When judging the actions of law enforcement officers who use deadly force, Washington applies the most permissive legal standard in America. We are the only state with a “malice clause” that shields police from prosecution for on-duty shootings without substantial proof of “evil intent.” When the defendant is a professional whose job requires a gun and a badge, and who is protected by layers of unions, lawyers, colleagues, and our own natural respect for those who protect us, this language has become a perfect defense.
Three years ago, a Seattle Times investigation found that police killed 213 people in this state from 2005 to 2014. Only one officer was charged in state courts for an illegal use of deadly force. In that one case, an Everett officer who shot a drunk driver in 2009, was acquitted.
This would be good news if there was evidence that these killings were overwhelmingly justified. The most welcome interpretation would be that the officers we trust to enforce the law made 212 obviously good decisions, and one good decision that initially looked bad. Unfortunately, there is strong evidence that too many of these shootings were unjustified.
In 2010, a Seattle officer fatally shot John T. Williams, a woodcarver who was crossing the street with a scrap of wood in one hand and a closed pocketknife in the other. There was dash-cam video of the encounter. That saga involved the officer resigning, the victim’s family receiving a $1.5-million settlement, and the Justice Department opening a civil-rights investigation of Seattle police. The federal probe led into a court order forcing Seattle to revise a slew of policies surrounding the use of force, and the police chief at the time stepped down under pressure. Every conceivable alarm went off — except that state authorities did not prosecute the officer even after the police department’s Firearms Review Board ruled the shooting as “unjustified,” because the malice clause clearly made it a waste of time and money.
In 2012, a Spokane officer was sentenced in federal court for his role in the beating death of Otto Zehm. A false report that Zehm had stolen money from an ATM spiraled into a brutal take down. Zehm, an innocent man “armed” only with a 2-liter soda bottle, was beaten, Tasered, and went into cardiac arrest while hog-tied on the floor. Again, there was video. Again, Spokane paid over a million dollars to Zehm’s family. The federal government brought a criminal case in which the officer most responsible was found guilty. But yet again, the state was unable to bring charges.
These are far from isolated incidents. Not only are they a tragedy for the victims and their families, but it’s embarrassing to the state of Washington when so many other parts of the legal system can hold officers accountable, but our own state justice system can’t.
Enter Initiative 940. It tells the state body that sets police standards to train officers in ways to avoid sudden, unnecessary escalation to lethal force, especially when dealing with suspects who are impaired or mentally ill. It also removes the malice clause from state law.
In place of the “evil intent” wording, officers who use deadly force would be given a two-part test: “The objective good faith test is met if a reasonable officer, in light of all the facts and circumstances known to the officer at the time, would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual. The subjective good faith test is met if the officer intended to use deadly force for a lawful purpose and sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.”
It’s important that the initiative holds officers accountable. It’s even more important that it holds them accountable to the standards of real cops instead of armchair cops. Police work is not some simple flowchart that can be fixed by sketching in a new box that says “de-escalate” before the one that says “draw weapon.” Encounters with violent suspects can be more sudden and bizarre than we sometimes imagine, as we’ve seen locally. In 2016, sheriff’s deputies and a Kelso officer killed a man who had led them on a high-speed chase, left his van, recovered from being Tasered, and was swinging a running chainsaw at them. Later that year, a Kelso officer responded to the Flying K gas station and encountered a stick-wielding assailant who ran at him, knocked him down, and was continuing to attack when the officer killed him. In both of those cases, the officers’ actions were considered justified. Just this past Wednesday, local officers killed transient Weston Willow Well Cole. According to witnesses and Longview police, Cole had barged into an occupied home and opened fire on officers outside.
In real life, there is not always time to hold a conversation about a suspect’s mental health status, and I-940 doesn’t pretend there is. Under the initiative, the de-escalation training would be designed and administered by an existing group of experts who work for the state. Officers would be accountable not to some panel of Monday-morning quarterbacks, but to what a reasonable officer would have done using the information available at the time. Washington voters should approve I-940. It replaces our malice clause with a reasonable test that sets high standards for police while still allowing them to defend themselves.