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Adopt new deadly force standard for police in Washington

Fri., Dec. 9, 2016

Washington is the most difficult state in which to prosecute a law enforcement officer for unreasonable use of deadly force, thanks to statutory language written 30 years ago. A state task force recently concluded that the law itself might be unreasonable.

Spokane police Officer Karl Thompson was convicted in the death of Otto Zehm on civil rights and obstruction of justice charges, but that took place in federal court. In state courts, only one case has been brought since 1986, and the Everett police officer was found not guilty.

Prosecutions are rare because the statute protecting officers is the most restrictive in the nation. A prosecutor must persuade a jury that an officer acted with evil intent. As long as officers act in “good faith” and “without malice,” they are protected. Proving bad faith and malice is an exercise in mind-reading. Absent a confession, it’s futile.

For instance, an officer may veer from training and do the wrong thing, but if he or she believes it was the right thing, then it may be deemed an act of good faith. In other states, such an officer could face prosecution for negligent homicide.

Public trust is damaged when “awful but lawful” shootings occur, so the Joint Legislative Task Force on the Use of Deadly Force in Community Policing was formed to examine current law and recommend changes.

The goal was to try to find a balance between holding officers accountable while not unduly placing them in greater danger. With national headlines on police shootings and the passion surrounding the issue, this is a ticklish subject. The task force was put together with this sensitivity in mind. It included prosecutors, public defenders, lawmakers, law enforcement officials and leaders of minority communities.

The group recently released its report, and most of the 26 members said the law should be changed, but they couldn’t settle on what that change should be. Sixteen members said the “malice” standard should be dropped. Thirteen members said “malice” and “good faith” should be dropped. Law enforcement representatives want to keep both.

The issue now moves to the Legislature, where lawmakers will consider bills on the matter.

We appreciate that law enforcement officers face dangerous situations that require split-second decisions, but a single prosecution in 30 years suggests the state’s law is extreme. In that one case, an Everett police officer shot through the back window of a car, killing a drunken driver who wouldn’t follow commands. The officer said he feared the driver would throw the car in reverse and run over him. His partner disagreed with that assessment, saying neither one of them was in imminent danger.

Tom McBride, the executive secretary for the Washington Association of Prosecuting Attorneys, describes an objective standard: “Would a reasonable officer in the same circumstance take those actions?”

That strikes a better balance between protecting officers and being able to hold them accountable for unnecessary fatalities.

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