The Washington Criminal Justice Training Commission, after a year’s worth of bitter and contentious public hearings, is poised to debate and adopt rules to bring about sweeping changes to how police statewide will investigate instances when officers use deadly force. However, some sponsors and supporters of the ballot initiative — many of whom have lost family to police violence — remain skeptical that the changes will really change anything at all.
Fred Thomas, whose 30-year-old son, Leonard, was shot and killed by a Lakewood police sniper in 2013, acknowledged a lot of hard work, cooperation and goodwill has gone into crafting the rules, but in the end what he sees as the fundamental flaw in the law remains unchanged: Police will continue to investigate police. While the proposed new rules strain to make the process as independent as possible, Thomas believes that conflict is insurmountable.
“Training and rules aside, the officers who want to shoot will shoot and keep shooting,” said the 63-year-old Thomas, a retired U.S. Postal Service employee whose family was awarded $15.3 million by a federal jury two years ago after suing Lakewood police and its chief over Leonard Thomas’ death — one of the largest police wrongful-death verdicts in the state’s history. “The problem is that the ones who don’t shoot are willing to lie, cheat and steal to protect the ones who do.”
Thomas has been active in De-Escalate Washington, the citizen’s group that pushed the changes onto the ballot as Initiative 940. It passed with nearly 60 percent of the vote in November 2018.
None of this is to say that Thomas and others involved in passage of the initiative are giving up or don’t believe progress has been made in mending relationships between law enforcement and the communities disproportionately impacted by police use of force — people with mental illness, people of color and social minorities. Virtually everyone involved agrees that a sweeping new training regimen focusing on de-escalation adopted in June will, over time, save lives.
However, the impact of the other half of the law, which removed barriers that have made it virtually impossible in Washington to hold a police officer criminally liable for a shooting, and sets up a mechanism for “independent” investigations of police shootings, isn’t as predictable. Commission Executive Director Sue Rahr says the law goes about as far as the state constitution, the Legislature and state law enforcement officials could allow. Fred Thomas and some other supporters of I-940 think it doesn’t go nearly far enough.
The criminal justice training commission will present the proposed criteria for independent investigations at a public hearing Tuesday at its headquarters in Burien. A final vote is scheduled for its Dec. 5 meeting.
The proposed rules drastically change how police respond to and investigate officer-involved uses of deadly force, setting up between 12 and 15 regional Independent Investigative Teams (IIT) composed of detectives from surrounding agencies. The team would respond to a deadly force incident and take over the scene from the agency involved, which would be excluded from the investigation. Rahr made it clear that these are criminal investigations and completely separate from any internal review the department might conduct.
Similar teams are already being deployed in some parts of the state — Snohomish County’s “SMART” team (Snohomish Multiple Agency Response Team) is one example. However, the new laws implement them statewide with a stringent set of guidelines the state hopes will instill independence, transparency, communications and a thorough investigative process conducted by credible investigators. In a sharp departure from standard investigative protocols, the teams are to include two non-law-enforcement community members.
The hope, Rahr said, is that the civilians will lend transparency and legitimacy to the investigations.
However, the exact role the community members might play on the teams, the amount of access they will be given to the crime scene and ongoing investigations, and who will chose them all remain unresolved, Rahr acknowledged.
The new rules also set specific criteria for detectives assigned to the investigative teams. They must be recommended by a commander and pass stringent homicide investigation training requirements. Moreover, in a nod to community concerns, Rahr said the proposed rules require that the detectives have a “history of honorable behavior,” be free of sustained serious misconduct, and have “a personal history free of demonstrable bias or prejudice against community members that may be impacted by the deadly force incident.”
De-Escalate Washington earlier this month sent a letter to the commission suggesting that candidates for the IITs also be screened for ties to white nationalism, amid continuing concern about hate movements’ presence in law enforcement.
Finally, the team’s detectives will be required to declare any potential conflict of interest in each case — particularly whether they know or have worked with the officer involved or have any “social conflict, work conflict or bias.” The rules require that reviewing and approving those conflict reports will be a responsibility of the civilian team members, Rahr said, in a further attempt to lend legitimacy to the investigation.
Leslie Cushman, of Olympia, one of the citizen sponsors of I-940, said the role and standing of the civilian team members is a priority. In her mind, they cannot be chosen by law enforcement, which is one of the proposals on the table. “If that happens, it’s out the window,” she said.
Still, Cushman’s overall assessment of the proposed rules isn’t as dark as Fred Thomas’ view. While she’d rather not have police investigating police, she said that if it’s going to happen, “then they have to be ethical. They have to be stand-up people.”
“We could only do so much,” Cushman added. “Police culture is pretty hard to change.”
There are some potential impediments to a truly independent investigation that simply can’t be overcome by rule or law. The state constitution gives final charging authority to the county prosecutor, and the law does not address the sometimes cozy relationship between police and prosecutors. Some stakeholders had suggested the state Attorney General’s Office conduct the investigations, but Attorney General Bob Ferguson has said his office has neither the authority nor the resources to do that work.
However, many other major changes under I-940 are already underway: One key result of the law was the removal of so-called “evil intent” language from the statutes that govern when police in Washington can use deadly force, requiring evidence of “malice” before an officer could be charged for killing someone — a legal standard prosecutors say is almost impossible to reach. A 2015 Seattle Times investigation into 213 fatal police encounters over 10 years revealed only a single officer had ever been charged in those cases, and he was acquitted.
Last June, the commission adopted new training rules that require cadets entering the academy after Dec. 7 to undergo 200 hours of violence de-escalation and mental health training before graduation. The new curriculum also requires extensive first-aid training to comply with another portion of I-940 demanding that police provide emergency aid to people injured in confrontations with officers. The training will be extended to “incumbent” police officers currently employed in the state, although the rules set a 2028 deadline for completing the training.
Officers and cadets will be tutored on the “historical intersection of race and policing,” including the institution of slavery, the passage of the Civil Rights Act and the impacts of mass incarceration. The curriculum includes articles by such authors as African American journalist Ta’Nehisi Coates, who has written extensively on racism and white privilege.
“I can tell you some eyes have been opened this past year,” said Rahr, a former King County sheriff who has spearheaded the rule-making process and is helping develop and implement the training curriculum. Drafting and adopting the training rules was “pretty contentious,” she said, but paled in comparison to the more recent hearings over developing a statewide mechanism for the independent investigations of police shootings. That process, Rahr said, was “hostile.”
The commission and a group of statutorily identified stakeholders — including representatives from various communities and the families of people killed by police — began talking in June, and the commission began a string of public hearings around the state. In September, the commission presented its first “working draft” of the independent investigation criteria.
“It was a disaster,” Rahr recalled. “We had to go back to the drawing board.”
The public hearings made it clear to Rahr that law enforcement was defensive about the need for the changes and that the communities that drove the initiative were angry and distrustful. In a presentation Rahr will make at Tuesday’s commission meeting, she says the sides were locked into “polarized perspectives:” Law enforcement argued that “there was a war on cops making the job more deadly than ever.” The communities and stakeholders argued that there was an “epidemic of police unnecessarily using deadly force.”
Each side saw the other’s arguments as a “false narrative.” What Rahr did was present both sides with facts: Police kill about 1,100 people a year in nearly 67 million public interactions, Rahr said, making the use of deadly force statistically rare. She said people are killed in roughly one out of every 61,000 police/public interactions.
To law enforcement, she pointed out that line-of-duty deaths are even more rare. Of those 67 million police/public interactions, last year 158 officers died in the line of duty — a rate of about .000002%, she said.
But Rahr said facts don’t always resolve emotional issues nor do they change perceptions. Trust among the stakeholders and the commission wasn’t gained until the commission stopped trying to “educate” the public about what they could and couldn’t do, and started listening, she said.
“Once we understood that, we learned a lot,” Rahr said. “A lot of listening and acknowledgment had to happen before we could begin the process of compromise.”
Both Rahr and Cushman envision taking some of these issues back to the Legislature. Rahr would like to see the state gather data on all officer-involved uses of deadly force for analysis and, eventually, create a mechanism for audits of the IIT investigations to ensure the protocols are being followed.
Cushman, Fred Thomas and other stakeholders agree that progress has been made and both intend to stay engaged, regardless of their frustrations and their perceived imperfections with the law. “We are going to stay at the table,” Cushman said.
“No question, the relationships that have been built through the process are the most important part,” Rahr said.