Sue Lani Madsen: Trust gap hinders police reform

A dozen new laws revising and extending existing RCW’s (Revised Code of Washington) were intended to address a lack of trust between some community members and the officers hired to serve and protect them. For those who see all institutions as systemically racist, the solution to fear was to legislatively limit officers’ discretion and increase officers’ liability.

From a law enforcement point of view as expressed by the Washington Association of Sheriffs and Police Chiefs in their July 31 newsletter, the resulting laws had significant gray areas. Officers are now to be held to a standard of care set by state-approved policies yet to be written, based on guidance and clarifications from the attorney general not expected until 2022. It feels like a set-up to fail.

There is a lack of trust on both sides. And you can’t legislate trust.

At a presentation Friday to the Spokane Business & Commercial Property Council, Sen. Andy Billig, D-Spokane, described the overall goal as adding transparency and accountability, continuing to build trust between public and police, reduce the use of force and keep both public and law enforcement officers as safe as possible. “It’s a lot of change all at once,” Billig said. He pointed to the overwhelming voter support for Spokane’s police ombudsman to provide local accountability. Billig emphasized his respect for the vital work of the police and will continue to press for clarifications from the attorney general.

Sheriff Ozzie Knezovich’s presentation at the same meeting described the frustration from many law enforcement agencies with the lack of clarity on the new standards. “People think de-escalation is something new. Been part of our training for 32 years … the definition of a successful operation is no one gets hurt – not the suspect, the community or us. De-escalation happens all the time.”

Even HB 1310’s sponsor, Rep. Jesse Johnson, D–Federal Way, admitted the “vast majority of officers are already abiding by the standards codified in this new law” in his July 23 statement on implementation. So what’s the problem?

Legal interpretations on the new laws differ, nothing is ever final until it’s been litigated and no certified police officer wants to find themselves selected by a camera-wielding bystander to be the test case.

Both Billig and Knezovich acknowledged more officers will be required to establish probable cause, a specific legal standard higher than the “reasonable suspicion” standard that has been used to detain someone for questioning until a situation has been sorted out.

Sometimes this may take just a few minutes of conversation once an officer arrives on scene, but it has already resulted in at least one resource-intensive manhunt in Spokane, when a reasonably suspicious suspect fled before probable cause could be established.

With an already inadequate workforce spread thinner plus cautious advice from counsel, many agencies have pulled back response to community service calls like mental health or welfare checks. And to be fair, the lawyers advising them are just doing their jobs, giving their law enforcement clients advice on the best practices to reduce exposure to liability.

An Aug. 2 memo from the office of the attorney general sought to clarify, concluding “HB 1310 does not prohibit peace officers from responding to community caretaking calls, including mental health calls.”

The problem is the disclaimer at the bottom of the memo. “This is not a formal opinion of the attorney general.” And we’re back to the trust issue.

HB 1310 in its statement of intent says the goal is to eliminate “excessive force and discriminatory policing by establishing a requirement for (peace officers) to act with reasonable care when carrying out their duties.” Reasonable people may disagree over what “reasonable” means.

The fear is that merely grasping an elbow to direct a disoriented person in a mental health crisis could later be used as the basis of a complaint not to a local ombudsman but to a state-appointed five-member panel with two actively certified law enforcement officers and three members of the public with an interest in police accountability. The panel would have authority to pull certification from any officer and end their career. Unsurprisingly, officers have a low level of trust in a lopsided panel deliberately disconnected from their community.

No other profession tasked with protecting the public’s health, safety and welfare would stand for this kind of accountability. Appointed licensing boards in nursing, architecture, engineering and other critical professions have a majority of practitioners with one or two public members.

Steve Strachan, WASPC executive director, responded by email to a request for comment. While WASPC is “pleased to see the Attorney General’s Office agree with our interpretation” that agencies can continue to respond to community caretaking calls, he emphasized “neither WASPC nor the Attorney General’s Office provides legal advice to local law enforcement agencies. Each department has its own legal counsel.”

And he pointed out the question goes beyond responding to the call. “Simply showing up to the scene of a call provides little consolation if the officer is not able to take actions necessary to address the problem … comments, statements of good intentions, and interpretations by advocates, legislators, or others have no legal effect on what the law says or how agencies must abide by it.”

Until the Legislature reconvenes in January, law enforcement and the fire and EMS personnel who rely on them for de-escalation and backup will be gingerly trying to balance their duties to care for the public and protect their own safety.

As one first responder frustrated at the pullback from law enforcement recently said, “Who the hell thought this was a good idea?”

Contact Sue Lani Madsen at rulingpen@gmail.com.