Controversial use-of-force legislation has agencies uncertain

New law requires officers have probable cause before making an arrest

PORT ORCHARD — Spurred by a national outcry of the overreach some law enforcement and corrections officers demonstrated in well-publicized cases resulting in the deaths of individuals like Breonna Taylor and George Floyd, new legislation passed by the state Legislature this last session has defined the permissible uses of force public safety officials may use in the course of their work.

The legislation, however, has generated controversy across the state since its passage. Police officers have expressed concern with the bill’s passing that they will no longer be able to respond to mental health calls. Lawmakers say this is a misinterpretation of the use of force law.

Washington State House Bill 1310, which went into effect July 25, was introduced in January. In part, the bill “limits the use of deadly force to very narrow circumstances where there is an imminent threat of serious physical injury or death.”

Port Orchard Police Chief Matt Brown issued a response on July 26 with his concerns about this and other legislation. Of HB 1310, Brown said: “The primary challenge of this new law is that despite the uncertainty that police face, a use of force is only authorized in four narrow circumstances.”

Interpreting how this will affect law enforcement’s responses in Port Orchard, Brown said, “Unless a crime has occurred, EMS [emergency medical] staff will now need to take primary responsibility for these non-criminal activity-related calls. In other words, assisting the fire department in restraining a combative person during a mental health crisis is no longer legal.”

This reaction and concern mirror what other departments across the state have expressed. But according to the Washington Coalition for Police Accountability and the ACLU of Washington, it’s misguided.

“There’s nothing in the law that prohibit or prevent police from showing up to any call,” said Enoka Herat, police practices and immigration counsel with the ACLU of Washington. Rep. Roger Goodman, 45th District Democrat, echoed this sentiment.

Rep. Michelle Caldier, 26th District Republican from Port Orchard, was one of the lawmakers who opposed the bill. Caldier said firefighters and law enforcement officials told her they were concerned that HB 1310 and another piece of legislation, HB 1054, would limit their ability to respond to calls. Caldier feels the legislation that was passed is poor policy that didn’t take into account the opinions of all stakeholders.

In a July 22 news release from WCPA and the ACLU, those organizations stated that the concern from law enforcement that HB 1310 prohibits them from responding when someone is experiencing a behavioral health crisis is an incorrect interpretation of the law.

According to the release, “HB 1310 established requirements for when and how an officer may use physical force and when they may use deadly force. It emphasizes de-escalation over confrontation and requires officers to use reasonable care when engaging with members of the public.”

Herat summarized the practical application of the bill: “It’s a use-of-force bill. So it doesn’t even really kick in until there’s someone in front of you.”

The bill, the release stated, “removes the existing authority for officers to use any amount of force necessary to make an arrest, and replaces it with a reasonable care standard, requiring officers to de-escalate, use less-lethal alternatives when possible, and use only the minimum amount of force necessary.”

Goodman clarified that most of the police agencies he has spoken to in the area he represents understand the legislation’s intent and support it, and are continuing to respond to calls.

Sgt. Ken Dickinson, Kitsap County Sheriff’s Office public information officer, said his agency has not made the decision to decline to respond to certain calls.

When responding to an emergency, Dickinson said the sheriff’s office’s philosophy is to use only the reasonable and necessary amount of force to ensure the safety of officers and the public, and to make an arrest if necessary. The biggest change the legislation has made is that officers are now required to establish probable cause before using force, Dickinson said.

That change is an important one, as there have been incidents in Washington state where officers have harmed or killed individuals, particularly members of the Black, Brown and Indigenous communities, who were not committing a crime, Herat said.

“I don’t know why other agencies have decided to [not respond.] What we’re going to have to do is we’re going to have to… adjust to how we have responded to situations in the past,” Dickinson said.

Some agencies affected by this legislation say they are uncertain how the legislation affects their ability to respond to mental health calls. That’s particularly so in instances where individuals are not presenting an imminent danger to themselves or others but a mental health professional has determined they need to be detained.

Currently, Port Orchard police officers receive assistance from Kitsap Mental Health-designated crisis responders on some behavioral health calls, Brown said, but because these responders do not work around the clock, there is not a constant mental health response from professionals. With the legislation now law, police are looking for clarity in how to help detain someone dealing with a mental health crisis without violating the use-of-force protocol.

Goodman said state legislators are currently consulting with the attorney general’s office on whether there needs to be further clarification on this.

Washington state has an involuntary treatment act, E3SHB 1713, which states that police may assist mental health professionals in transporting individuals who they have determined need to be taken to a secure facility for evaluation. This bill was not amended and is still valid legislation, Goodman said. He said perhaps state legislators will further clarify the response confusion by making explicit reference to this in the legislation, but not amend their intent behind the bill.

“The reason that these laws were put into place in the first place was because of the high rates of police violence in Washington state and across the country,” Herat said.

On behalf of the Kitsap ERACE Coalition, Karen Akuyea Vargas and Peggi Erickson wrote an open letter on March 25 in response to now retired Kitsap Sheriff Gary Simpson’s opposition to the George Floyd Justice in Policing Act. In the letter, it states “Legislation is key to ending the use of excessive force by police, which has disproportionately harmed People of Color. We’ve seen numerous examples of excessive force used by police here in Kitsap County, in Washington State, and across the country.”

“The level of police use of force, particularly against Black, Brown and Indigenous people, it was unacceptable,” Herat said, “And so that demanded change, and 1310 is a change.”

In a statement issued July 23 from Rep. Jesse Johnson, D-Federal Way, and Goodman, they wrote: “The level of excessive force used by some police officers, especially in Black and Brown communities, is unacceptable. Washingtonians have demanded action, and HB 1310 aims to transform how police show up in our communities. The vast majority of officers are already abiding by the standards codified in this new law. HB 1310 holds all officers to that same high standard of conduct.”

The new legislation requires officers to have probable cause to arrest someone, not just reasonable suspicion, which officers may have used to detain people in the past, Dickinson said. He said it will mean a culture change for the agency.

“That doesn’t mean that we’re not going to respond to certain calls,” Dickinson said, “It just means that we may have to respond to them a little differently than we have in the past.”

It’s going to involve a learning curve for all of those responding to emergency calls, particularly behavioral health calls, particularly those in which there is a desire for mental health or medical help and not police intervention, Dickinson said. With those behavioral health calls, how officers respond to the scene could take a different form as they work alongside fire and mental health professionals.

With this legislation, Herat said city and county agencies should define who is the best responder for a variety of emergency calls. She said those agencies should consider taking a more holistic approach to crises. Herat said she once heard a police officer say that if someone calls 911 because they’re in crisis, the system has already failed them. That’s why the layers of social services provided by local, county and state government for housing, healthcare, education and mental health, she said, are so crucial in mitigating those crises.

“We have over-relied on law enforcement to address issues of houselessness, of addiction, of mental health care. And now is the time to step back from that and … get the best responder for each call,” Herat said.

While Caldier voted against HB 1310, she did acknowledge the need for legislation and supports the use of mental health professionals in responding to certain emergencies in tandem with law enforcement.

The law went into effect on July 25 — a little over a week ago — but Herat said she thinks the bill is already working.

“We have seen a number of incidents where law enforcement explains that because of the law, they are spending more time de-escalating the situation rather than putting their hands on someone,” Herat said.

Herat also said data this year indicates there has been a decrease in the number of deaths at the hands of police. Herat pointed to the Washington Post database of police shootings, which shows six shootings in 2021 in this state compared to 32, 36 and 22 in 2020, 2019 and 2018, respectively. The database only documents shootings by police and not other deaths in which an officer was involved.