Mimesis Law
6 July 2022

Washington State’s Deadly Force Bill Means Basically Nothing

February 20, 2017 (Fault Lines) — The seventh draft of a bill purporting to make it easier to prosecute law enforcement officers for using deadly force is making its way through the Washington State Legislature. Nowhere in the country is prosecuting police officers more restricted, because the Washington State law provides that all an officer need do is claim fear to justify shooting someone. Police accountability activists insist this amounts to complete immunity from prosecution and must change.

To people who follow police shootings all over the country, this doesn’t sound like it’s much different from anywhere else. The police kill someone and claim they were in fear for their life, and soon after, the DA announces no charges will be filed against the officer(s).

The difference, according to well-meaning activists who believe SB 5073 is going to improve police accountability, is the removal of the word “malice,” and an explanation of the words “good faith.”

3) A public officer or peace officer should not be held liable for using deadly force ((without malice and)) with a good faith belief that such act is justifiable pursuant to this section. For purposes of this section, “good faith” is whether a reasonable peace officer, relying on the facts and circumstances known by the officer at the time of the incident, would have used deadly force.

For prosecutors in the state of Washington who are quite loath to turn on the cops they feel are part of their team, the word “malice” has been a great shield, tying their hands with a basically unachievable standard. It’s worked for better than 30 years in that only one cop has been prosecuted for excessive use of deadly force. That cop was acquitted.

In discussing the bill’s intent, the legislature rightly touches on the issues:

(c ) It is critical that changes to our state’s use of deadly force law provide our men and women in uniform the protection they need when responding to our calls for help and keeping our communities safe.

Concurrently, the legislature finds that the law should hold accountable those officers who act beyond what is reasonable in encounters with our citizens, but also account for honest mistakes that are the result of an officer’s need to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving.

The bill also earmarks money for training. It’s the kind of feel-good legislation everyone can get behind and proudly claim something was accomplished. Removal of the malice standard might even put some heat on prosecutors in Washington State. They could be subjected to the possibility of unemployment through the ballot, as seen in 2016 when incumbent prosecutors in a number of states were ousted by candidates promoting police accountability, bail reform, and equitable administration of justice.

However, prosecutors will still be reluctant to go after cops. It goes beyond a simple team mentality. Spend enough time in a courthouse anywhere in the country, and it will become clear that these people don’t just work together; they eat, sleep and play together too. Judges will still be reluctant to hamper prosecutorial leeway during trials of police officers, or to impose harsh sentences if a guilty verdict is arrived at.

Recently, the mistrial in the case of Michael T. Slager, the ex-cop on trial in the shooting death of Walter Scott, also shows how difficult it is to get a jury to convict a police officer. When you have a video of a cop calmly taking out his gun and shooting a man in the back as he runs away, then staging the scene to make it look justified, it’s clear that getting a guilty verdict against a cop can be a high mountain to climb.

Don’t hold your breath waiting for the elimination of a word and an explanation of two other words, courtesy of the legislature, to suddenly create an abundance of police accountability. As for the money earmarked for training, watch the murder of Walter Scott and ask yourself if Slager could have been trained to not be a cold-blooded killer.

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  • David Meyer Lindenberg
    20 February 2017 at 10:16 am - Reply

    What an extremely strange “reform” to a strange law. As written, it says “without malice *and* with a good faith belief”. If it were “or,” the bill might make sense on its face. As it is, the proposed change would seem to reduce the set of circumstances under which cops can be prosecuted for using deadly force.

  • Ahaz
    20 February 2017 at 12:01 pm - Reply

    Agreed…let us not hold our breaths.