Use of Force by Peace Officers. The United States Constitution, and in particular the Bill of Rights, protects citizens from excessive force by the government. Depending on the custodial status of the person against whom force is being used, the Fourth, Fourteenth, or Eighth Amendment provides the legal standard for determining whether the use of force is permissible. For persons subject to arrest or detained pre-trial, the standards generally require the use of force by an officer to be reasonable under the totality of the circumstances. Whether an officer's actions are reasonable depends upon several factors. This may include, for example, the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the peace officer or others; and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. For persons serving a sentence following a conviction, the standard requires the use of force by a peace officer to be applied without the purpose of maliciously causing harm.
State law does not contain separate standards for use of physical force by law enforcement officers or corrections officers, though it generally authorizes a law enforcement officer to use all necessary means to effect the arrest of a suspect who flees or resists arrest. This authorization is subject to the limitations under the United States Constitution as well as the justifiable homicide standard in the state criminal code. Law enforcement agencies and correctional facilities typically adopt policies on the use of force, including the types of force allowed and when force may be used.
Duty to Render First Aid. Law enforcement officers must provide or facilitate first aid such that it is rendered at the earliest safe opportunity to injured persons at a scene controlled by law enforcement. The Criminal Justice Training Commission (CJTC), in consultation with other entities, maintains guidelines for implementing the duty to render first aid. The guidelines must: have first aid training requirements; address best practices for securing a scene to facilitate the safe, swift, and effective provision of first aid to anyone injured in a scene controlled by law enforcement or as a result of law enforcement action; and assist agencies and law enforcement officers in balancing the many essential duties of officers with the solemn duty to preserve the life of persons with whom officers come into direct contact.
Training. The CJTC provides training and educational programs to law enforcement officers, corrections officers, and other public safety professionals in Washington.
Local law enforcement officers are required to complete basic training through the CJTC. Basic training consists of a 720-hour program covering a wide variety of subjects including, for example, criminal law and procedures, traffic enforcement, emergency vehicle operations, crisis intervention, and defensive tactics. Troopers with the Washington State Patrol (WSP) complete comparable training through an academy operated by the WSP. In addition, all law enforcement officers are required to complete certain advanced and ongoing training, including, for example, violence de-escalation training and crisis intervention training.
Certification and Decertification. The CJTC also certifies and, when necessary, decertifies state and local law enforcement officers. To obtain certification, an applicant is subjected to a background investigation and must meet certain qualifications. The CJTC may deny or revoke certification following notice and a hearing if a person is or becomes unsuitable for certification based on certain findings. Among other bases, the CJTC may revoke a law enforcement officer's certification if he or she has been discharged by a law enforcement agency for disqualifying misconduct.
Intervention and Reporting. Standards for intervention and reporting misconduct are established.
"Excessive force" means force that exceeds the force permitted by law or policy of the witnessing officer's agency. Any identifiable on-duty peace officer who witnesses another peace officer engaging or attempting to engage in the use of excessive force against another person must intervene when in a position to do so to end the use of excessive force or attempted use of excessive force, or to prevent the further use of excessive force. A peace officer must also render aid at the earliest safe opportunity to any person injured as a result of the use of force.
"Wrongdoing" means conduct that is contrary to law or contrary to the policies of the witnessing officer's agency, provided that the conduct is not de minimis or technical in nature. Any identifiable on-duty peace officer who observes any wrongdoing committed by another peace officer, or has a good faith reasonable belief that another peace officer committed wrongdoing, must report such wrongdoing to the officer's supervisor or other supervisory peace officer in accordance with the peace officer's employing agency's policies and procedures for reporting such acts committed by a peace officer.
A law enforcement agency may not discipline or retaliate in any way against a peace officer for intervening to end excessive force in good faith or for reporting wrongdoing in good faith. A law enforcement agency must send notice to the CJTC of any disciplinary decision resulting from a peace officer's failure to intervene or failure to report to determine whether the officer's conduct may be grounds for suspension or revocation of certification.
Policies and Training. The CJTC, in consultation with the WSP, the Washington Association of Sheriffs and Police Chiefs, and organizations representing state and local law enforcement officers must develop a written model policy on the duty to intervene by December 1, 2021. Every state, county, and municipal law enforcement agency must adopt and implement a written duty to intervene policy by June 1, 2022. Agencies may adopt the model policy; however, any policy must, at a minimum, be consistent with the requirements in the bill. The CJTC must incorporate training on the duty to intervene in the basic law enforcement training curriculum by January 31, 2022. Peace officers who completed basic law enforcement training before January 31, 2022, must receive training on the duty to intervene by December 31, 2023.
The general requirements to intervene to stop the use of excessive force and report wrongdoing are modified so as to apply to general authority peace officers (rather than all peace officers under the Mutual Aid Peace Officer Powers Act).
The definitions of "excessive force" and "wrongdoing" are modified. "Excessive force" means force that exceeds the force permitted by law or policy of the witnessing officer's agency (rather than force that exceeds the "degree of" force permitted by law or policy of the witnessing officer's agency). "Wrongdoing" means conduct that is contrary to law or contrary to the policies of the witnessing officer's agency, provided that the conduct is not de minimis or technical in nature (rather than conduct that is harmful or contrary to law; or that is a violation of professional standards or ethical rules; and that is not de minimis or a technical violation). Provides that a peace officer must make a report to a supervisor when he or she witnesses wrongdoing committed by another peace officer (rather when he or she observes wrongdoing committed by another peace officer).
Reports of wrongdoing must be made to the witnessing officer's supervisor or employing agency. The restriction against an agency disciplining or retaliating against a peace officer for intervening or reporting wrongdoing is modified so as to apply when the intervening or reporting peace officer acted in good faith.
Language is added to clarify that the CJTC is the primary entity responsible for developing the model policy on the duty to intervene and must consult with the entities and interest groups specified in the underlying bill. The requirement for existing officers to receive training on the duty to intervene by December 31, 2023, is modified so as to apply to officers who completed basic law enforcement training prior to January 31, 2022.
(In support) There have been multiple known incidents involving excessive force and misconduct where other law enforcement officers stood by and did nothing. This is not acceptable. This bill is about empowering law enforcement officers to be ethical guardians. This bill is about doing the right thing. Officers would be required to intervene when another officer uses excessive force, and officers would also be required to report misconduct. This is particularly important even in circumstances where officers work for different agencies. The protections against retaliation are also significant.
The bill, as written, has been crafted carefully over many months. The definitions are tied to agency policies, which is important for implementation. Some stakeholders have suggested limiting the bill to on-duty officers; however, it is important that officers intervene even when the other officer is off-duty. This would be an assault.
This bill will not fully address systemic racism in law enforcement, but it is an important step in the right direction. It is time to restore trust with the public.
The intent of the bill is laudable. There may be some technical changes, including changes to the definitions, that would help align it with the intent of the sponsor.
(Opposed) None.
(Other) The bill represents a quandary. The state should enact requirements for intervening and reporting wrongdoing—everyone should support this. However, further refinement is needed.
The definition of "excessive force" should be modified. The bill refers to the "degree of" force based on the perception of the witnessing officer. This could create a dilemma where an officer intervenes even when the other officer is doing what they are supposed to do. There are also issues with officers of different agencies being bound by different standards. The definition of "wrongdoing" should also be modified. The bill defines "wrongdoing" as anything that is harmful. This is vague and would be difficult to implement.
The requirement for an officer to intervene when another officer is "attempting to engage" in excessive force is problematic. It is unclear what this means or what officers are expected to do in these situations. The Legislature should carefully review how this bill interrelates to Senate Bill 5051. It is important to have clarity about what is expected of officers.