By Andy Hwang, Federal Way Police Chief
In 2021, our state Legislature enacted several bills related to law enforcement. The majority of the police reform bills go into effect on July 25, 2021, affecting how we will deliver police services.
As a law enforcement leader, it is my responsibility to make sure the residents we serve are aware of the level of service the police can provide under the new laws. To get the agency prepared for these changes, the department is providing mandatory training to all commissioned and limited-commissioned personnel, particularly focusing on legislated bills 1054 (police tactics) and 1310 (use of force).
One of the impacts to the Federal Way community is the police tactics bill (HB 1054), which significantly changes the basic requirements of all police pursuits. The enacted new requirements and explicit restrictions will virtually eliminate all police pursuits in Washington state. Moving forward, officers must have “probable cause” to believe that a person in the fleeing vehicle has committed a specified violent crime, which is a very high standard and nearly impossible to meet while responding to a 911 emergency call for help. An officer responding to the scene of a robbery or shooting may see a fleeing suspect vehicle and may have “reasonable suspicion,” but cannot pursue it because probable cause is not usually developed in the initial phase of an incident, which means more suspects will get away.
Another significant change is with the new use of force law (HB 1310). The impact of this reduces police interaction with non-compliant members of the public, which will no doubt have a direct impact to public safety. Under the new law, it requires police to have “probable cause” before using force, as opposed to “reasonable suspicion.” This is completely changing the way police will respond and there will be some calls we will no longer respond to at all.
For example, an officer observes a subject matching the description of a burglary or a shoplifting suspect walking away near the scene of the crime. The officer at that moment in time has “reasonable suspicion,” but is no longer authorized under the new law to use a reasonable amount of force necessary to detain the person if the individual decides to run to escape capture.
In another example, police officers were legally authorized to restrain people suffering from a behavioral health episode, in order to send them to a hospital for help. This was part of our community caretaking function. Under the new law, however, police officers may not restrain the person simply for purposes of involuntary treatment. The new law directs law enforcement officers to “leave the area” when no crime has been committed and there is no imminent threat of harm to the person or someone else. That removes us from many of our caretaking functions.
These are just a couple of endless examples of the unintended consequences of rushing to create the new use of force law that will change the way police respond to crime, community caretaking functions such as welfare checks, and mental health issues.
In regards to drug possession, on Feb. 25, 2021, in State v. Blake the Washington State Supreme Court declared Washington’s felony drug possession statute unconstitutional. In response, the Federal Way City Council created an ordinance making “knowing possession of a controlled substance” a crime; physical arrest was an option. The Washington Legislature then amended state law, pre-empting new local ordinances.
Now people found in possession of illicit drugs must be referred to drug-help resources on two occasions before criminal charges can be brought against them for possession. Dangerous drugs include cocaine, methamphetamine, heroin, fentanyl and others. The third and subsequent violations are citable as misdemeanors. State law encourages prosecutors to send cited cases for deferral. There is no statewide system to track the number of times a person has been given a drug referral, so a person caught twice with illegal drugs in another jurisdiction, for instance, and then caught possessing illegal drugs in Federal Way will receive another two more referrals before they receive a ticket. In the current statute, the shift toward treatment-based approach has little accountability for the offender.
Police chiefs in South King County met several times to discuss the impact of the new laws in our communities and agencies. We participated in panel discussions with the Washington Association of Sheriffs and Police Chiefs. We worked closely with our legal advisors to make sense of the language, including how to define terms such as “possible,” “available” and “appropriate,” which are required but not legally defined within the new laws.
We hope the Legislature will fix what we see as new public safety concerns, especially now when violence is on the rise in our state. Meanwhile, police chiefs met with the Washington Attorney General’s Office. We seek clarification on the contradicting elements of the new laws, some of which I have not addressed here. The Attorney General’s Office will create a model use of force policy by July of next year, but that provides no clarification or guidance this year.
Public safety requires the trust and support of the community, and our law enforcement officers need public support to do their important job. We must get the balance right and thoughtfully ensure that solutions will not make problems worse. We support changes that advance public safety and respect victims and others who need police help who are often forgotten in the dialogue. We need to get this right.
As law enforcement officers, we have sworn an oath to uphold the Constitution and enforce the rule of law. To maintain public trust, we will professionally implement the new laws, provide the necessary training to our staff, and do our best to provide the type of policing that is demanded by our community, insofar as the law allows.
It is an honor for us to serve you!