Legislature clarifies police reform laws, restricts open carry in local government buildings

The 2022 Legislature adopted several bills to clarify unintended consequences of several of the significant police reform laws adopted in 2021. AWC continued to support the reforms while also advocating for greater clarity with some of the key changes related to law enforcement use of force.

HB 1719 amends the definition of military equipment in the restrictions adopted last session to allow law enforcement officers to use less-lethal alternatives, such as bean bag rounds, fired from a rifle of .50 caliber or greater. The previous definition was overly broad and inadvertently prohibited firearms that are used in less lethal alternatives.

After the passage of HB 1310 in 2021 on law enforcement use of force, interpretations varied on whether an officer could use force absent probable cause for an arrest or to prevent a person from harming themselves or others. HB 1735 expands the authority for a law enforcement officer to use physical force, subject to the requirement to exercise reasonable care. An officer may use physical force to:

• Take a person into custody;
• Transport a person for evaluation or treatment or providing other assistance under civil or forensic commitment laws;
• Take a minor into protective custody when authorized or directed by statute;
• Execute or enforce a court order authorizing or directing a peace officer to take a person into custody;
• Execute a search warrant; or
• Execute or enforce an oral directive issued by a judicial officer in the courtroom or a written order where the court expressly authorizes a peace officer to use physical force to execute or enforce the directive or order.

HB 2037 is another necessary clarification related to defining physical force. Several bills passed in 2021 address when an officer could use physical force, but did not define what qualifies as physical force and left unclear whether law enforcement could use physical force during the initial investigation when arriving on scene.

After many hours of discussion and negotiations involving legislators, multiple stakeholders and both political parties, HB 2037 creates a clear definition and specifies when physical force is deemed necessary. Physical force means any act reasonably likely to cause physical pain or injury or any other act exerted upon a person's body to compel, control, constrain, or restrain the person's movement. Physical force does not include pat-downs, incidental touching, verbal commands, or compliant handcuffing where there is no physical pain or injury.

Law enforcement officers may use physical force, if necessary, to prevent a person from fleeing a lawful temporary investigative detention, also commonly referred to as a Terry Stop. The law requires that an officer must first give notice to a person that they are not free to leave the location. This resolves the confusion created by HB 1310, on whether law enforcement could use physical force during the initial investigation when arriving on scene. The confusion and inconsistent application of the law directly conflicted with AWC’s stated goal to have a clear statewide standard for the use of physical force by law enforcement.

AWC supported all three of these bills and advocated for their passage. Each bill contains an emergency clause, which means that the new laws are now in effect as of the date they were signed by the Governor.

One major police reform related to pursuits did not pass in 2022. SB 5919 took many different forms during the session but ultimately would have expanded the instances when a law enforcement officer could engage in a vehicular pursuit. Additionally, it would have lowered the threshold for engaging in a pursuit from probable cause to reasonable suspicion. However, the bill did not make it through the process in time.

Another issue that relates to public safety involves the Blake decision from 2021. The Supreme Court determined that the statute that penalized possession of a controlled substance was unconstitutional because it lacked the requirement that a person “knowingly” possessed the substance. The statute had been in effect since 1971. There are potential impacts for cities with ordinances for simple drug possession that lack (or lacked) the knowing requirement. Currently, there are at least two cases pending in Division II of the court of appeals related to misdemeanor possession convictions where the court has held there should be no distinction between a felony and misdemeanor possession conviction.

While SB 5663, providing a statewide refund process and reporting requirements did not pass, cities received $21.5 million in the supplemental budget to offset the financial impacts of vacating simple drug possession charges tied to the Blake decision. Of the amount appropriated, approximately $10 million is earmarked to reimburse legal and financial obligations tied to the vacated conviction. Additionally, investments related to the Blake decision include $4.9 million for municipal courts to create new therapeutic courts or to expand services provided by existing therapeutic court. Finally, the Administrative Office of the Courts (AOC) received $2.5 million to support community justice counselors and community coordinators that work with municipal and district court drug and therapeutic court programs. This appropriation will support a minimum of four municipal courts, regionally based, and will cover a variety of expenditures including bus passes, transportation assistance, cell phones, phone cards, and translation services.

The Criminal Justice Training Commission received funding to provide for 19.5 Basic Law Enforcement Academy (BLEA) classes in 2022 and 23.5 classes in 2023. These additional classes should address the long wait times for new recruits. The supplemental budget also included funding for an online training app so officers may receive training on their smart phones or laptops. This will allow for more timely training as officers will not need to travel to Burien to receive important updates.