By Paul Kiefer

The state Senate voted on Friday to allow police officers to use force to stop people from fleeing when police stop them on suspicion of a crime. The legislation was a sticking point in the legislature’s efforts to revisit and refine a set of sweeping police reform bills that passed last year, including a rule that officers can only use force when they have probable cause to make an arrest.

This year’s bill, sponsored by Rep. Roger Goodman (D-45, Kirkland) drew criticism from national police accountability organizations and split the Senate Democratic caucus. Some police accountability advocates argued the bill gives police permission to use force in situations that don’t call for it.

Goodman initially introduced the bill in response to pressure from law enforcement agencies around the state, who argued that last year’s reforms, which required officers to have probable cause to make an arrest before using force, unintentionally limited police officers’ ability to stop and question people while allowing suspects to simply run away from police when stopped for questioning.

In crafting this year’s bill, lawmakers had to step carefully around a 1968 US Supreme Court decision, Terry v. Ohio, in which the court ruled that while police can detain someone based on suspicion alone, they can’t use force during such stops. The bill specifically focused on the right for police force to stop someone from walking away from officers during a stop, which law enforcement groups argued would not run afoul of the ruling.

Steve Strachan, director of the Washington Association of Sheriffs and Police Chiefs, told PubliCola that so-called “investigative stops” usually end with officers letting a suspect walk away. “Most investigative stops I’ve done in my law enforcement career have ended with, ‘thank you, I appreciate the information and you’re free to go,” he said.

Since the legislature adopted stricter rules for when police can use force in 2021, Strachan added, officers have “felt unsure of what to do if the person they’re trying to talk to—a person who may have been involved in a domestic violence incident, for example—starts walking away.” As a result, Strachan said, officers have increasingly opted not to stop people who attempt to flee questioning.

There is no statewide data to demonstrate that pattern, and while Seattle Police Department data shows that officers made fewer investigative stops in the six months after the 2021 rules took effect than in the previous six months, that decline began at the start of the pandemic, during which SPD has seen hundreds of its officers retire or transfer to other law enforcement agencies.

In Strachan’s view, Goodman’s bill was an attempt to find an “appropriate balance” between enabling police to hold suspects for questioning and prohibiting officers from using excessive force to do so; the bill stipulated that officers could only use “reasonable and proportional” force to stop a person from fleeing from a stop, which Strachan called a “productive guardrail for accountability.”

But civil liberties groups say the new law will enable law enforcement to escalate otherwise minor encounters with civilians, possibly with deadly consequences. “There was already case law that would allow officers to use force to stop someone from fleeing if there’s a danger to the officer or the public, like if there’s reason to believe that a person is armed,” said Enoka Herat, the Police Practices and Immigration Counsel at the ACLU of Washington. “But this law opens the door wider than that. … It gives officers more leeway to harm people, and it makes it harder to hold them accountable when they do escalate an encounter.”

Sen. Jamie Pedersen (D-43, Seattle) attempted to assuage some accountability advocates’ concerns with an amendment specifying that officers could only use force to stop someone from “intentionally” fleeing an officer if they were suspected of a criminal, rather than a civil, offense. “It didn’t make us entirely supportive of the bill,” Herat said, “but it offered a chance to add some useful guardrails.” The amendment didn’t pass.

Instead, lawmakers passed a version of the bill that allows police to use force to stop people from fleeing any investigative stop. While some Democratic senators, including Sen. Reuven Carlyle (D-36, Seattle) voted in favor of the bill alongside senate Republicans, the progressive wing of the Democratic caucus voted in opposition, including Sen. Manka Dhingra (D-45, Kirkland), the chair of the senate’s Law and Justice Committee, as well as Pedersen and Sen. David Frockt (D-46, Seattle). If Governor Jay Inslee signs the bill into law, it will take effect immediately.

Police accountability advocates have no immediate plans to challenge the bill in court. But Herat noted that the bill may still come into conflict with the US Supreme Court’s decision in Terry v. Ohio, setting the stage for a possible legal battle about whether it allows officers to use force unconstitutionally. “[The ACLU] will be keeping an eye out to see if officers use force in a way that’s permitted by the bill but not by the US constitution,” she said.