Confusion besets new police reform laws in Washington state Seattle Tacoma Minneapolis Derek Chauvin Montana

Washington state is launching a massive experiment on police reform and accountability following the racial justice protests that erupted following the assassination of George Floyd last year, with nearly a dozen laws going into effect Sunday.

But two months after Governor Jay Inslee signed the laws, law enforcement agencies are unsure of what they need, creating discrepancies across the state in how officials react – or not react – to certain situations, including active crime scenes and mental crises.

“If you adopt and apply the laws, you’ll really learn how effective they will be,” said Rafael Padilla, the chief of police in Kent, a suburb to the south of Seattle. “The challenge is – I’ll be frank – the laws were very poorly written, and the combination of it all has created conflict in clarity and between what was intended and what was written.”

The laws, passed by a Democrat-controlled legislature and signed by a Democratic governor, represent perhaps the most ambitious police reform legislation in the country. They cover virtually all aspects of policing, including the background checks officers go through before they are hired; when they are authorized to use force and how they collect data about it; and the establishment of an entirely new government agency to monitor the use of lethal force by the police.

Supporters said they would create the strongest police accountability in the nation and help resolve racial inequality in the justice system – “a people’s mandate to stop cops from violating our rights and killing people,” said Sakara Remmu of the Washington Black Lives Matter Alliance. According to the advocacy group Moms Demand Action, police have killed 260 people in Washington state since 2013. It was disproportionately black – including Manuel Ellis, whose death in Tacoma last year led to murder or manslaughter charges against three officers and some of the legislature.

Rep. Jesse Johnson, the first Federal Way Democrat to back draft laws on police tactics and the use of force, admitted some clarification was needed – but said it was not uncommon with complex laws.

“We have to create new guidelines because what we were doing before didn’t work,” said Johnson. “With these bills we wanted to set the expectation that the officials would de-escalate and that the law would be enforced less fatally. Much of the pushback we’re getting is because it’s a paradigm shift. “

The measures ban choke holds, neck rests and arrest warrants, and limit the use of tear gas and military equipment. Inspired by the Minneapolis officials who stood by when their colleague Derek Chauvin pressed a knee to Floyd’s neck, they asked officials to intervene if a colleague used excessive force and report the wrongdoing of other officials.

They limit when officers can take part in car chases; Facilitating police decertification for bad deeds; make it easier to sue individual officials; and require the police to exercise “reasonable care” in the performance of their duties, including using appropriate de-escalation tactics, before violence is used.

Law enforcement officials accepted some of the changes, saying they shared the legislature’s goals.

But uncertainty about compliance with the new laws, coupled with a greater possibility of being decertified or personally liable in court, puts officials in a difficult position, they say.

“Police reforms may have the positive effect of reducing the number of violent interactions between law enforcement and the public,” Steve Strachan, executive director of the Washington Association of Sheriffs and Police Chiefs, said in a statement. “We owe it to the public we serve, however, to be open and share that we are deeply concerned that some police reforms may have unintended results that lead to more confusion, frustration, victimization and increased crime in our communities.”

For example, restricting military weapons would inadvertently ban some less lethal impact weapons, including the shotguns that police use to fire beanbag chairs.

Johnson said the context makes it clear that the intent was to adopt less lethal weapons rather than ban them. He expected the Attorney General to clarify until lawmakers can finalize the wording next year.

But in the meantime, some departments, including the Spokane Police Department and the King County Sheriff’s Office, have hung up their beanbag guns, while others, including Kent and Auburn south of Seattle, will continue to use them.

Even more significant is the change in when officials can use “physical violence” – a term that is not defined in the new law but is usually interpreted to mean as little violence as handcuffing. The attorney general has been tasked with developing a model guideline on the use of force by next July, but for now the authorities are consulting with lawyers to determine what the new law means.

Historically, the police have been empowered to briefly arrest someone by force if there is reasonable suspicion – a reasonable assumption based on facts that someone might be involved in a crime. You could then conduct further investigations to determine if there is a likely cause for arrest.

But under one of the new laws, the police now need a probable reason – a higher standard based on evidence that the person committed or wanted to commit the crime – before they can use force. You can also use force if there is an imminent threat of injury; You can only use lethal force to protect yourself from an imminent danger of serious injury or death.

The higher standard is designed to prevent police from using force against the wrong person – something that happens too often, especially in communities of color, Johnson said.

But it also means that sometimes the police have to let the bad guy go, at least temporarily.

For example, if officers show up at a break-in and see someone who partially matches the suspect’s description – but has no confirmation that it is the same person – they can ask that person to voluntarily quit. If the person leaves, officers cannot use force to hold them down while they figure out if they have the right suspect, they say. An arrest would have to be made later once the probable cause was established.

The Criminal Justice Training Commission, which runs the state’s police academy, is already using de-escalation tactics and started training on mandatory intervention last year before the law was passed. But it had to modify its teaching to cover the likely cause of the use of force.

During a recent training scenario, instructor Ken Westphal encouraged recruits who took testimony from a supermarket owner who had been threatened by a customer to ask, “How did you feel about it?”

Officials had to show the owner was feeling fear – an element of the crime of harassment – in order to develop a likely cause, Westphal said. Otherwise, they would have no authority to hold the suspect who was loitering around the corner when he ran away.

“There is no one else in the country who has to do that,” Westphal said afterwards. “We always worked with well-founded suspicions. Well, those force options aren’t there unless you have a probable reason. “

But this approach is not universal either. Some departments, including Kent, say that in violent crime or home burglary cases, they arrest suspects for disability if they flee, even if they don’t already have a likely reason for the underlying crime.

“I don’t let violent criminals run away,” said Padilla. “I understand why the Criminal Justice Training Commission does what it does, but you can see that even experts who have worked in the field for decades disagree on what these laws mean.”

No other departments, including the King County Sheriff’s Office, will arrest anyone in such circumstances. Disability – or “contempt for police officers” – is sometimes viewed as a frivolous charge brought when officers lack evidence of other crimes, and it is unclear whether prosecutors will prosecute them.

Similar concerns exist with regard to mental health calls. The police often respond to people in a crisis who do not commit crimes, sometimes accompanied by a “designated emergency worker”. Under current law, the emergency responder may order that the person be involuntarily detained for psychiatric treatment, but the police are increasingly refusing to show up, according to Disability Rights Washington advocacy group.

That’s because officers aren’t sure they are still authorized to use force to detain or transport these people for no impending harm or probable cause, officials say. In addition, the police are now required to use appropriate de-escalation tactics; this can include simply leaving the scene.

These laws come into effect because the police force has left the state or profession in droves. Seattle killed hundreds of officials after clashing with protesters, criticizing and talking about “defunding” last year. With a huge spike in early retirements and the brain drain in Idaho, Montana and elsewhere, Kent Police are losing 21 of their 70 uniformed patrolmen this year, Padilla said. He blamed the anti-police sentiment and the new laws.

With resources to respond to active violent crimes limited, departments must decide whether it is worth responding to such non-criminal mental health calls when officials are just leaving, say some law enforcement executives.

This idea drew criticism. In a blog post, Kim Mosolf of Disability Rights Washington and Enoka Herat of the American Civil Liberties Union of Washington wrote that some departments “dangerously misinterpret” the law.

Nothing in the measure will negate the police’s ability to help with mental health calls, they said. Indeed, under the Involuntary Treatment Act, the police still have strong liability protections.

Sgt. Tim Meyer, a spokesman for the King County Sheriff’s Office, noted that responding to new laws or court orders is nothing new to law enforcement.

“As we become more familiar with the application of these laws, we will adapt and continue to serve the community,” Meyer said.