Legislative Changes

RCW 10.116

Initially passed as ESHB 1054 and became RCW 10.116, this law includes prohibitions on the use of “Military Equipment,” neck restraints and chokeholds.

A law enforcement agency may not acquire or use any Military Equipment, including firearms and ammunition of .50 caliber or greater, machine guns, armed helicopters, armed or armored drones, armed vessels, armed vehicles, armed aircraft, tanks, long range acoustic hailing devices, rockets, rocket launchers, bayonets, explosive grenades, incendiary grenades, missiles, directed energy systems, and electromagnetic spectrum weapons.  Initially, the department’s less lethal launchers that fire plastic bullets and sponge rounds meet the definition of Military Equipment.

In 2022 HB 1719 amended the definition of “military equipment” to mean rifles of .50 caliber or greater. This new definition allows the use of shotguns and any equipment devised, designed or used to deploy less-lethal munitions. This allowed Everett PD to resume the use of their 37mm and 40mm less-lethal launchers.

A peace officer may not use a chokehold or neck restraint on another person in the course of his or her duties as a peace officer. "Chokehold" means the intentional application of direct pressure to a person's trachea or windpipe for the purpose of restricting another person's airway. "Neck restraint" refers to any vascular neck restraint or similar restraint, hold, or other tactic in which pressure is applied to the neck for the purpose of constricting blood flow. 

This law also severely limits police traffic pursuits to only the following scenarios: 

• There is probable cause to believe that a person in the vehicle has committed or is committing a Violent offense, Sex offense or an Escape offense, or there is reasonable suspicion that a person in the vehicle has committed or is committing a driving under the influence offense; and
• The pursuit is necessary for the purpose of identifying or apprehending the person; and
• The person poses an imminent threat to the safety of others and the safety risks of failing to apprehend or identify the person are considered to be greater than the safety risks associated with the vehicular pursuit under the circumstances; and 
• An officer must receive authorization to engage in any vehicular pursuit from a supervising officer, and there must be supervisory control of any vehicular pursuit. 

Finally, the law also provides guidelines for the use of tear gas. A law enforcement agency may not use or authorize its peace officers or other employees to use tear gas unless necessary to alleviate a present risk of serious harm posed by a riot, barricaded subject, or hostage situation. Prior to deploying tear gas, the officer or employee must: 

• Exhaust alternatives to the use of tear gas that are available and appropriate under the circumstances; and
• Obtain authorization to use tear gas from a supervising officer, who must determine whether the present circumstances warrant the use of tear gas and whether available and appropriate alternatives have been exhausted; and
• Announce to the subject or subjects the intent to use tear gas; and allow sufficient time and space for the subject or subjects to comply with the officer's or employee's directives; and 
•  In the case of a riot occurring outside of a correctional, jail, or detention facility, the officer or employee may use tear gas only after receiving authorization from the highest elected official in the jurisdiction.

This law also mandates that all uniformed officers are reasonably identifiable and bans no-knock warrants

How this impacts the Everett Police Department

The Everett Police Department had already met or exceeded many of the bill’s new statewide mandates in several areas. For example, the bill prohibits the use of chokeholds and neck restraints, which EPD had already prohibited.  

RCW 10.116 also limits police traffic pursuits to instances where officers hold probable cause for violent crimes or specific sex offences where the public risk of escape outweighs the risk of pursuit. EPD has maintained a strict pursuit policy for many years in advance of RCW 10.116, and we recognize the inherent risks associated with pursuits.  EPD’s pursuit policy complies with all the provisions of f RCW 10.116, and in some instances is more restrictive than state law.

In addition, the bill restricts use of tear gas, to include a requirement to receive authorization for its use from the Mayor in certain circumstances.  The Everett Police Department rarely uses tear gas, but has updated its policies on how and when SWAT and our Special Operations Group will deploy tear gas.

The bill also mandates that all uniformed officers are reasonably identifiable. All EPD patrol uniforms met this standard in advance of the bill by clearly identifying officers by name and employee numbers. Following f RCW 10.116,  we further ensured that all units, including SWAT and our Special Operations Group, met this mandate.

RCW 10.116 additionally prohibits the use of “Military Equipment”, and initially broadly defined Military Equipment to include our 40mm launcher, which fires less lethal sponge rounds designed to incapacitate a person, rather than bullets. 

In 2022 HB 1719 amended the definition of “military equipment” to mean rifles of .50 caliber or greater. This new definition allows the use of shotguns and any equipment devised, designed or used to deploy less-lethal munitions. This allowed Everett PD to resume the use of their 37mm and 40mm less-lethal launchers.

RCW 10.93.190

Passed as SSB 5066 and became RCW 10.93.190. Created a duty for officers to intervene if they observe another officer using excessive force, to provide first aid at the earliest safe opportunity and a duty to report if they witness another officer committing wrongdoing.  Agencies are required to report failure of officers to intervene or report to the state.

How this impacts the Everett Police Department

The Everett Police Department already had a duty to intercede policy in effect prior to the passage of RCW 10.93.190.  Additionally, in January of 2021, EPD began training all officers in Active Bystandership for Law Enforcement (ABLE), which reinforces officer  intervention in all aspects of potential wrongdoing or use of excessive force.  This curriculum saves lives, officer careers, promotes officer wellness and builds community trust.

ESB 5476

A person who would otherwise be subject to arrest for possession of a controlled substance, counterfeit substance, legend drug, or 40 grams or less of marijuana shall be offered referral for assessment and services by law enforcement in lieu of jail booking and referral to a prosecutor. An officer is required to refer a person at least two times before that person is subject to jail booking and prosecution.  The crime of possession of a controlled substance was also lowered from a felony to a simple misdemeanor.

This law also removed the crime of possession of drug paraphernalia if the paraphernalia is used to ingest drugs for personal use.

 How this impacts the Everett Police Department

The Everett Police Department has developed a referral process and a system that allows officers to see previous referrals within Snohomish County, so enforcement action can be taken after two referrals have been completed. However, the State of Washington does not have a statewide database to track previous referrals, so if a subject has been previously referred for services by a law enforcement agency outside of Snohomish County, EPD officers have no way of knowing.

Members of our community who call to report people using drugs may see officers arrive, talk to the individual(s) and then leave without taking any criminal enforcement action.   We understand that this may be frustrating to some community members, but officers are simply following the new state law.  While this may facilitate some people getting the services they need to address their substance use disorder or other issues, it will also restrict an officer from making a physical arrest in situations that had previously been eligible for an arrest or citation.

RCW 43.102

Initially passed as HB1267 and became RCW 43.102. Created a State Office of Independent Investigations (OII) within the Officer of the Governor that can take over certain investigations involving officers use of force.

According to the law, an independent investigation must be completed whenever a peace officer's use of force results in death, great bodily harm, or substantial bodily harm. The investigation informs the determination of whether the use of deadly force met the objective good faith standard and satisfied other applicable laws and policies. ("Good faith" is an objective standard which must consider all the facts, circumstances, and information known to the peace officer at the time to determine whether a similarly situated reasonable peace officer would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual.)

The Criminal Justice Training Commission (CJTC) was tasked with adopting rules for independent investigations. Under the rules, Independent Investigation Teams (IITs) are responsible for conducting investigations. An IIT is made up of qualified and certified peace officer investigators, civilian crime scene specialists, and at least two non-law enforcement community representatives who operate independently when conducting investigations. When a qualifying incident occurs, the agency must immediately report to the IIT and preserve the scene until the IIT arrives. The agency employing the involved officer under investigation may not participate in the IIT's investigation except to: share specialized equipment when no reasonable alternative exists, the equipment is critical to the investigation, and the use is approved by the IIT commander; receive briefings given to the chief or sheriff of the involved agency about the progress of the investigation; and release body camera video or other investigation information of urgent public interest, with the agreement of the jurisdiction's prosecutor.

How this impacts the Everett Police Department

Snohomish County still has its own independent investigation team called SMART, which investigates use of force incidents, but in February 2022, the OII will begin fielding calls.  This means there will two distinct and independent investigative teams, a Snohomish County team, and a second team operated out of the State Attorney General’s Office.

E2SSB 5051

Among other provisions, this bill amends authority of the Criminal Justice Training Commission (CJTC) to receive complaints against law enforcement officers, conduct investigations into officer actions and expands background investigation requirements.  

The bill also greatly expands the list of conduct for which an officer will automatically be decertified to include:

• Has been convicted of a felony, a gross misdemeanor domestic violence offense, a sex offense, or offense with sexual motivation and the offense was not disclosed at the time of the application or the officer was a certified peace officer or corrections officer at the time of the offense and the offense was not one for which the officer was granted a pardon or was adjudicated as a juvenile and the record sealed.
• Has been terminated for engaging in or found by a court to have engaged in the use of force which resulted in death or serious injury and the use of force violated the law.
• Has been terminated for witnessing or found by a court to have witnessed another officer's use of excessive force and failed to intervene or failed to report the excessive force in accordance with policy or procedure.
• Has been found by a court to have made knowingly misleading, deceptive, untrue or fraudulent representations in the practice of being a peace officer or corrections officer.
• Is prohibited from possessing weapons by state or federal law or by permanent court order entered after a hearing.

The bill also adds a new category that permits the CJTC to deny, suspend, or revoke an officer’s certification, or require remedial training, for certain conduct, including: :

• Failed to timely meet all training requirements.
• Was previously issued a certificate through administrative error.
• Knowingly falsified or omitted material information on an application to the employer or for training or certification to the commission.
• Interfered with an investigation or action for denial or revocation of certification by making false statements, failing to report information as required by law or policy, or tampering with evidence or intimidating a witness.
• Engaged in a use of force that could reasonably be expected to cause injury and the use of force violated law or policy.
• Committed sexual harassment as defined by state law.
• Through fraud or misrepresentation used the position of peace officer or corrections officer for personal gain.
• Engaged in conduct involving prejudice or discrimination against a person.
• Has affiliation with one or more extremist organizations.
• On or off duty, committed a felony (regardless of conviction); engaged in a pattern of acts showing an intentional or reckless disregard for the rights of others; engaged in unsafe practices involving firearms, weapons, or vehicles indicating a willful disregard for the safety of persons or property; engaged in conduct that fails to meet the ethical and professional standards required of an officer, jeopardizes public trust in the criminal justice system, or demonstrates an inability or unwillingness to uphold the officer’s sworn oath to enforce the state and federal constitutions and laws.
• Has been suspended or discharged, or resigned or retired in lieu of discharge, for any conduct listed in the section.
• Has voluntarily surrendered the person's certification as a peace officer or corrections officer.

How this impacts the Everett Police Department

In addition to the expansion of both disqualifying and potentially disqualifying conduct, the law lowers the burden of proof necessary to decertify or suspend an officer’s certification. Everett Police Department has always maintained high standards during the hiring process and conducts thorough background checks. We have confidence that our officers will continue to meet and exceed the state's and community’s expectations. 

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