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09/28/2021 04. Legislative Update on Police Reform • rr 111.-E.c41 i�O enc u nrry 1 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 4. For Meeting of: September 28, 2021 ITEM TITLE: Legislative Update on Police Reform SUBMITTED BY: Chad Janis, Lieutenant Ryan Bleek, Senior Assistant Attorney Matt Murray, Chief of Police SUMMARY EXPLANATION: Staff will provide a legislative update on police reform. ITEM BUDGETED: NA STRATEGIC PRIORITY: Public Safety APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: ATTACHMENTS: Description Upload Date Type D 2021 Police Reform Statutes Overview 9/22/2021 Presentation Police Reform Memo 9/22/2021 Backup Material 2021 Police Reform Statutes Overview SB 5051 Decertification • "AN ACT Relating to state oversight and accountability of peace officers . . . :' What is "Certification " and why does it matter? • Simply stated, "certification" is the official recognition and authorization for an individual to serve as a law enforcement officer. • Therefore, if an officer gets decertified, he or she can no longer be an officer. SB 5051 - Decertification "The [Washington state criminal justice training commission ] must deny or revoke the certification of an applicant or officer if the applicant or officer :" (a ) is convicted of felony or gross misd . DV crime; (b) . . . engaged in the use of force which resulted in death or serious injury and the use of force violated the law; (c) Witnessed excessive force and failed to intervene and/or report it; (d ) Dishonesty in the "practice of being a peace officer"; (e) Prohibited by law from possessing weapons. SB 5051 - Decertification "The commission may deny, suspend, or revoke the certification or require remedial training of an applicant or officer if the applicant or officer: (e) Engaged in a use of force that could reasonably be expected to cause physical injury, and the use of force violated the law or policy of the officer's employer; SB 5051 - Decertification Notable provisions of Section 20: ( 1) . . . The standard of proof in actions before the commission is clear, cogent, and convincing a preponderance of the evidence . HB 1310 — Permissible Uses of Force HB 1310 — Use of Force Section 3: Physical force allowed when necessary to : 1 . Protect against criminal conduct where there is probable cause to make an arrest; 2 . Effect an arrest; 3 . Prevent an escape (generally from detention/custody pursuant to lawful arrest, court order, charge, or conviction ); or 4. Protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used . HB 1310 — Use of Force Section 3: Deadly force allowed when necessary to protect against imminent threat of serious physical injury or death to the officer or another person . HB 1310 — Use of Force What is an "imminent threat of serious bodily injury or death ?" "Based on the totality of the circumstances, it is objectively reasonable to believe that a person has the present and apparent ability, opportunity, and intent to immediately cause death or serious bodily injury to the peace officer or another person ." HB 1310 — Use of Force What is "totality of the circumstances ?" "All facts known to the peace officer leading up to and at the time of the use of force, and includes the actions of the person against whom the peace officer uses such force, and the actions of the peace officer." HB 1310 — Use of Force What is "necessary ?" " [ u ] nder the totality of the circumstances, a reasonably effective alternative to the use of deadly force does not exist, and that the amount of force used was a reasonable and proportional response to the threat posed to the officer and others ." HB 1310 — Use of Force Use of force is subject to standard of reasonable care . Meaning : (a) When possible, exhaust available and appropriate de-escalation tactics prior to using any physical force, such as: Creating physical distance by employing tactical repositioning and repositioning as often as necessary to maintain the benefit of time, distance, and cover; when there are multiple officers, designating one officer to communicate in order to avoid competing commands; calling for additional resources such as a crisis intervention team or mental health professional when possible; calling for back-up officers when encountering resistance; taking as much time as necessary, without using physical force or weapons; and leaving the area if there is no threat of imminent harm or no crime is being committed; HB 1310 — Use of Force Use the least amount of force n ecessary to overcome resistance u nder the circumstances . Consider whether subject: • Is pregnant • A minor • Displays physical or mental impairment • Is under the influence • Has limited English proficiency HB 1310 — Use of Force Finally : • Terminate the use of force as soon as necessity ends . • When possible, use available less lethal alternatives . HB 1310 — Use of Force Recurring • What is "physical force" ? — The statute leaves it undefined . — Working definition from CJTC : "Any technique or tactic that is reasonably likely to cause transient pain or injury." HB 1310 — Use of Force Recurring Questions : • What about involuntary commitments ? — Use of force still hinges on the question : are they an imminent threat of bodily injury to another person or themselves? HB 1054 — Tactics HB 1054 — Tactics • Outlaws Chokeholds and Neck Restraints — EXCEPT, see HB 1310 Section 3(3) : "A peace officer may not use any force tactics prohibited by applicable departmental policy, this chapter, or otherwise by law, except to protect his or her life or the life of another person from an imminent threat." HB 1054 — Tactics Tear Gas • Prohibited except for : 1 . Riot, where approved by highest elected official 2 . Barricaded subject 3 . Hostage situation HB 1054 — Tactics Military Equipment • Prohibits firearms and ammunition greater than . 50 caliber. • Which includes less lethal options if they are greater than . 50 caliber. HB 1054 — Tactics Vehicular Pursuits • Allowed only when : a . (i) Probable cause to believe a person in the vehicle has committed or is committing a violent felony, sex offense, or an escape as defined in RCW 9.94A.030; or (ii ) reasonable suspicion of DUI; b. Pursuit is necessary for the purpose of identifying or apprehending the person; c. Person poses imminent threat to the safety of others and the safety risks of failing to apprehend/identify outweigh the safety risks of pursuit; AND d . Authorized by supervising officer HB 1054 — Tactics No more " No Knock" warrants . HB 5066 — Duty to Intervene and Report HB 1054 — Duty to Intervene/Report Duty to Intervene: "Any identifiable on-duty peace officer who witnesses another peace officer engaging or attempting to engage in the use of excessive force against another person shall intervene when in a position to do so to end the use of excessive force or attempted use of excessive force, or to prevent the further use of excessive force. A peace officer shall also render aid at the earliest safe opportunity in accordance with RCW 36 . 28A.445, to any person injured as a result of the use of force ." HB 1054 — Duty to Intervene/Report Duty to Report: "Any identifiable on-duty peace officer who witnesses any wrongdoing committed by another peace officer, or has a good faith reasonable belief that another peace officer committed wrongdoing, shall report such wrongdoing to the witnessing officer's supervisor or other supervisory peace officer in accordance with the witnessing peace officer's employing agency's policies and procedures for reporting such acts committed by a peace officer." City of Yakima Department S. 3rd Street �� 4 Police Department Yakima, Washington 98901 I O / 1 Matthew Murray, Chief of Police Telephone(509) 575-6200 Fax(509) 575-6007 0044 Memorandum 1 y September 21,2021 To: Yakima City Council From: Yakima Police Department Subject: Police Reform Greetings, In July, new statues concerning law enforcement tactics, oversight, and regulation took effect. Listed below is a synopsis of many of the changes that law enforcement officers must now navigate when responding to calls for service, as well as deciding whether to act upon a given situation. There is a lack of clarity as many of these changes had to take place in very short order, with little understanding of the legislative intent. This places law enforcement in a position that contradicts previous training and understanding of police practices, as well as previously clearly defined law. As such many police agencies have reconsidered or even opted not to respond to certain calls for service. While none of the new laws prohibit law enforcement from responding to calls for service, they clearly define what the consequences of violating the various new police reform laws. The Yakima Police Department is in the position of deciding do we continue to respond to certain non-police related issues simply because we are asked to, which clearly places our officers in jeopardy of being de-certified as Washington Police Officers or various other regulatory violations,in addition to criminal penalties if involved in an un-justified use of force situation. The following serves as a guide to what the reform laws indicate. Legislation Reform Changes Previous Practice House Bill 1054 Prohibits chokeholds of any The term "chokehold" is sort problematic. The appropriate technique is "carotid control" and it is one of the safest ways to control hostile/combative subject. Required significant re- training. 1 29 Legislation Reform Changes Previous Practice Convene a work group on use Used on violent offenders of police canines. where probable cause for arrest existed. *no changes at this point Limits use of CS (tear) gas. Used in SWAT/civil - Limits use to barricade disturbance incidents with and hostage situations. Command Level approval - Requires highest (Lieutenant, Captain or Chief). elected official for approval during riots. Ban on use of military YPD had issued multiple 12 equipment larger than .50 gauge less lethal shotguns in caliber: the field,which were used successfully in many - Removed less lethal 12 situations,where a firearm did gauge from YPD use not have to be used by police. This use provides officers an alternate to deadly force and has saved lives as a result. Vehicle Pursuits Banned Previously restricted by YPD to Except: limited violent offenses and - PC for violent offense DUI drivers,when authorized - Felony sex offense by a supervisor. - Felony escape - *DUI Officers could engage in Pursuits cont: pursuit prior to probable - Must have PC to cause while still investigating arrest/book someone when appropriate and in the fleeing vehicle necessary for public safety. meeting the new criteria. Ex. When responding to a - Necessary for homicide and suspect vehicle identifying or is spotted by police prior to apprehending. actual determination of - Imminent threat to probable cause by officer. public safety - Authorized by supervisor Criteria must be met before pursuit. Ban on shooting at vehicles Mirrors previous YPD policy. unless vehicle being used as a weapon. 2 30 House Bill 1310—USE OF Reform Previous FORCE Can only use force when: Officer could use force to - Where there is stop, prevent, or further an probable cause to investigation. make/effect arrest,or prevent an escape. For instance, officer responds - Protect against to a fight crime of violence imminent threat of where involved persons are bodily injury to officer, obstructing, running from another person. scene or hindering the investigation, officers could detain using reasonable force standard to stop the violence from continuing or to stop a fleeing suspect from escaping in order to further the investigation. Deadly Force Standard: Previously used reasonable - When necessary under officer standard from totality of constitutionally sound cases of circumstances Graham vs. Connor(objective - Reasonable and reasonableness standard) and proportional based on Tennessee vs. Garner (good threat. faith standard) that a suspect - Protect against posed significant threat of imminent threat of death or serious bodily injury. serious physical injury/death. Graham and Tennessee vs. - Offender has the Garner have been legally ability, opportunity, tested several times and were intent to cause serious constitutionally sound. bodily injury or death. - Unclear what many of these standards are as few definitions legal definitions exists. Reasonable Care Law Requires officers to use: While these are all good - Time, distance and considerations and tactics cover. most were already in place by - Consider language policy or practice. barriers and use of mental health professionals - Take as much time as possible - Consider suspects phys. Emotional,and mental condition 3 31 - Requires officers to leave if this criteria not met Least amount of force Requires officers to use least Previously officers used the necessary amount of force necessary objective reasonableness - No clear definition standard. what this means and has not been tested legally. Termination of Force Standard Must stop force as soon a Officers had to do this necessity for such force ends. previously,or face assault or excessive force charge. Less Lethal Make more less lethal options Had more less lethal platforms available prior to restrictions from reform laws. Senate Bill 5051- Officers now face suspension, Departments previously had Decertification revocation of other regulatory all disciplinary authority over issues related to their police police officers. CJTC could officer certification. decertify under certain - CJTC statewide criteria. oversight - Office of Independent Inv. - State Auditor 4