Thursday, July 8, 2021


July 8, 2021

A limited approach to the gun menace

As noted, the legislature did much to address the issue of the use of force by police.  It took a more cautious approach to the proliferation of guns in part, no doubt, because the state constitution, like the federal, contains unfortunate language regarding weapons.  The state version is worse; it took a misreading of the Second Amendment to convert it into a broad declaration of an individual right to be armed, but the state provision clearly separates the individual right from a collective one:

RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.[56]

Despite that sweeping grant, Senate Bill 5038, recently passed by the legislature and signed by the Governor, establishes some limits as to where guns and other weapons may be carried.  Omitting some details and qualifications, it provides as follows:

Section 1, subsection (1) declares that 

It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a weapon:

(a) The restricted access areas of a jail  or of a law enforcement facility . . . ;

(b) Those areas in any building which are used in connection with court proceedings . . .;

(c)  The restricted access areas of a public mental health facility . . . and state institutions for the care of the mentally ill . . . ;

(d) That portion of an establishment classified by the state liquor and cannabis board as off-limits to persons under 21 years of age; or

(e) The restricted access areas of a commercial service airport . . . .

Subsection (1) does not apply to:

(a) A person engaged in military activities sponsored by the federal or state governments, while engaged in official duties;

(b) Law enforcement personnel . . .;

       (c) Security personnel while engaged in official duties.

There is appended a definition of “weapon” but, for no obvious reason, it applies only to (b) above, where it means “any firearm, explosive as defined [by a statute], or any weapon of the kind usually known as slungshot, sand club, or metal knuckles, or any knife, dagger, dirk, or other similar weapon that is capable of causing death or bodily injury and is commonly used with the intent to cause death or bodily injury.”

To confuse matters further, the following definition appears later, and is applied to all of Section 1:   “ ‘Weapon’ as used in this section means any firearm, explosive as defined [by the same statute], or instrument or weapon listed in RCW 9.41.250.”  That statute, in one subsection, lists the following: “slungshot, sand club, metal knuckles and spring blade knife,” and in another subsection “any dagger, dirk, pistol or other dangerous weapon.”  Yet another subsection refers to silencers.  RCW 9.41.250 defines “spring blade knife,” but we are left to wonder what  slungshots and sand clubs are.

Section 1, subsection (2) provides that, except for law enforcement or military personnel, “it is unlawful for any person to knowingly open carry a firearm or other weapon while knowingly at any permitted demonstration. . . .”  The ban applies whether the firearm or other weapon is carried on the person or in a vehicle. “Weapon” has the same meaning as in subsection (1)(b) above.

The ban in subsection (2) does not apply “to the lawful concealed carry of a firearm by a person who has a valid concealed pistol license.” The reference to “firearm” is confusing, as the license would authorize only a pistol.  There is a similar, qualified exemption under Section 1, subsection (1)(a) above,  in which “pistol,” “firearm” and “weapon” are mixed. 

Section 1, subsection (3), continuing the baffling application of conditions and restrictions, provides that, cities, towns, counties, and other municipalities may enact laws

(a) Restricting the discharge of firearms in any portion of their respective jurisdictions . . . . Such laws and ordinances shall not abridge the right of the individual guaranteed by Article I, section 24 of the state Constitution . . . ; and

(b) Restricting the possession of firearms in any stadium or convention center, operated by a . . . municipality, except that such restrictions shall not apply to:

(i) Any pistol in the possession of a person licensed under [state law] or exempt from the licensing requirement . . . ; or

(ii) Any showing, demonstration, or lecture involving the exhibition of firearms.

Cities, towns, and counties [why not “other municipalities?”]  “may enact ordinances restricting the areas in their respective jurisdictions in which firearms may be sold, but, except as [to school zones], a business selling firearms may not be treated more restrictively than other businesses located within the same zone.”

Section 2, perhaps exhibiting a degree of self-interest by legislators, makes it “unlawful for any person to knowingly open carry a firearm or other weapon” on the “west state capitol campus grounds; any buildings on the state capitol grounds; any state legislative office; or any location of a public legislative hearing or meeting during the hearing or meeting.”  "Weapon" is, in somewhat confusing fashion, given the same definition as in subsection (1)(b) above.

However, self-protection and protection of others can go only so far: “Nothing in this section applies to the lawful concealed carry of a firearm by a person who has a valid concealed pistol license.” (Again, the odd combination of pistol and firearm). Apparently, it’s acceptable to be a menace if the gun isn’t brandished before use.    

The statute is a drafting mess, but the more serious problem is that we are limited to half-measures by the self-destructive gun culture, which never will be eliminated until we expunge gun-rights provisions, or those interpreted to grant gun rights, from our constitutions or, as to the Second Amendment, until the Supreme Court recognizes the error it made in Heller and McDonald.


56. Constitution of the State of Washington, Article I, Section 24.

Tuesday, July 6, 2021

<b>July 6, 2021</b> 

<u>Policing the Police</u>

The excessive use of force by police has been a problem here in Washington, as elsewhere.  Two developments provide some hope of progress. 

The first is the filing by the State Attorney General of criminal charges against three police officers involved in the death of Manuel Ellis, an African American, in March, 2020.  According to the charges, he was subjected to various kinds of force, including a “lateral vascular neck restraint” from behind — in other words a choke hold —  repeated  Taser bursts, hogtying (handcuffed and legs trussed behind his back) and an officer kneeling on his back and pushing his face into the pavement.  Ellis was heard to cry out “Can’t breathe, sir, can’t breathe.” We have heard that too often.  Despite that plea, a “spit hood,” in effect a mask, was put over his face. 

He died at the scene. The Medical Examiner concluded that the cause of death was “hypoxia (a lack of oxygen) due to physical restraint,” and that “the manner in which Ellis was restrained by officers and the application of the spit hood prevented Ellis from breathing properly and caused respiratory arrest and death.” He determined Ellis’s death to be a homicide.[53]

After a bungled investigation by the Pierce County Sheriff, the matter was referred by the Governor to the Washington State Patrol for a further investigation, and ultimately the State Attorney General intervened, resulting in the charges. The Tacoma Police Union issued a statement, Trump-like in its inanity and irresponsibility, calling the charges “a politically motivated witch hunt.”[54]

The second development is a package of bills passed by the Legislature, recently signed by the Governor, which address issues surrounding policing.  Briefly — and assuming that I have accurately untangled the unnecessarily opaque way in which bills are presented —they provide as follows:

Senate Bill 5051 amends a statute pertaining to the Washington State Criminal Justice Training Commission, directing  it to “establish and administer standards and processes for certification, suspension, and decertification of peace officers and corrections officers.” It also will ”provide programs and training that enhance the integrity, effectiveness, and professionalism of peace officers and corrections officers while helping to ensure that law enforcement and correctional services are delivered to the people of Washington in a manner that fully complies with the Constitutions and laws of this state and United States.”  The Commission will include seven “community members who are not employed in law enforcement,” up from two; of the seven, three will be “from a historically underrepresented community.”

In a somewhat convoluted section, SB 5051 broadens the list of offenses that can cause officers to lose  certification, the loss of which will prevent their moving to other police departments.

House Bill 1001 provides that the Commission “shall develop and implement a law enforcement professional development outreach grant program for the purpose of encouraging a broader diversity of candidates from under represented groups and communities to seek careers in law enforcement.”

House Bill 1310 deals with the use of force.  Subject to certain limitations, a peace officer may use physical force when necessary to “[p]rotect against criminal conduct where there is probable cause to make an arrest; effect an arrest; prevent an 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.”  Deadly force may be used “only when necessary to protect against an imminent threat of serious physical injury or death to the officer or another person.”

In determining whether to use force, a peace officer shall, when possible, “exhaust available and appropriate de-escalation tactics,” some of which are listed.  Also, when using physical force, the officer shall “use the least amount of physical force necessary to overcome resistance under the circumstances.”

One of the aspects of police shootings that I have found puzzling and disturbing is that, so often, someone is fatally shot who could have been controlled by wounding (assuming that any shooting was required).  The foregoing provisions may have been intended to deal with that issue, but it should be addressed directly. 

House Bill 1054 bars police from using choke holds or neck restraints.  It bans the use of tear gas “unless necessary to alleviate a present risk of serious harm” posed by “[r]iot, barricaded subject, or hostage situation.”  It also establishes limits on the use of vehicular pursuit.

Addressing the militarization of police departments, HB 1054 provides that “A law enforcement agency may not acquire or use any military equipment.” Any law enforcement agency possessing military equipment “shall return the equipment to the federal agency from which it was acquired, if applicable, or destroy the equipment by December 31, 2022.“ 

Finally, 1054 provides as follows: “An officer may not seek and a court may not issue a search or arrest warrant granting an express exception to the requirement for the officer to provide notice of his or her office and purpose when executing the warrant.”  In other words, no-knock warrants are out.

Senate Bill 5066 requires officers to intervene when they see other officers using excessive force:

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. . . . A peace officer shall also render aid at the earliest safe opportunity. . .  to any person injured as a result of the use of force.

There is a reporting requirement which seems to go beyond the issue of excessive force.           

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 . . . .

It’s odd that the duty to report is limited to on-duty officers.

To protect the reporting officer, the act provides: “A member of a law enforcement agency shall not discipline or retaliate in any way against a peace officer for intervening in good faith or for reporting wrongdoing in good faith as required by this section.”

Senate Bill 5259 provides that a “contractor,” to be named, will “implement a statewide use of force data program as provided in this chapter.” The contractor will be an “institution of higher education.”  The statute is a maze of bureaucratic provisions pertaining to rules to be established and to an advisory body which will help draft them. 

If the program comes into being, it would operate as follows: “Each law enforcement agency in the state is required to report each incident where a law enforcement officer employed by the agency used force” and where a fatality or “great bodily harm” or “substantial bodily harm”occurred; or the officer used a choke hold or vascular neck restraint; or,  “against a person,” the officer pointed or discharged a firearm; used “an electronic control weapon including, but not limited to, a taser;” used “oleoresin capsicum [pepper] spray;” discharged ”a less lethal shotgun or other impact munitions;” struck, “using an impact weapon or instrument including, but not limited to, a club, baton, or flashlight;” kicked, punched or slapped; struck with a vehicle; or released a dog which then bit. 

Accumulation of this information would be useful to the state, and also to the FBI, which has struggled to obtain use-of-force data from police departments.[55]  Although the data collected under SB 5051 could help fill that gap, there is nothing in the bill about sharing the information gathered.  The closest it comes is a provision that the advisory group should “[r]ecommend practices for public, law enforcement, and academic access and use of program data.”

       House Bill 1267 contains this recital:

The legislature finds that there has been an outpouring of frustration, anger, and demand for change from many members of the public over the deaths of people of color resulting from encounters with police. The most recent deaths in the United States and within Washington are a call to lead our state to a new system for investigating deaths and other serious incidents involving law enforcement officers.

The bill creates an Office of Independent Investigations within the Office of the Governor. The new agency will “[c]onduct fair, thorough, transparent, and competent investigations of police use of force and other incidents involving law enforcement. . . .”  Although that refers generally to “force,” the specific provisions focus on deadly force, The Office shall:

(1) Conduct fair, thorough, transparent, and competent investigations of police use of force and other incidents involving law enforcement as authorized in this chapter . . . . The office shall commence investigations as follows:

(1)(a) Beginning no later than July 1, 2022, the office is authorized to conduct investigations of deadly force cases occurring after July 1, 2022, including any incident involving use of deadly force by an involved officer . . . and

(b) Beginning no later than July 1, 2023, the office is authorized to review, and may investigate, prior investigations of deadly force by an involved officer if new evidence is brought forth that was not included in the initial investigation.

Subsection (a) is puzzling; it isn’t clear what the Office would have to do with deadly force cases not pertaining to an involved officer.

The statutes need review, in part because they overlap, but they and the prosecution by the AG should help to put us on the right path.  Neither the reaction of the police union nor calls for defunding the police is a useful response to allegations of police misconduct.


<br>53.Attorney General’s  press release:

The Declaration for Determination of Probable Cause included in the release is a copy of a document of that title filed in Pierce County Superior Court as part of the prosecution:

<br>54. on-manuel-ellis-death/

<br>55. post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most& 2779564ed94%2 F24%2F72%2 F60c0ec059d2fdae3027672c7

1 Attorney General’s  press release:

The Declaration for Determination of Probable Cause included in the release is a copy of a document of that title filed in Pierce County Superior Court as part of the prosecution:

2 manuel-ellis-death/.

3 post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most&

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