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In Washington State, It’s Nearly Impossible To Prosecute Police Killings

This fall, however, an initiative goes to voters that would change the law on deadly force by the police, which has led to no officer there being convicted of wrongfully killing someone in the line of duty in more than 30 years.

Berkeley police officers in riot gear line up in front of protesters during a demonstration in Berkeley, California, in 2014.Photo illustration by Anagraph. Photo by Justin Sullivan/Getty Images

On May 23, 2013, Annalesa Thomas warned her son Leonard that she would call the police if he didn’t hand over her 4-year-old grandson Elijah. Hours later, 27 Pierce County police officers, two SWAT trucks and a sniper arrived at their home in Fife, a small town of about 9,000 residents in Washington State near the much larger city of Tacoma. The massive police presence came despite the fact that Leonard was unarmed.

A four-hour standoff ensued: according to the police, Leonard, 30, had snatched the phone from Annalesa when she first tried to call 911 and held Elijah against the child’s will. Annalesa, however, had told the police that she called for help simply because she did not want Elijah be watched by Leonard, who struggled with alcoholism.

Near the end of the standoff, police struck a deal with Leonard in which he would hand over Elijah and the officers would leave. As police raided Leonard’s house, he panicked, grabbing Elijah. Watching the scene unfold, a sniper then fired a .308 caliber round into Leonard’s waist.

Leonard bled out on the floor just inside the home, clinging to Elijah as police pulled his son from his arms. “Don’t hurt my boy,” Leonard told the police. Those were his last words, Annalesa told The Appeal.

“All I expected was police would knock on the door and say, ‘How about you give the little boy to grandma?’” Annalesa said. “I still wonder how? How did we get to that point where Leonard lost his life?”

On July 14, 2017, a jury in federal district court awarded Leonard’s family $15 million in civil damages, one of the largest sums awarded in a civil suit over a police killing in Washington history (after an appeal of the verdict, the Thomas family agreed to settle their wrongful-death and civil-rights lawsuit for $13 million). Elijah Thomas, now 10 years old, told reporters after the verdict that he believed his father was simply “trying to protect me.”

The “Malice” Standard

Despite the verdict and public outrage over Leonard’s death and others wrongfully killed by police, including protests, no officers were criminally charged in the case. But this is not an unusual outcome in Washington, where an officer may not be found criminally liable if he or she acted “without malice” according to state law. The legislation was passed in 1986 by lawmakers who were concerned about insufficient protections for the police after the U.S. Supreme Court ruled in 1985 in Tennessee v. Garner that it was unconstitutional to use deadly force against an unarmed suspect fleeing arrest. But because of the law, no officer in the state has been convicted of wrongfully killing someone in the line of duty in more than 30 years. The sole homicide case against a Washington officer was brought in Snohomish County in 2009 when Everett police Officer Troy Meade shot a suspected drunk driver in the back, killing him. Despite another officer testifying against his colleague’s excessive use of force, a jury acquitted Meade of second-degree murder and first-degree manslaughter.

“It’s difficult to prosecute a police officer, and it should be, but today it’s impossible,” King County Prosecuting Attorney Dan Satterberg told The Appeal. “That’s been the result of our legal analysis in every police shooting we’ve ever had.”

Andrè Taylor, whose brother Che was shot and killed by Seattle police in February 2016, agrees.

“The malice standard is de facto immunity that allows them to kill without restraint,” he told The Appeal. Taylor moved to Washington shortly after his brother’s death to begin an advocacy group, Not This Time!, which focuses on reducing killings by police.  

Efforts to change the law previously languished in the state legislature. But the work of a coalition of activists and family members of those killed by police  has led to a statewide ballot initiative to reform the law. Initiative 940—so named simply because of the number assigned to it by the secretary of state’s office—would remove the 1986 law’s so-called malice standard and replace it with a two-part test for when a “reasonable” officer would use force and whether the officer acted in “good faith” to prevent harm to others.

It would also require independent investigations of such incidents rather than the common practice of internal reviews by police departments. And it mandates that all police receive de-escalation and mental health training, and be prepared to give first aid at the scene if necessary.

Another provision is that tribal governments would have to be notified and involved in investigations when a tribal member is injured or killed by police. Eight of the state’s Native tribes have donated to the campaign to pass the initiative, including $400,000 from the Puyallup Tribe of Indians, according to campaign finance records.

Initiative 940 Goes to Voters

With state lawmakers hoping to avoid a divisive policing issue on the November midterm ballot, legislators and some of the state’s largest law enforcement organizations negotiated amendments to the initiative to pass it as law in March. But the state Supreme Court nullified legislators’ actions in late August in a 5-4 ruling, saying the legislature’s method for approving the initiative and its amendments violated state law. Under the state Constitution, lawmakers would have either had to enact the initiative as it was written into law, or put it on the ballot along with a second, amended option for voters to choose from. Neither option had enough support.

Supporters of the compromise included the Washington State Fraternal Order of Police and the Washington Association of Sheriffs and Police Chiefs, whose executive director, Steve Strachan, issued a statement after the court’s ruling encouraging a “no” vote on I-940. Strachan did not respond to an interview request, but when the Supreme Court made its ruling he said, “I encourage us to focus on our agreements and good policy, and bringing the community together for increased trust.”

Two of the state’s major law enforcement unions, the Washington State Patrol Troopers Association and the Council of Metropolitan Police and Sheriffs, remain opposed to both I-940 and the now-defunct compromise. Neither organization responded to requests for interviews.

The outcome in November could influence other states’ efforts to increase accountability for officers who wrongly use deadly force. Efforts in California to put more restrictions on police to prevent the use of deadly force were suspended in late August, after legislators said they could not muster enough lawmakers to support the bill.

The bill was introduced in March 2017 and passed the state assembly two months later. However, it lay dormant in the state senate until April 2018, following weeks of protests in Sacramento over the police killing of Stephon Clark, an unarmed 22-year-old Black man, while officers were looking for a car vandal.

De-Escalate Washington, a group co-led by Andrè Taylor that is spearheading the campaign to enact I-940, says polling demonstrates that about two-thirds of state voters support its proposal. The organization also obtained 360,000 signatures for I-940 to be certified for the ballot—100,000 more than the minimum required by the state. They have raised more than $1.8 million for the effort, according to state campaign-finance records.

“The coalition of groups in Washington State are stepping up and doing more than we’ve seen in any other state,”  Zeke Johnson, Amnesty International USA’s senior director of programs, told The Appeal. “I think Washington State has an opportunity to be a real leader in reform.”