2018 Election Preview: Initiative 940, Washington State

Ballot measure would change law that currently makes it nearly impossible to hold police officers accountable for excessive force

If voters approve Washington’s Initiative 940, Washington would no longer be the only state in the country that requires prosecutors to meet the “malice burden,” a standard so high that it has made it nearly impossible to prosecute police officers for killing civilians. Current law protects officers from being held criminally liable for using deadly force if they act “without malice and with a good faith belief that deadly force is justifiable.” King County Prosecuting Attorney Dan Satterberg, who has complained about how difficult it is to get convictions in police shooting cases, has said the current law provides an “almost perfect defense to a mistaken use of force” and “has kept police officers out of court as defendants.” The Seattle Times compiled data in a special report on the 1986 malice law, finding 213 fatal police shootings in Washington between 2005 and 2014. The lone case in which an officer was criminally charged in the shooting of a driver resulted in a not-guilty verdict. 
Initiative 940 would impose a two-part test to determine if an officer acted in good faith. One part requires proof that a reasonable officer would have used deadly force in the same circumstances. The other asks if the officer “sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.” It would also require independent investigations into all police officers’ use of force that results in serious injury or death. Finally, it would mandate de-escalation and mental health training for all police officers, and create a duty for them to provide first aid.
The initiative is supported by De-Escalate Washington, a coalition of civil rights groups, in addition to certain law enforcement groups and individuals, including King County Sheriff Mitzi Johanknecht and the Black Law Enforcement Association of Washington. Meanwhile, a group that supports local police officers has spent more than $111,000 fighting the initiative. The group laments that the initiative makes police “put greater emphasis on providing medical care to individuals instead of actually doing their job of protecting the community from crime.” They claim it would make communities less safe. Over half of the contributions to that group came from the Seattle Police Officers Guild and other police guilds have contributed significantly to fighting the initiative.

update (Nov. 11): Initiative 940 was adopted on Nov. 6.