — thus giving police a legal method to prevent suspects from fleeing Terry stops. Those amendments were ultimately withdrawn.

Police can be hesitant to overuse charges like “obstructing an officer” or “resisting arrest,” Enumclaw Police Cmdr. Mike Graddon said in an interview, especially in cases where they don’t have evidence for any other charges against a person.

“We don’t want to use a charge that’s not backed up by anything else,” Graddon said. “If somebody’s simply charged with obstruction, we want our officers to articulate why. … It raises an eyebrow if the only charge is obstruction or resisting. … We don’t want “contempt of cop” charges.”

Graddon added that policing has come “a long ways” since the killing of John T. Williams, and pointed to language in HB 2037 requiring that officers “when possible, exhaust available and appropriate de-escalation tactics prior to using any physical force.”

Getting back the ability to use force — however minor — in a Terry stop is “huge” for Enumclaw officers, Graddon said.

“We’re going to go slow, allow every opportunity … to de-escalate, have the fire and medical services to assist, (and) create time and distance before we go hands-on,” he said. “(Both) because the law says we have to, but also because there’s instances where that’s simply the right thing to do.”

The Legislature this year also passed HB 1735, which went into effect March 4. It explicitly allows officers to use force to take a person into custody, execute a warrant or involuntarily commit them for a mental health evaluation or treatment.

“This was an intent to clarify,” Herat said. “There were already existing statutes saying an officer can take someone into custody, or into services. I don’t think it was the intention of (HB 1310) to suddenly make all of those statutes invalid.”

That bill was sponsored by Rep. Jesse Johnson, the Federal Way lawmaker who sponsored the sweeping police reform House Bills 1310 and 1054 last year. Various police and fire departments joined organizations like the ACLU in support, and the bill passed the House 90-5 and the Senate unanimously.

Equipment and tactics

The Legislature passed HB 1054 last year, rolling together a number of new limitations on police tactics and gear. It banned chokeholds and neck restraints, put limits on the use of tear gas, and banned “no knock” warrants, like the one that led to the high-profile police killing of Kentucky woman Breonna Taylor in March 2020.

HB 1054 also banned the use of surplus military equipment by police agencies, such as weapons and ammo of .50 caliber size and higher, armed helicopters and tanks. Agencies were required to return or destroy that equipment by the end of this year.

But police agencies pointed out that the caliber limits ironically barred officers from using some less-lethal weapons like bean bag guns, which fire extremely large but relatively low-impact projectiles.

So Inslee signed HB 1719, which unanimously passed in the legislature, on March 4. It clarified that officers could once again use larger ammunition and weapons but only for shotguns and less-lethal weapons. Departments are still expected to surrender any other “military gear” they have.

Graddon said 1719 was a “welcome bill.” EPD shelved their bean bag shotguns last year due to HB 1054 but will be replacing them with 40 millimeter launchers, which are more accurate.

“I’ve seen (less lethal weapons) work over and over again in my career,” Graddon said. “They’ve very effective tools to really end, and have a good end, to an encounter with somebody who is armed with a weapon.”

Vehicular pursuits

Last year’s HB 1054 also tightened up the rules for when police can engage in a vehicle pursuit, limiting officers to only be able to initiate one if they have probable cause the suspect has committed a violent, sex, escape or DUI offense. Police agencies prior to that law had wide latitude to set their own rules on vehicle chases.

SB 5919 would have allowed officers to engage in pursuits if they have reasonable suspicion someone in the vehicle had committed one of the crimes laid out under 1054, or any crime if risk of failing to apprehend or identify the person outweighs the risk of the pursuit. It had passed both chambers when it initially covered Terry stops as well as pursuits but failed its second time around in the Senate when legislators cut it down to just cover pursuits.

HB 1788, sponsored by 31st District Rep. Eric Robertson, would have also given police more ability to pursue speeding vehicles, but it failed to pass too. That means the pursuit standard of last year’s HB 1054 stands.

Pursuits are “inherently risky,” Strachan said, and he agreed that there should be a uniform state-wide standard on pursuits to ensure they “are kept to a minimum.”

“But the law [HB 1054] currently written has created, I think, a very, very dangerous environment of people flouting the law, led to increases in crime, and (created) an atmosphere of significant danger to the public,” Strachan said.

Herat agreed that vehicle pursuits are dangerous and risky, and said expanding their use would have been a mistake.

“These limits [set last year by the Legislature] are reasonable and common sense,” Herat said. “I’m glad to see our legislature stuck with them.”

Drug possession

Let’s rewind to February 2021, when the Washington State Supreme Court ruled in State v. Blake that the Washington’s law around simple possession of a controlled substance — aka, your garden-variety drug possession — was unconstitutional, because someone could be convicted of possessing a drug that they didn’t even know they had on their person.

That decision had the effect of immediately invalidating charges for simple drug possession, causing people charged under that statute to be released from jail and dismissed of those charges. Many who are already convicted may be able to get those convictions vacated.

The legislature responded last year by passing SB 5476, a fix-it bill that re-criminalized drug possession by making it a misdemeanor rather than a felony and requiring more diversion efforts for those who do possess drugs. (Federal law still outlaws possession of many controlled substances.)

Lawmakers didn’t pass an update to the Blake situation this year, but they’ll likely address it next year. The effects of SB 5476 are temporary and expire on July 1, 2023, compelling legislators to come up with a solution which is, ideally, more permanent.

OTHER POLICE REFORM EFFORTS

Many other measures were proposed or went into effect in 2021 and 2022. Here’s a brief rundown.

In 2021:

• Passed HB 1088, which required law enforcement agencies to report to prosecutors evidence about officers around misconduct, or evidence that could be exculpatory to a criminal defendant. Police agencies must also check whether a new officer hire has been subject to impeachment disclosures before, though that is not in itself a bar to their employment.  

• Passed HB 1089, which required the state auditor’s office to audit any completed deadly force investigations.

• Passed HB 1140, which required police to provide juveniles access to an attorney before they detain the juvenile, request to search the juvenile’s property, or ask them questions which “are reasonably likely to elicit an incriminating response.” The bill carved out exceptions for trafficking victims and when information is needed to prevent an imminent threat.

• Passed HB 1223, which required police to record any interrogations of juveniles or of situations related to a felony, with a few exceptions. Expect to see many police departments looking at body cameras and other video recording solutions in the near future in order to comply with this law.

• Passed HB 1267, which created a state office that can investigate uses of deadly force and reopen investigations by other agencies if new evidence is found.

• Passed SB 5051, which made it easier to decertify cops for misconduct like dishonesty or excessive use of force, and requires departments to conduct broad background checks before hiring officers.

• Passed SB 5066, which requires on-duty officers to intervene if they notice another officer using excessive force, to aid the victim of excessive force if possible and to report any wrongdoing by a fellow officer to their supervisor.

• Passed SB 5259, which started a program to research the idea of creating a system to track and report on police uses of force.

• Passed SB 5263, which modified the felony bar standard for police actions that lead to wrongful death or personal injury legal cases, making it slightly easier to raise civil action against police.

• Passed SB 5353, which directed the State Department of Commerce to launch a program encouraging better community engagement with law enforcement.

In 2022:

• Didn’t pass HB 1507, which would have established a unit in the Attorney General’s office with authority to investigate and prosecute uses of deadly force by police.

• Didn’t pass HB 1202, which would have created a civil cause of action for anyone mistreated by an officer to sue that officer, effectively stepping around the doctrine of “qualified immunity” which generally shields individual government employees from civil suits when they make reasonable but mistaken legal judgements. It would have also given the Attorney General power to investigate and sue officers or agencies over patterns of misconduct.

• Didn’t pass SB 5485, which would have prohibited police from stopping drivers for certain traffic violations like improper turns or driving without a license.