Preproposal statement of inquiry was filed as WSR 19-06-19 [19-06-019].
Title of Rule and Other Identifying Information: Chapter 139-12 WAC, Law Enforcement Training and Community Safety Act—Independent investigations criteria.
Hearing Location(s): On November 26, 2019, at 10:00 a.m., at 19010 1st Avenue South, Burien, WA 98148, public hearing.
Date of Intended Adoption: December 5, 2019.
Submit Written Comments to: Zola Campbell or Derek Zable, 19010 1st Avenue South, Burien, WA 98148, email firstname.lastname@example.org or email@example.com, by December 4, 2019.
Assistance for Persons with Disabilities: Contact Zola Campbell, phone 206-835-7366, email firstname.lastname@example.org; or Derek Zable, phone 206-835-7356, email email@example.com, by December 3, 2019.
Reasons Supporting Proposal: This proposal is necessary to meet the mandates of RCW cited above.
Statutory Authority for Adoption: Washington state criminal justice training commission is named in the relevant RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state criminal justice training commission, governmental.
Name of Agency Personnel Responsible for Drafting: Sue Rahr, 19010 1st Avenue South, Burien, WA 98148, 206-835-7300; Implementation and Enforcement: Dan Christman, 19010 1st Avenue South, Burien, WA 98148, 206-835-7300.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
There are five factors that are fundamental to enhancing public trust in the integrity of independent investigations involving police use of deadly force:
• Credible process; and
• Credible investigators.
Standards are necessary for the public to assess whether the actions taken by the IIT are independent, transparent, credible, and communicated in a manner that builds public trust.
At a future date, in order to create accountability, it is necessary to establish a process to gather and review data about uses of deadly force, and subsequent investigations, and to report data so the public can determine if the standards for independent investigations are being met and are improving public trust.
(a) Independence is essential to integrity and objectivity of the investigation. Maintaining independence is achieved through compliance with rules and regulations designed to prohibit undue influence, and the appearance of undue influence, by the involved agency in the investigation.
(b) Standards for an investigation completely independent of the involved agency:
• No member of the involved agency may participate in any way in the investigation conducted by the IIT.
• No information about the ongoing independent investigation will be shared with any member of the involved agency, except limited briefings given to the chief or sheriff of the involved agency about the progress of the investigation so that they can manage the internal administrative investigation and communicate with their community about the progress of the investigation.
• If the chief or sheriff of the involved agency requests that the IIT release the body cam video or other investigation information of urgent public interest, the IIT commander should honor the request with the agreement of the prosecutor of jurisdiction.
• No specialized equipment belonging to the involved agency may be used by the independent investigative team unless no reasonable alternative exists, and the equipment is critical to carrying out the independent investigation. If the equipment is used, the nonlaw enforcement community representatives on the IIT must be notified about: 1 - why it needs to be used; and 2 - the steps taken to strictly limit the role of any involved agency personnel in facilitating the use of that equipment.
(a) Transparency is the critical element of procedural justice that allows community members to assess whether the process of the investigation is conducted in a trustworthy manner and complies with the standards for the five listed factors.
(b) Standards for the transparency of an independent investigation:
• The policies and operating procedures of the IIT will be available to the public.
• The names of the members, supervisors, commanders, and nonlaw enforcement community representatives on the IIT will be available to the public.
• A minimum of two nonlaw enforcement community representatives will be assigned to each IIT to participate in the vetting, interviewing, and selection of IIT investigators; review conflict of interest statements; be present at the briefings with the involved agency(s) chief or sheriff; have access to the investigation file when it is completed; review all press releases and communication to the media; and review notification of equipment use of the involved agency.
- The nonlaw enforcement community representatives must sign a binding confidentiality agreement at the beginning of each deadly force investigation that remains in effect until the prosecutor of jurisdiction either declines to file charges or the criminal case is concluded.
- If the confidentiality agreement is violated, the representative may be subject to prosecution under RCW 9A.76.020
(Obstructing a law enforcement officer) and chapter 10.97
RCW, Washington State Criminal Records Privacy Act.
• The commander or other representative of the IIT will provide public updates about the investigation at a minimum of once per week, even if there is no new progress to report.
• When an independent investigation is complete the information will be made available to the public in a manner consistent with applicable state law.
(a) Communication is key to enhancing the public's perception of police legitimacy and fairness. A lack of open communication leads to suspicion and damages trust.
(b) Standards for communication during an independent investigation:
• A family member of the person against whom deadly force has been used will be notified as soon as they can be located by either the involved agency or the IIT, whichever is faster.
• A member of the IIT team will be assigned as a family liaison within the first twenty-four hours and keep the family, or a representative of the family's choice, apprised of all significant developments in the independent investigation and will give the family and the involved agency advance notice of all scheduled press releases.
• Neither the involved agency nor the IIT will provide the media with criminal background information of the person against whom deadly force has been used, unless it is specifically requested, and release of the information is required by the Public Records Act or other applicable laws.
• If the person against whom deadly force is used is, or is believed to be a member of a federally recognized tribe:
- The involved agency will notify the governor's office of Indian affairs (GOIA) in accordance with RCW 10.114.021
- A member of the IIT will be assigned as a tribal liaison within the first twenty-four hours and keep the tribe (or a representative of the tribe's choice) apprised of all significant developments of the investigation.
(a) In order for investigations to be viewed as credible it is critical to demonstrate that the procedures followed are consistent, known to the public, and rooted in best practices for homicide investigations, with particular attention focused on those unique areas of evidence relevant to the officer's decision-making process. Equally important is the credibility of the investigators. Significant requirements are set for the selection of investigators for the IIT. Training, a history of ethical behavior, and demonstrated impartiality are critical to maintain confidence in the investigation.
(b) Standards for a credible independent investigative process:
• After life-saving first aid has been provided, members of the involved agency and other first responders at the scene will:
- Secure the incident scene and maintain its integrity until the independent investigative team arrives.
■ The perimeter should be clearly marked and protected.
■ Evanescent evidence must be located and preserved, consistent with best practices published annually by the criminal justice training commission.
• The independent investigation will follow accepted best practices for homicide investigations published and annually updated each year by the WSCJTC.
• An involved agency conducting a timely internal administrative investigation for compliance with department policy and procedures is critical to maintaining public trust and is separate and distinct from the independent investigation required by the law enforcement training and community safety act. To allow the involved agency to move forward with the administrative investigation in a timely fashion, the independent investigation required by LETCSA must be conducted in a manner that does not inhibit the involved agency from doing so. To accomplish this:
• The IIT commander must create and enforce firewalls, which is a process to prevent information sharing between the IIT from the involved agency, and train all team members to observe them to ensure no member of the IIT receives any compelled statements of the involved officer(s) or any investigative content that was informed by such compelled statements.
• The firewall system and training must ensure that the involved agency is affirmatively advised not to furnish "prohibited content" to the IIT.
• If any member of the IIT receives prohibited information, the investigator receiving the prohibited information must immediately report it to the supervisor and the member. The information will be removed and/or isolated from the remaining investigation unless the prosecutor of jurisdiction deems such action unnecessary.
• These requirements also apply to any "public safety" statements compelled from involved officers.
(c) The standards for credible investigators include:
(i) Appointed Members.
The chiefs and sheriffs who sign a written agreement to support and participate in the IIT shall appoint:
• The IIT leadership team, which includes an IIT commander, assistant or co-commander, and the logistics/administrative commander.
• At least two nonlaw enforcement community representatives who have credibility with and ties to communities impacted by police use of deadly force.
• All IIT leadership shall be commissioned peace officer(s), with previous experience in criminal investigations.
• The IIT supervisors shall be recommended by their agency to the IIT commander.
(ii) Selection Process for IIT Members.
The IIT commander shall make written notification to the member agency's leadership, soliciting personnel from their respective agencies for assignment to IIT.
The IIT leadership shall:
• Ensure all applicants meet all time, rank, and training prerequisites described in chapter xxx WAC.
• Ensure that qualified applicants are interviewed by a review board, which includes the nonlaw enforcement community representative advisor and other members of the IIT selected by the IIT commander.
• All applicants shall be interviewed using criteria pertinent for the position of an IIT investigator. The same questions should be asked of each applicant.
• At the conclusion of the review board the IIT commander shall consider the recommendations of the board and select those best suited for the needs of the IIT.
(iii) Requirements for IIT Investigators.
• Applicants for the position of investigator must be employed by a member agency of the IIT.
• The applicant shall be a commissioned peace officer in the state of Washington with previous experience as a detective or investigator, or have special skills or experience necessary for the team.
• The applicant must have the written recommendation from their immediate supervisor.
• The agency and applicant must commit to three years of service to the IIT (excludes promotion or exigent circumstances).
• The agency and applicant shall commit to ongoing advanced investigative training.
• The agency and applicant must commit to eight hours of semiannual IIT training.
• The applicant must be willing to be on call and reasonably available for call-out.
• The applicant should meet the basic training requirements identified in this chapter.
(iv) Periodic Appointment Review.
The chief or sheriff of a member agency, and the IIT commander shall review the appointment of their IIT members who have served three years for possible rotation or replacement.
(v) Training Requirements.
The CJTC will issue an "IIT qualified investigator certificate" to ensure that those who are entrusted with investigating officer involved use of deadly force incidents meet a basic training requirement listed below prior to joining an IIT. Each of the classes listed below must contain at least forty hours of instruction approved by WSCJTC. To obtain a basic IIT certificate candidates must:
• Provide proof of at least three years of uninterrupted experience as a certified peace officer.
• Provide proof of successful completion of the basic training classes listed in this chapter.
(A) Basic training classes:
• Basic homicide investigation;
• Crime scene investigation;
• Interviewing and interrogation;
• Crime scene photography/videography; and
• Violence de-escalation and mental health.
(B) Advanced training classes.
Advanced training develops and maintains competence, which improves the credibility of the team. The advanced training classes, taken before and/or during appointment to an IIT, are desirable and member agencies should make reasonable efforts to provide this training. A minimum of twenty-four hours of training annually may include, but is not limited to, the following criminal investigation topics:
• Advanced homicide investigation techniques;
• Advanced interviewing and interrogation;
• Officer-involved shooting investigation;
• In-custody death investigation;
• Excited delirium and positional asphyxia;
• Bloodstain pattern analysis; and
• Other related training, seminars, and conferences or on-going training as offered by WSCJTC or other training venues on an as available basis.
(C) In-service training.
• All IIT members shall receive priority registration to LETCSA training as well as recertification every three years.
• The IIT shall train as a unit at least semiannually.
(vi) Demonstrated History of Honorable Behavior.
Investigators assigned to an IIT must have a work history free of sustained serious misconduct and/or a pattern of complaints and a personal history free of demonstrable bias or prejudice against community members that may be impacted by the deadly force incident.
Examples of disqualifying sustained misconduct and/or personal history include, but are not limited to:
• Discrimination of any type, based on protected classes identified by the equal employment opportunity commission.
• Theft, fraud, dishonesty, and abuse of authority including, but not limited to: Theft, falsifying an official police record or making a false statement, ACCESS (a centralized computer enforcement service system) violations, obtaining or disclosing confidential information, and excessive use of force.
• Dishonorable behavior including, but not limited to: Harassment, bullying, aggressive or intimidating behavior, or threats of violence, including domestic violence.
(vii) Conflicts of Interest.
Prior to each independent investigation, investigators must complete a "conflict of interest" assessment tool regarding any connection to the officers being investigated. The assessment (created by WSCJTC) will include questions about the investigator's prior interaction or relationship with officers being investigated, and will address social conflict, work conflict, and bias. The conflict assessment will be reviewed and approved by the nonlaw enforcement community representatives and the IIT commander.