On March 8, the Legislature passed Initiative 940, which changes the legal standard for when an officer is protected from criminal liability for the use of deadly force. Before I-940 passed, the Legislature passed HB 3003, a bill that would amend the initiative’s language once a referendum period passes and the law becomes effective. This process was unprecedented; but many in the Legislature felt that it was the best way forward based on agreement between the members of the law enforcement community and the initiative’s proponents.

On April 20, a Thurston County Superior Court judge ruled that the Legislature violated the state constitution when they passed an amendment to the initiative before voting to approve the initiative itself. The judge ordered the Washington Secretary of State’s Office to put the initiative (I-940) on the November ballot. However, the trial court’s decision has been appealed and it is likely that the Supreme Court will hear the case sometime in the next few months.

The initiative process, authorized under our state constitution (art. II § 1(a)), allows the people to submit a proposed law to the Legislature. Once the initiative is certified as having sufficient signatures, the Legislature must take one of the following three actions:

• Adopt the initiative as proposed, in which case it becomes law;
• Approve an alternative to the proposed initiative, in which case both the original proposal and the Legislature’s alternative must be placed on the ballot at the next general election; or
• Reject or refuse to act on the proposed initiative, in which case the initiative must be placed on the ballot at the next general election.

The judge ruled that the Legislature enacted I-940 with an amendment, violating the constitution. In effect, the judge reasoned, the Legislature did not act on I-940, as written; but instead voted to pass I-940 with amendments already passed in ESSHB 3003. Therefore, the Legislature took no action on I-940 as proposed by the people, and so it must go to the ballot.

I-940 proposes the following changes to current law:

• Use of deadly force must be rendered in good faith. The use of deadly force by a law enforcement officer is justifiable if the officer’s action meets a good faith standard. The proposed standard has two parts:
  • Reasonable officer test – A reasonable officer, considering all the facts and circumstances known to the officer at the time, would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual.
  • Actual intent – If the officer intended to use deadly force for a lawful purpose and sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.
• Duty to render first aid. States that all law enforcement personnel have a paramount duty to preserve the life of persons law enforcement officers encounter and must render first aid.
• Mandatory violence de-escalation and mental health training. Requires that all law enforcement officers in the state must receive violence de-escalation training and mental health training. Newly-hired officers must complete training within the first 15 months of employment. The initiative includes provisions for establishing training curriculum.