A bill that defines “use of force” and clarifies that law enforcement can use physical force during an investigative detention received a last-minute, problematic amendment in the Senate.
HB 2037 has been heavily negotiated this session and involved several meetings with advocates and law enforcement. However, during the
Senate policy hearing, an amendment requiring a law enforcement officer to only use force during an investigative detention (aka Terry Stop) when a person is “intentionally” fleeing a lawful, temporary detention for a “criminal offense.”
This amendment creates two problems:
- First, the definition of “fleeing” already implies an intentional act. Cities are unsure how a person who is told they are not free to leave by a uniformed officer could unintentionally flee. Thus, cities suspect that each investigative
detention will now be challenged and require an officer show “intent” on the person who was attempting to flee.
- A second and more serious problem is created by the addition of “criminal offense.” It appears the inclusion of this language is to, once again, raise the requirement that law enforcement have probable cause before they can use force during
an investigative detention. The whole purpose of a Terry Stop is to confirm or dispel the officer’s belief that criminal conduct is occurring. This type of detention only requires reasonable suspicion as the person is not under arrest but
is also not free to leave.
If an officer must first establish an actual criminal offense is occurring before an officer can use force to compel a person to remain during an investigative detention/Terry Stop, this negates the purpose of the investigative detention. A person who
chose not to stay would, presumably, be free to leave as an officer could not use force to detain, unless the officer had enough information that a criminal offense was occurring.
HB 2037 has been worked on and negotiated for months. It is very concerning to see the language impacted by a last-minute amendment. AWC is concerned about this change and the confusion and increased liability it will cause.
We continue to work with the prime sponsor to address these concerns.