Opponents and supporters of Washington Initiative 940 on deadly force were allies, and could be again

Politics often makes strange bedfellows. But an initiative that would change state laws governing the use of deadly force by police managed to turn adversaries into allies early this year, then back into adversaries for the fall campaign. They hope to become allies again in a few months.

While that may be confusing, it tracks the political trajectory for Initiative 940, the off-again, on-again November ballot measure.

Community advocates and law enforcement groups agree I-940 isn’t the best way to improve state laws on the use of deadly force by police. Both agree that a different plan, with the compromises they hammered out – and that the Legislature approved on the final day of the 2018 session – would be better.

Those who worked to create the initiative say Washington’s law makes it nearly impossible to charge an officer who uses deadly force, even if the officer acted in a reckless manner, because the law requires an officer to have acted with malice.

Proving malice is difficult. After Otto Zehm, an unarmed janitor who suffered from schizophrenia, died in Spokane police custody in March 2006 following an encounter with police that included multiple baton strikes, being hogtied and shocked with a Taser, county prosecutors declined to file charges. Former SPD Officer Karl Thompson Jr. eventually served four years in prison after he was convicted on federal charges.

Change advocates and a majority of legislators hoped they could pass I-940 and the negotiated changes in legislation they wrote to accompany the initiative. They hoped the changes would take effect the day after the initiative became law as a way to keep everything off the ballot.

But on Wednesday, a sharply divided Washington Supreme Court ruled I-940 must go on the ballot unchanged, while the legislation cannot. Lawmakers tried an unconstitutional end-around to laws that govern initiatives the public sends them, the court ruled.

With I-940 headed for the November ballot and the accompanying bill headed for the legislative scrap heap, the groups that came together for the compromise disagree on the next step: Pass the original now, and try to make the changes in the 2019 session; or defeat I-940 in November, and try to pass the improved version next year?

De-Escalate Washington, the group that sponsored I-940 and gathered nearly 360,000 signatures to send it to the Legislature, will work to pass it now and support legislation in 2019 that contains the changes.

“We will do what we were planning to do all along,” said Heather Villanueva, campaign manager for I-940. “We’re still committed to this process. We’re confident we’re going to win.”

People who signed the initiative showed they want to vote on it and they deserve that chance, she said.

De-Escalate Washington has raised more than $1.7 million so far, although most has been spent on the signature gathering campaign and the legal challenges others filed over what the Legislature did. But it has several large donors, including several West Side tribes, the ACLU and venture capitalist Nick Hanauer, who could be tapped for the fall campaign.

By comparison, opposition group Coalition for a Safer Washington has raised $90,147, almost all of it from the Seattle Police Officers Guild.

The Washington Association of Sheriffs and Police Chiefs, a key lobbying group for law enforcement officials that was involved in developing the compromise, will oppose the initiative and push the Legislature next year to introduce and pass a bill like what was struck by the Supreme Court.

Oppose respectfully, Steve Strachan, the group’s executive director, emphasizes.

“The folks from De-Escalate Washington negotiated this from the start when they didn’t have to,” Strachan said.

The language in the rejected legislation was simpler and more direct, Strachan said. It changed certain requirements for a police officer to provide first aid in an active shooter situation, training rules and independent investigations of shootings.

But the key point of contention for law enforcement officials was the change in the standard for reviewing situations in which an officer uses deadly force.

Current law says an officer can’t be held criminally liable for deadly force that is used without malice and with a good-faith belief the use is permitted under state law.

I-940 would remove the protection against criminal liability for using deadly force without malice. Instead, it provides that protection only if deadly force meets both an objective and subjective good-faith test. An objective good-faith test means the officer believed deadly force was necessary to prevent death or serious harm to himself or someone else. A subjective test means the officer believed there was a lawful purpose and it was warranted under the circumstances.

The rejected legislation would have removed the objective and subjective tests, and would have protected an officer from criminal liability if the facts, circumstances and information the officer knew at the time would cause a “reasonable officer” in a similar circumstance to believe deadly force was needed to prevent death or serious injury.

“I think it’s easier if (I-940) goes down,” Strachan said.

If both sides continue to agree that the changes in the rejected legislation are the ultimate goal, the math is on Strachan’s side to get there quickly.

If I-940 passes, state law says it can’t be changed in the first two years without a two-thirds vote of both chambers of the Legislature. The bill exceeded that supermajority in the House, but passed with just a one-vote margin in the Senate, where Republicans locked up against the unprecedented – and ultimately unconstitutional – maneuver to pass and amend an initiative in the same session. Some who voted no, however, said the alternative was better than the initiative.

Senate Republicans also tried but failed to vote down I-940, and their objections involved the substance of the initiative, not the process.

If I-940 fails, the alternative bill from 2018 needs only a simple majority in each chamber. But predicting what a new Legislature will do after the November elections can be risky. If the initiative fails and the alternative bogs down, the law won’t change.

Both sides of the initiative campaign say they will work together to get those changes in 2019. The question is whether the coalition they formed early this year will re-form after the campaign if it gets heated. Right now, both sides say it can; two months of electioneering lie ahead.