The Attorney General’s (AG) Office has released a new opinion on use of “physical force” by law enforcement, interpreting laws passed in 2021 (HB 1310 and HB 1054) and clarified in 2022. The opinion responds to liability questions posed after the passage of the new restrictions on use of force and tactics as they related to emergency aid, use of tactics in imminent threat situations, and the continued applicability of the “reasonable officer” precedent in Graham v. O’Connor.

The opinion states:

4.     [a] Peace officers may not use physical force when providing emergency aid unless a statutorily-enumerated circumstance allowing officers to use force applies, such as that there is an imminent threat of bodily injury to the officer, another person, or the person against whom force is being used. [b] Leaving the scene is an option officers can consider when attempting to de-escalate a situation, but not a statutory duty. [c] E2SHB 1310 and subsequent amendments do not impact potential common law liability for officers who provide emergency aid.

5.     ESHB 1054 prohibits peace officers from using chokeholds and neck restraints. E2SHB 1310 removes civil liability and other consequences for officers using otherwise prohibited tactics such as these to save human life from imminent threat, but that does not mean that such tactics are authorized.

6.     The undefined terms “possible,” “available,” and “appropriate” in E2SHB 1310 and subsequent amendments would likely be interpreted according to their plain meaning or commonly-understood definitions. Nothing in the text or legislative history of E2SHB 1310 indicates that the legislature intended to incorporate the Graham “reasonable officer” standard into the terms of the law, and in fact the legislative history indicates the opposite.

The previous opinion addressing questions 1-3, related to the definition of physical force, Terry stops, and other statutes addressing physical custody, was released in January 2022 and clarified by the 2022 legislation.

Reminder: December 1, 2022 was the deadline for cities to submit their use of force policy to the Attorney General’s Office. You can find the AG’s model use of force policy here.