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New Washington State Law Removes ‘Actual Malice’ Roadblock in Police Prosecutions

by Derek Gilna

Two new Washington state laws have removed a statutory impediment to state prosecutors holding police officers accountable for reckless or negligent conduct. The measures eliminate the barrier of having to prove “malice” or “evil intent” in bringing criminal actions against police officers accused of wrongdoing.

According to Mother Jones, “Under the revised state law, prosecutors must show that the defendant behaved in a way a ‘reasonable officer’ would not have in a similar situation. The change brings Washington’s deadly force law more in line with those of other states.”

Lisa Daugaard, director of the Washington nonprofit Public Defender Association, stated, “We understand that there’s no guarantee that anyone will be prosecuted under this law. It just removes the excuse for not actually taking that question on at face value.”

The question Daugaard said should be asked is, “Did the officer’s actions constitute a crime? If so, the prosecutor has the ability to bring criminal charges.... If prosecutors choose not to bring really egregious cases now, they will have to defend that—they will have to answer to the voters for those.”

According to a Seattle Times review, only one police officer faced criminal charges in almost 10 years, despite 213 fatal police shooting incidents in the state from 2005 to 2014. A similar nationwide study done by The Washington Post for the same time period showed only 54 officers were charged with a crime.

The legislative changes came in the wake of statewide polling that showed approximately 75 percent of Washington voters wanted police immunity reduced. This development came about as a result of numerous instances of questionable police usage of deadly force in several incidents involving citizens in recent years.

In 2017, Charleena Lyles was shot and killed by police in her apartment, after officers, none of whom was wearing a body camera, claimed she lunged at them with a knife. In 2016, Tacoma police killed Jacqueline Salyers in a confrontation. Police and eyewitnesses provided widely conflicting accounts of the incident. That same year, Pasco police shot and killed Antonio Zambrano-Montes after he threw rocks at them and dared them to shoot him.

Although the new laws retain the police’s “good faith” defense for potentially questionable police action, most experts agree that criminal prosecutions of law enforcement are now easier to bring. However, not everyone agrees with that assessment. According to Thurston County Prosecutor Jon Tunheim, “you’re [not] just going to see a lot more officers charged,” although the new laws “give us a few more options.” 


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