Washington’s new use of force laws changing training, weapons

By Mike Carter
The Seattle Times

SEATTLE — The two officers roll up on a disturbance at a Burien park to find three men in a scuffle, one swinging a baseball bat. They quickly exit the patrol car, one drawing his firearm, the other a Taser, and approach the men, announcing themselves and commanding the men to stop. It’s a tense moment with a lot of possible outcomes, many of them bad.

It’s also a teaching moment: These particular officers are cadets at the Washington state Criminal Justice Training Center, and the “disturbance in a park” scenario is one of several that tests their nascent policing skills while under the skilled eye of an instructor.

The man with the bat (another cadet, playacting) turns toward the officers, takes a step and “ZAP!” He’s dropped by the make-believe red-plastic Taser. The other officer, handgun still drawn, orders the other two cadet-brawlers to their knees. They grumble, but comply.

Meanwhile, the officer who used the Taser is searching and handcuffing his suspect, then leads him away, leaving his partner to deal with the others, alone. It’s an awkward moment later deconstructed by the instructor, Tacoma Police Department TAC Officer Steve Woodard, who pointed out that it would have been safer to cuff the other two men before the officers separated. He also questioned the need for the cadet to draw his firearm at the outset, when no imminent deadly threat was apparent.

As for the Taser, “You used the force necessary to separate them, you had probable cause,” because the one man had a bat, Woodard told the two cadets, Ryan Rich and Seth Anderson, both with the Vancouver Police Department. “But you need to think about coming up lethal here without a more of a reason.”

At the police academy these days, and in law enforcement agencies across the state, police are rethinking how and when they can use physical force and, mostly, how to avoid using it at all.

“If you have to fight, if you have to shoot, everybody loses,” said Monica Alexander, the newly appointed director of the state’s CJTC in Burien. “What you want to be able to do is talk them into the cuffs.”

Reform-minded changes

A dozen bills containing sweeping police reforms passed the Washington state Legislature this spring. The measures mandate that the state’s law enforcement officers use “reasonable care” when deciding to use physical force and create a higher legal burden for officers to meet before they can use force to detain someone.

Lawmakers are requiring additional de-escalation training for all Washington law-enforcement officers and say departments must equip all officers with less lethal options to their guns.

Another measure streamlined and invigorated the mechanism to take an officer’s badge when they misbehave. Lawmakers also set up a first-ever independent agency within the Attorney General’s Office with the power to independently investigate police shootings statewide.

Police use of force was also affected by the passage of Initiative 940 in 2018 and the implementation of statewide guidelines for deadly force investigations — which also demand police de-escalate — and the Washington Supreme Court’s unanimous endorsement of expanded coroner’s inquiries into law-enforcement-related deaths in populous King County.

When officers do use force, data indicates it’s often used disproportionately against people of color and vulnerable communities: A report recently commissioned and released by the Seattle Police Department — the state’s largest law enforcement agency — found that Black people were seven times more likely to be subjected to force by officers than white people.

In light of the reform efforts, Alexander said police tactical training in Washington is focused on meeting confrontation with “time, distance and cover” — three key ingredients to successful outcomes with minor or no injuries.

And having good outcomes, Alexander believes, is essential to winning back a public trust that’s been battered by too many bad ones, she said. Policing is changing, and officers have to change with it.

“We are teaching to the new statutes,” she said. “And it can be a little scary for some. There are a lot of unanswered questions,” she said.

[RELATED: Washington’s new laws tie the hands of law enforcement officers]

“I know that some cops are feeling a little beat up” following a year of anti-police protests, threats of defunding and exodus of officers, she said, followed by a string of new laws aimed at accountability and reform, and criminal charges filed against officers in the deaths of Manuel Ellis in Tacoma and Jesse Sarey in Auburn — the first in decades.

“They’re saying, ‘We all haven’t been doing it wrong.’ It feels unfair,” Alexander said. “My response is, ‘We’re all responsible for each other’s actions.’ “

“I think of it like Miranda,” Alexander said of the force reforms, referring to the landmark 1966 Supreme Court ruling, Miranda v Arizona, which required police to inform suspects of their protections against self-incrimination and right to legal counsel — now a bedrock of criminal law.

“When that ruling came down, it was, ‘We’ll never solve a case again! We’ll never make an arrest!’ That just wasn’t the case,” she said. “Here, what we’re doing will be safer for the community and safer for law enforcement.”

Fewer options

When time and talking don’t work, the law requires that police use the minimum amount of force necessary to subdue a suspect, often relying on “less lethal” weapons — predominantly pepper spray, Tasers, batons and fists. All have their drawbacks and don’t always work or may not be practical.

While demanding police use minimal force when necessary, some police researchers and tactical experts believe some of the Legislature’s actions — particularly the limits on force options — may have unintended consequences.

The Legislature banned the use of chokeholds and vascular neck restraints, which researchers say a number of police departments have relied on as an effective less lethal option, albeit a controversial one in the wake of the murder of George Floyd in Minneapolis and, locally, the suffocation death of Ellis in Tacoma, where three officers have been charged.

Community outrage over Ellis’s death and pressure from the families of other Washington residents killed by police prompted the Legislature to ban the tactic, which when used properly involves applying pressure to the neck to restrict blood flow to the brain, causing brief unconsciousness and allowing an officer to subdue a resisting suspect.

And, by some readings, a new law that bans police from obtaining military hardware also prohibits them from using 40-mm foam-bullet launchers, which police trainers, researchers and accountability experts say have been among the most effective less lethal weapons in the police arsenal.

This concern is compounded in Seattle, where the City Council last week passed a crowd-control weapons ordinance that provides that only members of the SWAT team can use that device.

Andrew Myerberg, the civilian director of the department’s Office of Police Accountability, which investigates allegations of police excessive force, said he fears taking that tool out of the hands of patrol officers will result in more shootings — not fewer injuries — especially in cases where the suspect is armed with a knife.

“The 40-mm is the best and only standoff weapon we have, where an officer can safely incapacitate an individual from a distances,” Myerberg said. Most incidents when it is needed demand immediate action, he said. Waiting for a SWAT team rollout sometimes just isn’t feasible.

SPD has been looking at other less lethal options as well, and Myerberg is pushing for a pilot program for the “bola-wrap,” a device that launches a weighted cord that wraps itself around a suspect, enabling officers to approach and subdue them.

[RELATED: 5 things to know about the BolaWRAP]

Professor Matthew Hickman, the chairman of the Department of Criminal Justice, Criminology and Forensics at Seattle University, said banning less lethal options without considering their effectiveness “is putting the cart before the horse.”

In a paper published in June in the international Police Practice and Research Journal, Hickman reviewed 230 cases over eight years where Spokane officers used vascular neck restraints to subdue suspects without a fatality.

“Widespread public sentiment against putting arms around people’s necks” doesn’t invalidate the fact that officers in departments that use vascular neck restraints “swear it’s an effective and safe technique,” Hickman said.

However, Leslie Cushman, a civil-rights lawyer and citizen sponsor of I-940 and other police-accountability issues, said there is research showing that neck restraints can cause long-term physical damage, but that the primary reason for banning them is that they are “associated with racialized policing instead of community policing.”

“We have to take violent tactics off the table to stop the harm being done to Black Americans,” Cushman wrote in a fact sheet handed out to lawmakers this past session, justifying the ban on neck restraints and chokeholds.

“Police have demonstrated time and again that they do not exercise restraint or discernment when engaging force tactics, especially against Black and brown people,” Cushman wrote.

Police have other less lethal tactics they can rely on, including de-escalation, Tasers, pepper-spray and batons, she said, that don’t carry the racialized implications of chokeholds.

Hickman, who has researched police use of force patterns and injuries to both officers and citizens in Washington and elsewhere, has found regional differences in types of force used.

For instance, his research has shown that Washington law-enforcement officers rely primarily on Tasers, while California officers are more likely to resort to batons or impact weapons. Of real interest, he said, is Wisconsin, where both officers and suspect injury rates were substantially lower because officers are trained to subdue resistance using martial-arts inspired “low-level physical tactics.”

Brian Higgins, the former chief and one-time SWAT commander of the Bergen County, New Jersey, police, said there is no one perfect less lethal tool, but that officers need options, even if they aren’t popular or understood by the public.

Higgins, a lecturer at the John Jay College of Criminal Justice in New York, said his preference would be the baton, which fell out of favor with departments following the Rodney King beating.

“The fact is, pain equals compliance. That’s what these weapons are for,” he said. “Short-term pain for the suspect equals survival for everyone. A baton strike to an extremity is very effective.”

“But officers don’t want to be the guy on the front page of the newspaper, so we’ve moved away from some of the effective tools, and officers are left relying on their firearm. It’s almost like we’re requiring officers to resort to deadly force,” he said.

NEXT: A letter to the American public: Law enforcement officers cannot read minds 

(c)2021 The Seattle Times

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