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Shawn Vestal: Police need legal leeway, but not as much as they’re given in Washington

Shawn Vestal (Dan Pelle / The Spokesman-Review)
Shawn Vestal (Dan Pelle / The Spokesman-Review)

You’ve probably heard of Laquan McDonald, the 17-year-old in Chicago who was shot to death by police while walking away from officers with a knife in his hand.

Of the many disturbing videos that we have seen in recent years, the McDonald footage is among the worst – an apparently premeditated and unjustified decision to fire 16 shots at a teenager who was not posing an immediate threat. Prosecutors have charged the officer with first-degree murder.

Could a prosecutor in Washington state make a similar call, if that happened here?

This is not an idle question. Washington has the nation’s most lenient threshold for the use-of-force by police officers, making it virtually impossible to file a criminal charge against a cop for using deadly force. (It was the feds, remember, who prosecuted and convicted Karl Thompson, in a case with clear-cut video evidence of excessive force.) Under a 1986 statute, officers cannot be convicted of a crime for using deadly force if they acted in good faith and without malice.

In a realm of reasonable doubt, this is close to an impossible threshold – peering into an officer’s heart to gauge the faith and malice – and police reform advocates argue that it serves to protect negligent or reckless cops and corrode the relationship between cops and citizens. King County Prosecutor Dan Satterberg has called it “the perfect defense” that keeps officers out of court in shootings. Amnesty International has called it the “most egregious” use-of-force law in the country.

“It’s a standard that says to a police officer, ‘You will virtually never be charged for shooting a suspect,’ ” Jeff Robinson, a longtime Seattle defense attorney who now heads up the ACLU’s national Center for Justice, told lawmakers last year.

Lawmakers, police officials and community leaders from across the state are debating whether the “good faith” and “malice” standards should be eliminated to align with the standard most common in other states: whether the officer reasonably believes the suspect poses a threat. Last year’s Legislature created a task force to discuss the use of deadly force and the possibilities for reducing violent interactions between police and citizens – an effort that stumbled out of the blocks this year because some task force members, particularly law enforcement representatives, made it clear from the outset that they resisted changing the law. Only in the third of four meetings did the task force even begin to squarely take up the subject.

Meanwhile, a citizens initiative to remove the “good faith” and “malice” portions of the law is in the early stages, and supporters point to a key reason that any reform might face an uphill battle in Olympia: the power of the police unions, which have long opposed efforts to restrict how and when officers are allowed to shoot suspects, in conjunction with “tough-on-crime” conservative lawmakers.

The task force itself, after all, came into existence only following the failure of a legislative proposal to change the law, and some members have already made it clear that they aren’t interested in change. One of the co-chairmen, Sen. Kirk Pearson, R-Monroe, said in June that reviewing the police-shooting law is “beyond what this committee was designed to do.”

This is manifestly untrue. It is the very first thing the task force was designed to do. Here is what the law says: “The task force shall: (a) Review laws, practices, and training programs regarding the use of deadly force in Washington state and other states … ”

Whether the group will do a substantive or shallow job remains an open question. It has a December deadline to produce a preliminary report and recommendations, and a December 2017 deadline for a final report.

When it comes to deadly force, citizens and the courts have often had to draw boundaries for reluctant police. In 1985, for example, the Supreme Court ruled that police could only shoot fleeing suspects if they were believed to pose a threat – not simply for running away. Self-described law-and-order types and police unions decried the new limits. The Seattle Police Officers Guild president said, “If you can’t shoot fleeing felons, then you are relegated to a foot chase and being expert at karate and jiu jitsu and all that exotic stuff you see in the movies and on television.”

He needn’t have worried, in part because Washington’s Legislature promptly passed the bill that included the “malice” and “good faith” language. Last year, the Seattle Times did a deep and excellent bit of reporting on deadly force in Washington. It found that between 2005 and 2014, 213 people were shot by police. One was charged with a crime, and that officer – who shot and killed a suspect through the back window of his car – was acquitted.

Police officers are in a unique and important position, and should not be punished for making honest mistakes in dangerous circumstances. But neither should they be completely sheltered from consequences of their actions, and that balance is out of whack in Washington. Attorney General Bob Ferguson made that clear earlier this month when he announced his decision not to file charges against three Pasco officers who fatally shot a migrant worker, Antonio Zambrano-Montes, who had thrown rocks at them.

“While I am confident that my decision not to bring charges is legally correct,” Ferguson wrote in a letter to the governor, “I am deeply troubled by Mr. Zambrano-Montes’s death. I believe that the use of deadly force in this case, though legally justified, was not the only possible way to protect the police and the public from his dangerous behavior.”

Shawn Vestal can be reached at (509) 459-5431 or shawnv@spokesman.com. Follow him on Twitter at @vestal13.