2021 a major year for police reform in Washington

The 2021 legislative session saw several pieces of major police reform become law, as well as the Legislature adopting new legislation to address the impacts of State v. Blake. While AWC supported the majority of police reform bills, we also pushed back on policies that would have created additional risk and higher financial liability for cities.

The Legislature passed several bills that address tactics police can use, the degree of force an officer may use, and factors that law enforcement must consider before using any degree of force, among several other sweeping changes.

HB 1054 prohibits the use of chokeholds or neck restraints on another person and prohibits the use of a “no-knock” warrant. The bill changes the standard for when an officer may engage in a vehicular pursuit to that of “probable cause” except for a suspected DUI, which remains at “reasonable suspicion.” The bill limits which kinds of surplus weapons a department may receive from the military.  Additionally, the bill limits when officers can use tear gas and requires the highest-ranking elected official in a jurisdiction to authorize the use of tear gas against members of the public. Finally, under the bill, the Criminal Justice Training Commission (CJTC) is tasked with developing a model policy and training program for police K9 units.

SB 5066 establishes a duty for law enforcement officers to immediately intervene if a fellow officer is using excessive force and to render aid to the person. The bill also requires officers to report any criminal conduct by another officer. The department must report to the CJTC any disciplinary action taken against an officer for the failure to intervene or report wrongdoing. HB 1310 creates a statewide use of force standard. The standard includes requirements for verbal warning and de-escalation tactics as well as a requirement that officers use the minimal degree of physical force to address a situation that requires the use of force. The bill specifies the factors an officer must consider when using force and establishes criteria for the use of lethal force. Cities retain the ability to enact more stringent use of force standards.

Beyond placing restrictions on the kinds of tactics allowed and the standards for use of physical force, the Legislature created new reporting and investigative bodies. HB 1089 provides the State Auditor’s Office with the authority to conduct compliance audits of a law enforcement agency at the conclusion of a deadly force investigation. The Auditor can conduct audits to determine if agencies are compliant with all applicable state laws, policies, and procedures. SB 5259 creates a program at Washington State University (WSU) to gather and report data collected by law enforcement agencies. The bill expands the kind of data and incidents that must be collected.

The Legislature passed HB 1267, establishing the Office of Independent Investigations (OII) within the Governor’s Office. The purpose of the office is to conduct fair, thorough, transparent, and competent investigations of police use of force and other incidents involving law enforcement. The OII will be staffed by a director as well as an investigator, as chosen by the director. The two will be classified as limited authority police officers with the ability to investigate any case within the jurisdiction of the OII. Beginning July 1, 2022, the OII is authorized to conduct investigations of deadly force cases occurring on or after July 1, 2022, including in-custody or out-of-custody deadly force incidents.

SB 5263 modifies the felony bar rule, a provision in state law that states a person injured or killed while they are committing a felony cannot recover damages from the party that injured or caused their death. The bill includes a specific provision for law enforcement officers that exempts them from the felony bar unless a court determines, beyond a reasonable doubt, that the person injured or killed during an arrest was engaged in a felony at the time of injury or death.

One major lift by the Legislature this session was SB 5476, which addresses the impacts from the State v. Blake. As passed by the Legislature, the bill addresses criminal penalties, establishes a committee to make recommendations on how to address the long-term impacts of Blake, invests in substance misuse prevention efforts and law enforcement training, and provides tens of millions of dollars to counties to meet the cost of vacating previous felony convictions. A full summary of the bill is available here.

Looking forward to the 2022 legislative session, we expect that police reform will remain a priority for the Legislature.