Changing State Laws to Prevent Police Use of Excessive Force

Locally and nationally concerned citizens ask “What can we do?” in response to police impunity from the use of excessive force. Spurred by the momentum of the Black Lives Matter social justice movement and the shooting of two young unarmed Black males last spring by a White police officer in Olympia, many in our community are struggling to find solutions to this long history of a system of White supremacy and violence against people of color.

Many excellent recommendations exist on how to hold police accountable for their actions. Community oversight committees and police body cameras, for example, are among the more common recommendations. While important, such changes will not necessarily stop police from inflicting violence with impunity on unarmed people—especially when state laws exist that enable this violence to continue.

Use of force

In Washington the use of force is lawful “whenever necessarily used by a public officer in the performance of a legal duty.” Let’s look more closely at the language the state uses.

What does the state mean when an officer is “in the performance of a legal duty”? Was the pursuit and point-blank shooting of two Olympia men “armed” with skateboards part of this officer’s “legal duty”? Was the use of lethal force justified because these two individuals attempted to steal a case of beer? The way in which state law is written, a police officer—along with a county prosecutor—can claim that an officer was simply performing his or her duty to follow up on a suspected property crime.

Use of deadly force

Clearly, the Olympia police officer along with the too-many-to-count cases nationally of police who use deadly force on unarmed individuals understand that they are likely to be protected legally if questioned. In Washington, “the use of deadly force is justifiable… when necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty.” Open to wide interpretations, police officers and prosecutors often use “resistance” by an individual as justification for using lethal force on an unarmed person.

Use of deadly force is justifiable by state law “when a public officer is acting in obedience to the judgment of a competent court.”   As we’ve seen over and over—including the past few centuries—rarely does a case reach a “competent court,” and when it does, police officers are usually exonerated.

This is not so different from other states. Consider a case in Ohio. A few months ago Cleveland police officers used 137 shots to kill two unarmed African Americans sitting in their own car.   In court, they were acquitted for the fatal shootings. The prosecutor in that case who unsuccessfully tried the Cleveland cops compared the police defendants to an “organized crime syndicate” for their lack of cooperation in the case by engaging in the unwritten Blue-Wall-of-Silence.

Washington State law allows deadly use of force when a cop has “probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer.”   What defines “threat of serious physical harm” in the eyes of a police officer who has volunteered for a career in which this threat is part of the job? What degree of harm justifies killing an unarmed civilian?

Ultimately, police “shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable”. An officer’s defense of “a good faith belief that such act is justifiable” is nearly insurmountable to challenge. Here, an officer’s “belief” can be sufficient legal justification.

Coziness of police and prosecutors

Regardless as to whether or not the Olympia police officer is charged with any criminal misconduct, we can pressure our state legislators to change the vagueness of state law language for police use of force. As written, a police officer and a prosecutor can justify police inflicting harm on unarmed people. Police departments investigate themselves or one another and too often become the sole investigators who send their findings to a prosecuting attorney.

To break the cozy relationship between police departments and local prosecutors will be politically challenging. For example, in the Pasco, Washington, killing of an unarmed Latino man in February, the county coroner is not finding support from the local prosecuting attorney to open an inquest to determine if the killing was justifiable. The coroner now is having to seek a venue in another county that he hopes will cooperate with his investigation.

Change the laws

In Washington we can call for more clarity in state laws that, in effect, provide police and prosecutors the green light to use excessive force on unarmed people. New avenues need to be created that are democratic and transparent rather than opaque insider investigations led by the police. Here are three examples of what the legislature could do:

  • Revise state laws to set a high bar on when police would be ever justified in the use of excessive force on unarmed persons;
  • Create a permanent state-level special prosecutor’s office for cases that involve police violence;
  • Make a legal priority independent investigations into any cases where police injure or kill an unarmed person.

These recommendations to state law will not remove the bullet that has paralyzed one of the young Olympia men who was shot last spring nor others in our state who have suffered and died at the hands of police while unarmed. Changing state laws, however, would be an important step toward making police accountable to their communities.

Currently, police departments and prosecutors apply their interpretations of state law absent public involvement. Now is the time to prod our legislature to create use of force laws designed to both protect the public and to do the least harm to unarmed civilians.

Dr. Michael Vavrus lives in Olympia and is a professor at The Evergreen State College. He is the author of Transforming the Multicultural Education of Teachers: Theory, Research, and Practice. For more information about Michael, including his recent commentaries, go to http://www.michaelvavrus.com/