In 2021, the legislature passed Engrossed Second Substitute House Bill No. 1310, codified as chapter 10.120 RCW, with the goal of establishing a uniform statewide standard for use of force by peace officers. The standard emphasizes the importance of exercising reasonable care and preserving and protecting human life. However, the complexities and nuances of police practices and applicable laws, both in statute and common law, have posed implementation challenges for some police agencies. For that reason, the legislature hereby recognizes the urgent need to provide clarification and guidance for police agencies and the public.
The legislature intends for peace officers to continue performing the critical role of supporting those in crisis and assisting vulnerable members of our communities. The legislature does not intend to prevent or prohibit peace officers from protecting citizens from danger. The legislature recognizes that peace officers can and do perform these responsibilities while also maintaining the highest standards of safety and reasonable care expressed in RCW 10.120.020.
While the newly established civil standard in RCW 10.120.020 is unique insofar as it is codified in state law, it represents national best practices developed by police leaders across the nation. The legislature does not intend to abrogate the criminal liability protections afforded to peace officers in chapter 9A.16 RCW. Instead, the legislature hereby reaffirms its intent to establish RCW 10.120.020 as a distinct and more restrictive civil standard to inform the policies and practices applicable to all peace officers operating within state agencies and local governments. The legislature recognizes the profoundly important role peace officers have in protecting communities, and further recognizes that implementing and enforcing these best practices will improve public safety for all persons across the state.
This section modifies existing section 10.120.010. Here is the modified chapter for context.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"De-escalation tactics" refer to actions used by a peace officer that are intended to minimize the likelihood of the need to use force during an incident. Depending on the circumstances, "de-escalation tactics" may include, but are not limited to: Using clear instructions and verbal persuasion; attempting to slow down or stabilize the situation so that more time, options, and resources are available to resolve the incident; creating physical distance by employing tactical repositioning 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; requesting and using available support and resources, such as a crisis intervention team, a designated crisis responder or other behavioral health professional, or back-up officers.
"Law enforcement agency" includes any "general authority Washington law enforcement agency" and any "limited authority Washington law enforcement agency" as those terms are defined in RCW 10.93.020.
"Less lethal alternatives" include, but are not limited to, verbal warnings, de-escalation tactics, conducted energy weapons, devices that deploy oleoresin capsicum, batons, and beanbag rounds.
"Peace officer" includes any "general authority Washington peace officer," "limited authority Washington peace officer," and "specially commissioned Washington peace officer" as those terms are defined in RCW 10.93.020; however, "peace officer" does not include any corrections officer or other employee of a jail, correctional, or detention facility, but does include any community corrections officer.
This section modifies existing section 10.120.020. Here is the modified chapter for context.
1.PHYSICAL FORCE. Except as otherwise provided under this section, a peace officer may use physical force against a person to the extent necessary to:
a. Protect against criminal conduct where there is probable cause to make an arrest;
b. **Effect** an arrest;
c. **Prevent** an escape as defined under chapter 9A.76 RCW;
d. **Take a person into custody, transport a person for evaluation or treatment, or provide other assistance under chapter 10.77, 71.05, or 71.34 RCW;**
e. **Take a minor into protective custody when authorized or directed by statute;**
f. **Execute or enforce a court order authorizing or directing a peace officer to take a person into custody;**
g. **Execute a search warrant;**
h. **Execute or enforce an oral directive issued by a judicial officer in the courtroom or a written order where the court expressly authorizes a peace officer to use physical force to execute or enforce the directive or order; or**
i. **Protect** against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.
"Immediate threat of serious physical injury or death" means that, 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.
"Necessary" means that, under 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.
"Totality of the circumstances" means 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.
REASONABLE CARE. A peace officer shall use reasonable care when determining whether to use physical force or deadly force and when using any physical force or deadly force against another person. To that end, a peace officer shall:
When possible, use all de-escalation tactics that are available and appropriate under the circumstances before using physical force;
When using physical force, use the least amount of physical force necessary to overcome resistance under the circumstances. This includes a consideration of the characteristics and conditions of a person for the purposes of determining whether to use force against that person and, if force is necessary, determining the appropriate and least amount of force possible to effect a lawful purpose. Such characteristics and conditions may include, for example, whether the person: Is visibly pregnant, or states that they are pregnant; is known to be a minor, objectively appears to be a minor, or states that they are a minor; is known to be a vulnerable adult, or objectively appears to be a vulnerable adult as defined in RCW 74.34.020; displays signs of mental, behavioral, or physical impairments or disabilities; is experiencing perceptual or cognitive impairments typically related to the use of alcohol, narcotics, hallucinogens, or other drugs; is suicidal; has limited English proficiency; or is in the presence of children;
Terminate the use of physical force as soon as the necessity for such force ends;
When possible, use less lethal alternatives that are available and appropriate under the circumstances before using deadly force; and
Make less lethal alternatives issued to the officer reasonably available for his or her use.
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.
Nothing in this section :
Limits or restricts a peace officer's authority or responsibility to perform lifesaving measures or perform community caretaking functions to ensure health and safety including, but not limited to, rendering medical assistance, performing welfare checks, or assisting other first responders and medical professionals;
Prevents a peace officer from responding to requests for assistance or service from first responders, medical professionals, behavioral health professionals, social service providers, designated crisis responders, shelter or housing providers, or any member of the public;
Permits a peace officer to use physical force or deadly force in a manner or under such circumstances that would violate the United States Constitution or state Constitution; or
Prevents a law enforcement agency or political subdivision of this state from adopting policies or standards with additional requirements for de-escalation and greater restrictions on the use of physical and deadly force than provided in this section.