Bill to Allow Police to Use Force Against Fleeing Suspects Could Face Constitutional Challenge

Washington State Capitol (Flickr: SounderBruce)

By Paul Kiefer

Responding to pressure from law enforcement agencies, state lawmakers introduced a bill last week that would allow police officers to use force to stop people from fleeing when police detain them on suspicion of a crime. Currently, police can only use force when they have enough evidence to arrest a person.

During a public hearing Tuesday, dozens of commenters, including local and national police accountability advocates, testified against the bill, arguing that it would escalate otherwise minor confrontations between police and civilians. The bill’s supporters, most of them police, argue that the change is necessary to prevent criminal suspects from running away from police with impunity. Looming over the debate, however, is a 1968 US Supreme Court decision that could be the largest obstacle to the bill’s passage and, if it becomes law, spark a new fight over the constitutional limits on use of force by police.

The bill, sponsored by Rep. Roger Goodman (D-45, Kirkland), would have two key effects. First, it would define “physical force” in state law for the first time, a change supported by both police accountability advocates and police themselves, as well as the state attorney general’s office. Second, and more controversially, the bill would allow police to use force when someone runs away from a so-called “investigative detention,” a type of police stop that only requires an officer to suspect a person of a crime, a lower standard than having probable cause for arrest.

The bill is part of a broader effort by Goodman and other Democratic lawmakers to revisit and refine a set of sweeping police reform bills that passed in 2021. This year’s bills, which also includes a proposal to allow officers to use force to detain people for involuntary mental health treatment, are a response to a year’s worth of backlash from law enforcement and Republican lawmakers, who claim the reforms have emboldened criminals and hamstrung police. The most controversial of last year’s police reform laws outlined a strict standard for when police can use force, allowing force only when officers have probable cause to make an arrest or when necessary to prevent a serious physical injury to themselves or another person.

“We know people of color and young people are more likely to be stopped, and we know they’re more likely to run away, even when they haven’t done anything, because they are intimidated by police officers.”—Enoka Herat, ACLU of Washington

Goodman’s proposal to allow police to use force to stop someone from running away from an investigative stop wouldn’t restore a power that police had before 2021. Instead, it would allow police to use “reasonable” force in an entirely new context after attempts to de-escalate a situation have failed. “Irrespective of the situation, police cannot use excessive force,” Goodman said. “That isn’t changing.”

Police accountability advocates, however, say allowing police to use force to stop someone from running away from an investigative stop is a recipe for trouble. “Hinging the law on flight from a stop is especially problematic,” said Enoka Herat, a police policy specialist with the ACLU of Washington, “because we know who it would harm. We know people of color and young people are more likely to be stopped, and we know they’re more likely to run away, even when they haven’t done anything, because they are intimidated by police officers.” Herat also warned that the bill might give officers too much leeway to decide what counts as “fleeing,” making it difficult for civilians to successfully sue officers for using force inappropriately.

Goodman sees his proposal as a middle ground between protecting civilians and allowing police to enforce the law. He argues that since state law still allows police officers to use force to arrest someone for obstruction of justice, a crime that can include running away from an investigative stop, his proposal would make it possible for fleeing suspect to avoid adding an arrest for obstruction to their record, if police decide they did not commit any crime.

Brian Smith, the Chief of the Port Angeles Police Department, also testified on Tuesday that Goodman’s bill could help resolve the “angst and confusion” that has made some officers unwilling to arrest suspects for obstruction when they try to flee a stop; officers would more frequently prevent people from running away from stops, he said, if they could use force more freely.

Goodman also believes that his bill carefully avoids coming into conflict with a landmark 1968 US Supreme Court decision known as Terry v. Ohio, in which the court ruled that while police can detain someone based on suspicion alone, they can’t use force during the stop. In Goodman’s view, that rule ceases to apply when a person tries to run away from police. Civil liberties organizations like the ACLU disagree. According to Herat, if the bill becomes law, it could set off a court battle about its constitutionality.

Meanwhile, the bill’s definition of “physical force,” which currently includes contact as minor as grabbing a person’s arm to stop them from walking away, may also change as the bill moves through the legislature.

Goodman’s other efforts to refine last year’s police reforms have drawn much wider support from both law enforcement and police accountability groups, including a bill that would explicitly permit officers to use force to help detain people for involuntary mental health treatment.

Since the last year’s restrictions on police uses of force took effect, law enforcement agencies across the state have argued that they are unable to adequately intervene in mental health crisis calls, especially if the person in crisis has not committed a crime that gives officers probable cause to make an arrest and use force.

Although Interim Seattle Police Chief Adrian Diaz argued that the laws were not an excuse for police to stop responding to mental health crisis calls, uncertainty about the new rules for using force spurred many Seattle police officers to take a hands-off approach to crisis calls; as a result, the number of people detained by SPD officers for involuntary treatment declined sharply after the law took effect last July. While groups like the ACLU questioned other law enforcement agencies that cited last year’s laws as a reason to not intervene in mental health crises, they are backing Goodman’s proposal to settle the issue.

Police accountability advocates are also backing a bill, sponsored by Goodman, that would explicitly allow police officers to carry all “less-lethal” alternatives to firearms. Some Washington police departments interpreted a 2021 law that set a 50-caliber limit for police weapons as prohibiting some less-lethal weapons, including 12-gauge shotguns used to fire beanbag rounds. Because those weapons are used in lieu of live ammunition to disarm some people experiencing mental health crises, Goodman’s proposal has the backing of some accountability groups.

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