Last November, Washington voters overwhelmingly approved Initiative 940, a police accountability measure requiring that investigations of fatal police shootings be “completely independent of the agency whose officer was involved in the use of deadly force.” Investigations of these incidents — 15 so far this year — will now be put to the test. The hope is that the increased accountability and transparency will increase public trust.
Having called for independent investigations of police shootings in the past, I was gratified but not surprised to see voters approve I-940. The vote reflects public desire for greater integrity in investigations of police shootings. There is a perception that police officers lack the objectivity to conduct proper investigations and tend to “protect their own.”
Take the January 2017 shooting of Jeremy Dowell in Lynnwood. It was investigated by Snohomish County’s “Smart Team,” made up of personnel from various police agencies. After the team published its findings justifying the shooting, no fewer than 12 witnesses filed statements contradicting the Smart Team’s report. The Seattle Times also reported on incomplete and misleading aspects of the investigation.
This investigation was technically “outsourced” yet affirms community distrust in investigations by police, of police. Which brings us to the new law.
The independent investigations described in I-940 inform whether there is evidence to support criminal charges against an officer, as well as whether other laws or policies were violated. Crucially, the law leaves it to the Criminal Justice Training Commission (CJTC), a body of 14 members — almost all law enforcement professionals — to determine what constitutes an “independent investigation.”
As CJTC staff convenes this month, they face a formidable challenge in creating criteria that meet the public’s expectations and the needs of the criminal justice system. The CJTC should consider the following principles to uphold the values of impartiality, transparency and expediency that will help ensure that investigations stand up to public scrutiny:
Create flexible options, with clear parameters
Given the complexities of our state’s geographic and demographic diversity, one size won’t fit all. Local officials will benefit from a menu of options for independent investigations. Any solution needs to address timely responses for evidence collection and any other time-sensitive aspects.
Outside Washington, there are models in which medical examiners, lawyers, private investigators and civilian police oversight offices conduct independent investigations. These civilians have expertise in investigations, sometimes through law enforcement experience.
For some rural Washington counties, appointing investigators outside law enforcement may be the only way to achieve independence. A broad view of who can conduct investigations will best serve the diverse needs across the state.
Build credible systems
It will be important for the CJTC to establish criteria to ensure investigators have the level of expertise needed to achieve high-quality, credible investigations. One consideration is whether a central entity — an independent agency, or perhaps “in but not of” the Attorney General’s office — is needed to train independent investigators, and possibly conduct or assist with investigations when requested.
Conquer conflicts of interest
With an emphasis on independence and increasing public confidence, it’s essential to establish criteria that addresses real or perceived conflicts of interest. Ensuring investigations are handled by an entity “completely independent of the agency whose officer was involved in the use of deadly force” is just one part of the test. Beyond that, the investigation must otherwise be independent.
Take, for example the sheriffs in Thurston and Lewis counties. The Thurston County Sheriff has “outsourced” police-involved shooting investigations to a team that includes his twin brother, the Lewis County Sheriff. And the Lewis County Sheriff has “outsourced” investigations to a team that includes his twin brother, the Thurston County Sheriff. While one could argue that the investigatory teams are independent, the players clearly are not, and that should disqualify their involvement in an investigation.
Establishing guidelines for conflicts of interest between agencies and the people within them is critical to achieving impartial investigations.
Look beyond the criminal question
Criminal investigations rarely get at some of the questions most important to the public: What led to this situation, and what can we learn from careful review of underlying policies, tactics, training and supervision. For this reason, it’s important that the CJTC not leave behind the portion of I-940 indicating that independent investigations should also assess compliance with other laws and policies. Clear guidelines for independence when evaluating whether uses of force are within policy will further increase public confidence and offer more comprehensive independent review of shootings.
At a minimum, the CJTC should require that formal agreements between law enforcement agencies and independent investigators specify how the investigation will address whether the use of force is within policy.
Ultimately, how the CJTC envisions achieving independent investigations will determine whether the letter and the intent of Washington’s cutting-edge initiative is fulfilled. A system with options for all jurisdictions, high standards of expertise for investigators, and significant transparency will ultimately increase the quality of investigations and the confidence of the public.
In an earlier version of this Op-Ed, published June 16, 2019, and corrected on June 17, 2019, Jeremy Dowell’s last name was misspelled as McDowell.