Legislation working its way through the state House and Senate might clear up some of the confusion — and resulting crime — created by E2SHB 1310, a bill that was passed in 2021 to limit the use of force by police. The new bill — ESB 5919, was passed by the Senate on Feb. 9 and as of today is under review by the House Public Safety Committee.
E2SHB 1310 was the state Legislature’s response to an outcry against police brutality and several instances in which people died as a result of excessive use of force by police. The bill established new standards for the use of force and police pursuit. Although the legislation was well-meaning, it created confusion about what police can and cannot do, which has led to unintended consequences.
As a result of 1310, crime has increased in Gig Harbor and elsewhere because police feel prohibited in pursuing someone suspected of stealing a vehicle, for example, or detaining someone suspected of shoplifting. Add to that the fact that the pandemic has limited the number of people who can be booked into the Pierce County Jail, and many suspects go free.
Gig Harbor Police Chief Kelly Busey
All this has frustrated Gig Harbor Police Chief Kelly Busey and other law enforcement officials across the state, and has even prompted some citizens to resort to vigilante tactics and take matters into their own hands.
“A few people are reaching their frustration point,” Busey said recently in a phone interview. “Everyone is tired of theft and so are we. But intervening as a citizen, especially while displaying a firearm, is normally not a wise choice.”
When 1310 was put together, use of force was “heavily scrutinized and altered,” Busey said. “And there was no clear definition in the final version of the new law. For example, is it use of force if you escort a suspect by the arm?”
The law also “eliminated our ability to use any level of force in a mental health crisis,” he added. “We can’t even put the person on a gurney.”
It also took away an officer’s ability to forcibly detain anyone with “reasonable” suspicion. They must have probable cause. “So if we see someone fleeing from a store with an armload of merchandise that’s probably stolen, we can say, ‘Stop!’ but we can’t detain them,” he said.
As a result, criminals are fleeing with impunity from all kinds of crime on a daily basis “and we can’t chase them,” Busey said. The biggest confusion is about reasonable suspicion. “We need to be able to detain someone until we can confirm what’s going on.”
The new legislation — Engrossed Senate Bill 5919 — is intended to eliminate the confusion caused by the 2021 law. It provides definitions of the use of physical force and clarifies when a peace officer can use physical force. It amends the standard for reasonable care, and when cops can engage in a vehicular pursuit. Sen. Emily Randall, D-Bremerton, was one of the bill’s original sponsors.
New definitions in 5919 relating to the use of force stipulate that physical force “does not include pat downs, incidental touching, verbal commands or compliant handcuffing.” “Necessary,” under the new definition, means that under the totality of circumstances, a reasonably effective alternative to the use of force does not appear to exist, and that the amount of force used is a reasonable and proportional response to effect the legal purpose intended or to protect against a threat posed to the officer or others.
ESB 5919 also expands the situations in which a police officer can use physical force, including when it’s necessary to protect against criminal conduct where there is probable cause to make an arrest; to effect an arrest; to prevent an escape; to effect an investigative detention; to protect against an imminent threat of injury to the officer, another person or the person against whom force is being used.
The proposed legislation also amends the standard for reasonable care and, among other things, calls for the officer to employ available and appropriate de-escalation tactics prior to using force; to stop the use of force as soon as the necessity for force ends; to use available and appropriate less lethal alternatives before using deadly force and make less lethal alternatives issued to the officer reasonably available for use.
With regard to vehicle pursuits, 5919 lists four factors that must be met, including reasonable suspicion that a person in the vehicle has committed or is committing a violent offense, sex offense, escape offense, driving under the influence, a crime against persons or other criminal offense where the public safety risks of failing to apprehend or identify the person are greater than the safety risks of pursuit. In addition, an officer can pursue a person who poses a public safety risk and when pursuit is necessary to identify or apprehend the person. And the officer must receive authorization to continue the pursuit from a supervising officer and there is supervisory control of the pursuit.
A similar bill, HB 1726, has been under review in the house public safety committee since Jan. 11.
If 5919 is approved by the House, it will go into effect as soon as it’s signed by Gov. Jay Inslee.
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Another issue that will help bring the current crime wave under control is to bring an end to the pandemic.
“Right now, we can’t send anyone to jail because of COVID concerns,” Chief Busey said. “We need to get done with COVID” so criminals can go to jail.
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