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Washington state just made it easier to prosecute cops for deadly use of force

Prosecutors no longer need to prove a cop acted with intentional malice in order to bring charges.

People march in protest to the fatal police shooting of Charleena Lyles, in Seattle, Washington on June 22, 2017. (CREDIT: JASON REDMOND/AFP/Getty Images)
People march in protest to the fatal police shooting of Charleena Lyles, in Seattle, Washington on June 22, 2017. (CREDIT: JASON REDMOND/AFP/Getty Images)

For 32 years, it’s been almost impossible for prosecutors in Washington state to go after police officers over killings in the line of duty, no matter the circumstances.

But a bill signed Thursday by Gov. Jay Inslee (D) ends a unique provision in state law that has hamstrung accountability for inappropriate uses of deadly force since 1986. Washington was alone in requiring that prosecutors show “evil intent” in order to prove criminal charges tied to police killings. The 1986 law effectively made cops who kill untouchable. A Seattle Times review of 213 fatal encounters with police in the state from 2005 to 2014 found only one where a cop was charged, despite numerous examples of controversial, hard-to-justify killings.

Now, however, prosecutors won’t have to show jurors that a cop acted maliciously in order to prove charges. The bill took months to hammer out, and as recently as January local observers were certain that the initiative would stall in the legislature and end up on the November ballot as a referendum. A deal emerged suddenly on Tuesday, blessed by the state Fraternal Order of Police and other key law enforcement groups.

The new law keeps the state’s “good faith” provisions but modifies and expands them to reflect the same kind of “reasonable officer” standard used in other states for differentiating between justified and criminal uses of deadly force. That still sets a very high bar for convictions in such cases. The “reasonable officer” conceit is both murky and constricting, requiring juries to acquit officers if their actions were consistent with department policy and training. The Oklahoma jury that let Tulsa officer Betty Jo Shelby off the hook for killing Terence Crutcher in 2016 expressed frustration with the “reasonable officer” jury instructions they said forced them into an acquittal vote.

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Unlike the ballot language that would’ve gone to voters in the fall were it not for Thursday’s final-passage vote, the legislature’s version of reform mandates that law enforcement groups will be included in rulemaking deliberations to follow through on the bill’s requirements. Reform groups like De-Escalate Washington will also have a seat at those tables, according to The Stranger.

Lawmakers and police groups had good reason to think the ballot initiative version would have passed if the legislature hadn’t struck a deal. De-Escalate Washington said its polling indicated 75 percent of state residents would have supported the changes.

The push to change the state’s unique malice clause was born out of escalating rage at various recent police killings. Charleena Lyles was killed in her apartment in the summer of 2017. The officers who shot her said she suddenly pulled a knife and lunged for them as they were taking a routine burglary report from her. But because neither man had a body camera equipped that night, Lyles’ community found itself in the uncomfortably familiar position of having to take police officers’ word for it.

Lyles’ death was only the most recent high-profile instance of a police killing that prompted outcry and suspicion. Officers in Tacoma killed a woman named Jacqueline Salyers in 2016, with police and civilian witnesses offering starkly conflicting accounts of how the interaction played out. The year before, officers in Pasco shot and killed Antonio Zambrano-Montes as he threw rocks at them and dared the officers to shoot him. In 2010, Seattle officer Ian Birk shot and killed a man holding a block of wood and a woodcarving knife just seconds after first shouting at him to drop the tool. The shooting was deemed unjustified by state investigators but prosecutors nonetheless declined to bring charges, citing the 1986 statute that made convictions all but impossible.

Still, prosecutors have cautioned that the changes approved this week would not necessarily have meant criminal charges in any of these killings. Thurston Coutny prosecutor Jon Tunheim told The Olympian that “you’re [not] just going to see a lot more officers charged,” but said the change “gives us a few more options.”