State Senate Considers Expanding Program to Provide Legal Counsel to Youth Interacting with Police

By Paul Kiefer

Following the guidance of youth rights advocates, the Washington State Senate is considering legislation that would require police officers statewide to connect young people to attorneys before questioning them or asking them to consent to a search. The bill, originally introduced in the state house by Rep. Jesse Johnson (D-30, Federal Way), would prompt Washington’s Office of Public Defense to create a hotline to connect young people to legal advisors.

The Seattle City Council and King County Council passed similar legislation at the end of last summer, requiring law enforcement officers to connect young people to attorneys from the King County Public Defender’s office after reading their Miranda rights or asking them to consent to a search of their belongings. Both ordinances were named for Mi’Chance Dunlap-Gittens, a Black teenager from Des Moines shot while running away from King County Sheriff’s deputies during a disastrous sting operation in 2017. Though deputies never read Dunlap-Gittens his Miranda rights—he ran away from the plainclothes deputies after they burst from the back of an unmarked van—the ordinances were named to honor his aspirations to work as a youth rights attorney.

“If a police officer knows that there’s going to be someone available to represent the youth, they’re not going to be able to use their position of power to bully or coerce a child into having a conversation with them or making a statement.”—Kendrick Washington, youth policy counsel for the ACLU of Washington

The bill before the state senate, HB 1140, would not only expand the same protections statewide, but require that young people speak to an attorney before answering any questions during so-called “Terry stops”—a brief detention based on an officer’s “reasonable suspicion” that someone has committed a crime. Because “Terry stops” are not arrests, the Seattle and King County ordinances don’t address the rights of young people to speak to attorneys in those contexts.

Specifically, the proposed law would require Washington’s Office of Public Defense to hire a team of six attorneys who would provide brief legal advice to young people in person, by phone or over a video call, after a stop; the attorneys would work in shifts and respond to calls from youth across the state. If a police officer stopped a young person in any circumstances that would require them to waive their Fifth Amendment rights, the law would require officers to connect the young person to an attorney—typically by providing the number for the state-managed hotline—before asking any questions or searching the young person’s belongings. The legislation makes an exception for searches done in the interest of an officer’s immediate safety, including searches for weapons.

According to Kendrick Washington, the youth policy counsel for the ACLU of Washington—which played a key role in shaping the bill—young people are typically unaware of their rights during encounters with police. The point of requiring young people to consult with attorneys before responding to police questioning, Washington said, “is not to tell [young people] what they have to do—it’s about telling them what their options are, because they usually don’t know.”

In practice, the law might look like this: An officer searching for a burglary suspect in a green sweatshirt stops a teenager wearing a green sweatshirt. Before the officer can ask the teenager any questions, they would have to call the Washington public defender’s office and put the teenager on the phone with an attorney. The attorney would explain the teenager’s options—asking whether they are being detained, answering the officer’s questions and risking self-incrimination, refusing to answer questions and walking away—allowing the teenager to make an informed decision about how to respond to the officer.

Law enforcement spokespeople voiced their opposition to portions of the bill during a hearing before the Senate Ways and Means committee on Tuesday. James McMahan, the policy director for the Washington Association of Sheriffs and Police Chiefs, criticized the legislation for prohibiting young people from waiving their right to counsel, and he called into question the proposed budget for the program, which assumes that the Office of Public Defense would field only 4,000 phone calls from young people per year.

According to McMahan, police in Washington arrest nearly three times as many young people per year, in addition to thousands of other interactions that don’t end in arrests. However, police don’t ask young people to waive their rights to counsel during every arrest—the Office of Public Defense’s estimate reflects the proportion of arrests in which officers ask young people to waive their rights, not the total number of arrests the office expects in coming years.

Russell Brown, the Executive Director of the Washington Association for Prosecuting Attorneys, also challenged the proposal to require police to connect young people to attorneys during Terry stops, which he called a part of the basic “investigative process.” By his reasoning, requiring officers to wait until a person has spoken to an attorney before asking any questions would prevent officers from responding efficiently to fast-moving crises, and could prompt “people who are actually witnesses or victims” to feel like suspects.

But Washington argues that those concerns are misplaced. “Ultimately, I think this is going to make the lives of law enforcement easier because it will build trust,” he said. “If a police officer knows that there’s going to be someone available to represent the youth, they’re not going to be able to use their position of power to bully or coerce a child into having a conversation with them or making a statement, so I certainly hope they would think twice before randomly pulling over some young person because they ‘fit a description.'”

Brian Robick, an ACLU spokesman, also clarified that while “the overwhelming majority of young people are not stopped for situations in which life-threatening circumstances exist,” the bill would provide an exception for officers to interrogate young people without connecting them to an attorney if they “reasonably believe the information sought is necessary to protect life from an imminent threat.” Robick also wrote that after the passage of a similar ordinance in King County in 2017, police officers in the county have asked young people to waive their rights to counsel far less frequently (even in the absence of an automatic right to call an attorney).

If passed, the bill will largely not impact school resource officers, who—according to state law—can’t involve themselves in school discipline; unless a school resource officer was questioning a student as part of an investigation into a crime, they would be allowed to talk freely with students. Seattle suspended its school resource officer program last year.

The Senate Ways and Means committee will hold a vote on the bill tomorrow, April 2.

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