The judge said state lawmakers acted improperly when they passed an amendment to Initiative 940 before approving the initiative itself. She ordered that the initiative be put on the November election ballot.
OLYMPIA — The Washington Legislature’s unprecedented maneuver to change the law for police use of deadly force violated the state constitution, a Thurston County Superior Court judge ruled Friday.
Judge Christine Schaller said lawmakers acted improperly in March when they passed an amendment to a use-of-force initiative before actually approving the initiative itself.
She rejected the Legislature’s action and ordered the Washington Secretary of State’s Office to put the initiative, I-940, on the November ballot.
While attorneys for the Legislature immediately appealed the decision, Friday’s ruling was yet another snag in the long-running push to make it easier to prosecute police for a wrongful shooting.
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Washington’s current law is considered the nation’s most restrictive in terms of holding officers legally accountable for unjustified deadly force.
Community advocates and some lawmakers have struggled for years to change the law — without success.
That made last month’s surprise agreement between law-enforcement groups and the community advocates who collected 360,000 signatures to put I-940 before the Legislature all the more striking.
The deal involved passing the initiative, and also passing a compromise bill that made changes to the initiative once it took effect.
But Schaller said the state constitution provides three clear options for initiatives to the Legislature, such as I-940. Lawmakers can approve the initiative as written; not act, and let the measure go to the ballot; or approve an alternative and put both proposals before the voters.
“It was unconstitutional for the Legislature to try and create a fourth option,” Schaller said.
Lawmakers, “enacted I-940 with amendment, which was not one of the things that is permissible under the constitution,” she added later. “Therefore, the Legislature rejected I-940.”
The lawsuit was brought against the state by initiative activist Tim Eyman, who called Schaller’s ruling “better than I’d hoped for.”
Eyman said he thought the judge would allow both I-940 and the compromise bill, HB 3003, to go to the November ballot.
Schaller stressed that her ruling wasn’t a judgment on the merits of the compromise between the community advocates and law-enforcement groups.
“Those are incredibly important things,” she said. “I’m not trying to minimize that in any way.”
After the ruling, Andrè Taylor of I-940 sponsor De-Escalate Washington said the group remains committed to working with law enforcement to enact the compromise legislation.
“We’ve agreed to that, we think it’s the right thing to do,” said Taylor, whose brother, Che Taylor, was fatally shot by Seattle police in February 2016.
If I-940 indeed goes to the November ballot, Taylor predicted that voters will approve it.
Once approved, the Legislature could change the initiative. But under state law, any changes made within two years of an initiative’s passage requires a two-thirds majority vote of lawmakers.
The I-940 compromise was centered on a handful of words in the law that have kept community advocates, law-enforcement groups and others deadlocked.
Currently, a police officer can’t be convicted of using deadly force if he or she acted in “good faith” and “without malice.” Prosecutors say that’s a very high bar because the law describes malice as “evil intent.”
As it was written, I-940 changed the law to a detailed, multipart threshold of “good faith” that considered what a “reasonable officer” might have done under the same circumstances.
But even some supporters of changing the law worried that I-940’s language would be difficult to implement.
The compromise version would remove the word “malice” as it applies to deadly force. And it would set a new “good faith” definition considered more feasible.
Both the initiative and the compromise legislation included additional law-enforcement training.
The deal came together in the final, frenzied days of the 2018 legislative session. It passed both the state House and Senate even as some lawmakers — nearly all of them Republicans — questioned its constitutionality.
Sen. Mike Padden, R-Spokane Valley, who opposed the way the compromise was enacted, intervened in the case on Eyman’s side.
Up until early March, it looked like lawmakers would not act on I-940, which would have placed the measure on the November ballot — and raised the prospect of an emotional and bruising initiative campaign.
Initiatives to the Legislature, if approved, aren’t signed by governors. But Gov. Jay Inslee did have to sign the compromise bill, which he did before lawmakers passed I-940.
On Friday, Inslee spokeswoman Jaime Smith said the governor would work with lawmakers and others to find a resolution.
Legislators “did act in good faith on a compromise,” Smith said, and “obviously thought they had found a solution that would work.”