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Washington State Joint Legislative Task Force on the Use of Deadly Force in Community Policing Final Report

December 1, 2016
Legislative Task Force on the Use of Deadly Force in Community Policing

Statement from Lisa Daugaard

I was honored to serve on the Joint Legislative Task Force on the Use of Deadly Force in Community Policing, representing the Washington Association of Criminal Defense Lawyers and the Washington Defender Association, as well as my own organization.  Our organizations and their members represent and act on behalf of people who become the focus of law enforcement action, as suspects and defendants.  On some occasions, those include police officers who are investigated for or charged with criminal offenses.

Because officers are sometimes criminal defendants, I was charged to support changes to the threshold for criminal liability for officers only to the extent that those changes would not place officers unfairly in jeopardy of criminal prosecution when they do their best in the performance of their job, even if they later are found to have made mistakes with grave consequences.

I voted in support of the adopted proposal for change to the standard for criminal liability for officers who unlawfully use deadly force, because it makes it possible for the justice system to  hold officers accountable for unreasonable, unlawful uses of deadly force, while not unfairly placing officers in jeopardy of criminal prosecution for reasonable acts.  The adopted proposal balances the goal of improved accountability in extreme cases, with fairness to officers and respect for the fact that they often must make nearly instant decisions under pressure, with incomplete information, and at personal risk.

Why was it important to recommend changes to the criminal liability standard? Because, as it stands today, it is virtually impossible for prosecutors in Washington to pursue charges against officers who unlawfully use deadly force—even when that use of force is clearly negligent.  The current threshold for criminal liability is subjective (depending on whether the officer(s) involved thought they were doing the right thing), and it needs to be objective (whether a reasonable officer would have thought the force was lawful and necessary).  Under current Washington law, officers essentially are immunized from liability for negligent homicide—where they do not intend to unlawfully take a life, but act contrary to the standard of care we are entitled to expect from law enforcement.  Other states permit the prosecution of police officers for negligent homicide, illustrated by the recent indictment of the St. Anthony, Minnesota officer who shot Philando Castile during a routine traffic stop.

Since the Task Force convened, I’ve reflected on why members of the public attach such significance to the failure ever to hold officers criminally liable for wrongful killings.  I believe it has to do with the essence of policing itself.  In police work, officers are holding civilians to account for violations of the law.  If the law does not apply to officers, there is a cloud of hypocrisy that fundamentally damages the legitimacy of the police function.

No one knows better than a public defender that the system of accountability through prosecution and punishment is imperfect, has been over-used and can be abused.  But to entirely exclude a category of people who kill from the process of public accountability through prosecution is to say to their victims that we do not care in the same way as if they had been injured by a civilian.

We heard arguments during the task force’s deliberations that prosecuting a small number of officers in extreme cases cannot be expected to reduce the incidence of deadly force.  While that may be true, that argument misses the reason this issue resonates with many in the general public.  We do not prosecute civilians who kill unlawfully solely in order to prevent or deter future homicides.  We as a society have chosen this—criminal liability—as one mechanism for saying we care that a life was wrongly taken.  We communicate our values and set norms and expectations in part through this public accountability process, however imperfect it may be.

My office works in close partnership with police departments and police officers to develop alternatives to conventional law enforcement strategies for people whose law violations stem from unmet behavioral health or human services needs.  We appreciate the difficulty and complexity of what police officers are called upon to do.  We also have come to understand that genuine partnership with rank and file police officers, respecting their views and perspectives and their crucial role as authors of change, is essential if we are to fundamentally shift police-community dynamics in American society.

I personally worry about the safety of the officers I know and work with and would not support an approach that exposes them to risk of liability unfairly.  Nor would I support a measure that contributes to an atmosphere that divides officers from the community.  The comprehensive recommendations of the Task Force do the opposite.  They acknowledge the need for improved accountability in extreme cases of wrongful use of force; respect officers’ need to feel free from unfair liability; and provide resources and strategies to reduce tension and conflict that can lead to deadly force being used unnecessarily.  It is my sincere hope that these principles will be incorporated into legislation that we can all support.  

Read the Full Task Report