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New enforcement laws cause confusion and frustration

Recently enacted laws are limiting law enforcement’s ability to properly respond to emergencies, according to San Juan County Sheriff Ron Krebs.

“These laws are aimed at enhancing accountability, training, and transparency among law enforcement, however, what these new laws will do is significantly affect our ability to detect and prevent crime and apprehend those who have committed criminal acts,” Krebs wrote in a press release the day the laws went into effect. “While we embrace change and are always working towards providing better community-oriented service, these laws will change the way law enforcement looks statewide as well as in San Juan County. “

A collection of a dozen laws designed to reform Washington state police departments and to protect its citizens was signed by Gov. Jay Inslee in March and went into effect at 12:01 a.m. on July 26. While some of the laws will ultimately not have much effect on the way the San Juan County Sheriff’s Office operates, one of them is likely to cause problems locally — HB 1310 — which relates to the use of force by law enforcement.

“For persons subject to arrest or detained pretrial, the use of force by a peace officer must be reasonable under the totality of the circumstances,” the bill sponsors stated in the final bill report. “Whether an officer’s actions are considered reasonable depends on several factors. This may include, for example, the severity of the crime, the threat to the safety of the peace officer or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.”

According to the bill, “A peace officer may use physical force against another person when necessary to: protect against criminal conduct where there is probable cause to make an arrest; effect an arrest; prevent and escape; or protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.”

The term “physical force” isn’t clearly defined in the new laws, and has been interpreted by some to include force as minor as handcuffing someone, according to the Seattle Times. Attorney General Bob Ferguson has until July 2022 to create a policy regarding what constitutes “force,” until then agencies have been consulting with lawyers to interpret the law.

“If officers show up at a burglary scene, for example, and they see someone partially matching the description of the suspect — but don’t have confirmation it’s the same person — they can ask that person to stop voluntarily,” Seattle Times reporter Gene Johnson explained in a July 31 article. “If the person leaves, officers can’t use force to detain them while figuring out if they have the right suspect, they say. An arrest would have to come later, once probable cause is established.”

On July 28, Pierce County Sheriff’s Department chose to not use its K9 officer to track a murder suspect citing the new law.

“State law does not contain separate standards for use of force by peace officers, though it generally authorizes an officer to use all necessary means to effect the arrest of a suspect who flees or resists arrest,” the state representatives said in the final bill report. “This authorization is subject to the limitations under the United States Constitution and the restrictions in the state criminal code governing justifiable homicide and use of deadly force.”

In Krebs’ press release, he referenced Terry v. Ohio (1968), a landmark decision that legalized officers’ ability to “stop and frisk” anyone they reasonably suspect is armed and involved in a crime that either happened, is happening or is about to happen. In 2009, the law was expanded to include traffic stops — known as Terry stops.

“Terry stops allow us to detain an individual suspected in a crime to investigate and determine if a crime has been committed,” Krebs wrote. “It is the number one tool law enforcement uses day to day in conducting criminal investigations.”

Krebs went on to explain that the Terry v. Ohio ruling always required “reasonable suspicion” to detain someone and is a lesser requirement than the probable cause needed to arrest someone.

“The inability to detain the prime suspect or suspects will make it difficult to effectively investigate a crime,” Krebs said. “This will undoubtedly allow victims to continue to be victimized and perpetrators to not be held accountable.”

The San Juan County Sheriff’s Office responds to a number of mental health calls each year; HB 1310 will limit the officer’s ability to detain a person in crisis to transport them to a hospital for an evaluation, Krebs explained.

“Law enforcement officers now must ‘leave the area’ if no imminent threat or criminal act exists. This is done to take law enforcement out of the equation and transfer the crisis response to the mental health crisis professionals,” Krebs said. “What is missing is the mental health agencies are severely understaffed and in no way equipped or capable of dealing with a violent individual. What this means for our community is where we would normally take the person in crisis into custody and take them to the hospital, we may now have to leave them in their home with the very same people who called us for help in the first place.”

Other bills that made up the batch of a dozen new laws include a ban on chokeholds, neck restraints and no-knock warrants as well as prohibiting police agencies from acquiring military equipment and restricts the use of teargas by police; the creation of an 11-person advisory board for a new Office of Independent Investigations to look into use of deadly force incidents that occur after July 1, 2022; enhanced training; and a requirement to intervene if they witness a fellow officer using excessive force. These changes ensure Washington has “the best, most comprehensive, most transparent, most effective police accountability laws in the United States,” Inslee said before signing the bills.

”None of these laws in any way prohibit agencies from responding to calls for service,” Seattle Police Department Chief of Police Adrian Diaz said in a July 22 press release. Diaz noted that in cases where probable cause to arrest does not exist and a crime is not actively being committed if law enforcement cannot de-escalate the situation verbally, the officer will “be expected to disengage.”

“We ask for understanding from the community, including those who may be impacted by crime and those charged with delivering individuals in crisis safely into services, as we adjust our service capacity to meet the language and intent of these laws,” Diaz said. “The idea that the ability to use force is a prerequisite to engaging in investigative stops or responding to individuals in crisis is absurd.”

In a statement issued July 22, the Washington Fraternal Order of Police advocated for “a formal written legal opinion” from the state Attorney General regarding HB 1310 and HB 1054 — the bill banning military-grade weaponry. Shotguns that shoot beanbag projectiles are included in the ban, leading Washington law enforcement agencies to request additional direction from the state.

“[Washington Association of Sheriffs & Police Chiefs] is working with legislators and supports follow-up legislation to address unintended consequences, ambiguities, and conflicting provisions of the new laws,” WASPC Executive Director Steven D. Strachan said in a July 21 press release. “WASPC and its members will continue to work in good faith to improve the public service of law enforcement and embrace the sanctity of human life.”

Krebs noted other parts of the sweeping legislation that may ultimately affect the county’s law enforcement — pertaining to interviewing and interrogations, police pursuits and more.

“Only time will tell how all the new laws will look and how they will affect our communities. As we move forward and develop new ways to providing law enforcement services under these new guidelines, know that we at the Sheriff’s Office will still be accountable to the communities and the citizens we serve,” Krebs said. “Things will be more challenging, and we will do everything we can to continue to provide the best service and protect those who live, work, and visit here, even if it looks different than what we are all used to.”