Police Accountability Is on the Agenda in the Upcoming Legislative Session

by Paul Kiefer

(This article originally appeared in PubliCola and has been reprinted under an agreement.)

On December 24, Washington State Reps. Debra Entenman (D-47) and Jesse Johnson (D-20) filed legislationthat would set statewide restrictionson law enforcement tactics, including bans on chokeholds, tear gas and the use of unleashed police dogs for arrests. Less than a week later, state senators Manka Dhingra (D-45) and Jaime Pedersen (D-43) filed a related billthat would expand the jurisdiction of the state's Criminal Justice Training Commission (CJTC), a group appointed by the governor that has the power to certify and decertify law enforcement officers — to give or revoke their license to work as a law enforcement officer in the state.

In the upcoming state legislative session, another half-dozen members of the house and senate Democratic caucuses plan to add their own bills to the pile of state-level reform proposals that, if passed, could dramatically reshape the role of the state government in law enforcement accountability.

The Dhingra-Pedersen bill is the key to many of the proposed reforms. Under current state law, the CJTC has to wait until a law enforcement agency fires an officer before considering whether to decertify that officer, which allows officers facing misconduct charges to move to new jurisdictions before they can be fired. The proposed legislation would expand the commission's powers, allowing it to decertify law enforcement officers at its own discretion, including officers who retire or resign in lieu of termination.

The bill would also require law enforcement agencies to report any serious use-of-force incidents to the commission, as well as any preliminary misconduct allegations or criminal charges of which their officers are found guilty. The commission would use that information to identify officers whose misconduct is bad enough to merit decertification.

While the Washington Association of Sheriffs and Police Chiefs, the group representing the state's law enforcement leadership, has not publicly opposed the expansion of the CJTC's power, Pedersen told PubliCola that some in police leadership have argued that the proposal stifles their voice in police discipline. But Pedersen added that expanding the power of the CJTC might help break down some barriers to accountability posed by local police unions. "One of the big problems in the current system is that almost all policy enforcement happens on a local level, and therefore is subject to the collective bargaining process and the arbitration process," he said. "But tactical restrictions, a duty to intervene or report excessive force—those things become meaningful when you have a way to enforce a statewide standard."

The bill would also reduce those sheriffs' and police chiefs' roles in the CJTC itself, by increasing the number of commission seats reserved for community members from 2 to 5, while decreasing the number of seats reserved for law enforcement representatives from 10 to 6.

The police tactics legislation filed by Entenman and Johnson would create a new set of statewide standards that the CJTC could enforce. Three of the eight tactical and equipment restrictions included in the bill are already part of the Seattle Police Department's manual — bans on neck restraints; firing at moving vehicles; and intentionally concealing a badge. But those policies have not spread to many other departments statewide, so the legislation would hold those departments to the same standards as SPD.

While some of the proposed restrictions, such as a ban on "hot pursuits" in police vehicles, could stir up resistance from SPD, the inclusion of a ban on tear gas could also place the department in a legal bind. In July, Judge James Robart, the federal district court judge who oversees police reform in Seattle for the Department of Justice in an arrangement called a consent decree, ruled that Seattle couldn't forbid officers from using tear gas during protest response; if Entenman and Johnson's bill is successful, Seattle could face a choice between following state law and following orders from a federal judge.

A similar problem also appears in another bill Johnson plans to introduce that would require local governments to set up community accountability boards to oversee all law enforcement agencies with 10 or more officers by 2025. Law enforcement agencies would have to report any serious use of force to the civilian boards within 60 days, and the boards would submit reports about the incidents to the CJTC. Crucially, the bill would exclude law enforcement officers, their family members, and anyone contracting with a law enforcement agency from serving on the new oversight boards. Seattle's Community Police Commission (CPC), created as part of the federal consent decree in 2012, includes police representatives by design.

Johnson said his bill does not include an exception for Seattle's CPC, nor for Tacoma's Police Advisory Committee. "Our standards would be more restrictive," he said, "and the expectation is that those cities would have to come into compliance with the new state law." PubliCola has reached out to Monisha Harrell, part of the team that monitor's Seattle's compliance with the consent decree, to ask about the consequences of removing police from the CPC.

The CJTC isn't the only state agency whose role in police accountability could be expanded by the legislature this year. Senator Joe Nguyen (D-34) is preparing to introduce a bill to give the state's Public Employment Relations Commission (PERC) the power to choose arbitrators to resolve police disciplinary disputes. Currently, when an SPD officer appeals a disciplinary decision, their union and the city try to agree on an arbitrator to make a final decision about the consequences the officer should face.

Nguyen said that the primary goal of the legislation is to streamline the arbitration process, but it would also reduce the input of police unions in disciplinary decisions. "At the moment, the process takes a long time because police departments want one specific person as an arbitrator. If that person isn't available, then the process doesn't start," he said. Instead, Nguyen's bill would require PERC to appoint an arbitrator from a rotating group of 12 attorneys trained in law enforcement discipline and racial equity.

Similarly, Dhingra is preparing legislation to give the state auditor's office the power to review investigations and prosecutions of officers who use deadly force, and Entenman is drafting a bill that would empower the attorney general's office to independently investigate the use of deadly force by police.

Other proposed police reform bills would address barriers to civil suits against police officers for their use of deadly force. One of these bills, sponsored by Senator David Frockt (D-46), would repeal a 1984 state law known as the "felony bar" that prohibits civil suits against police officers by anyone committing a felony during their encounter with law enforcement.

Gabe Galanda, a Seattle-based attorney who helped shape Frockt's bill, said the defense attorneys regularly use the felony bar to prevent the families of police shooting victims from suing police officers. "When someone is having a mental health crisis and police shoot and kill them," he said, "under the felony bar law, the [victim] is posthumously deemed to have committed a felony under the statute without ever having been found guilty by a jury. It's fundamentally unfair."

Galanda, who specializes in tribal law, said that the families of Cecil Lacey Jr. and Renee Davis — members of the Tulalip and Muckleshoot tribes killed by police in 2015 and 2016, respectively — brought the law to his attention earlier this years. Washington tribes are among the most vocal lobbyists for the bill: in addition to the families of Lacey and Davis, the Muckleshoot tribal government has also pushed to repeal the felony bar, as has the Suquamish tribe.

House and senate Democrats expect to introduce at least 13 police accountability and reform bills during the upcoming legislative session, which begins on January 11.

Paul Kiefer is a journalist, historian, and born-and-bred Seattleite. He has published work with KUOW, North Carolina Public Radio, and The Progressive magazine, and he is currently working on a podcast for KUAF in Fayetteville, Arkansas. He was recently hired on as the police accountability reporter for PubliCola.

📸 Featured Image: The Washington State Capitol Building located in Olympia, Washington. Image by Pastajosh, used here under a CC BY-SA 4.0 license.