YAKIMA, Wash. -- Like many police officers and prosecutors, Yakima Police Sgt. Ira Cavin believes police officers who use deadly force should get a bit more leeway than civilians in the same situation.
Cavin, also Yakima Police Patrolmans Association president, said police officers are expected to put themselves in dangerous situations where they may have to shoot and kill someone in order to protect themselves or others, and the law should reflect that.
He speaks from personal experience.
“When you have 10, 15 seconds to decide how to handle a (dangerous) situation ... you have to find a way to end it,” said Cavin, who fatally shot a man who rammed police cars during a pursuit in 2014.
Cavin and other Yakima County law enforcement officials said a new law requiring prosecutors to evaluate a police officer’s actions based on what a reasonable officer would do in the situation is an acceptable way to address accountability while shielding police from what they say could be prosecution for innocent mistakes.
And a local attorney who has represented the family of a man shot by Yakima police four years ago said the law, a compromise between law enforcement and activists who presented an initiative addressing the issue to the Legislature, is a good first step but more should be done to establish trust between police and the public.
Since January 2014, nine people were fatally shot by local law enforcement officers, including two within hours of each other in December. In all but the most recent cases, the shootings were deemed justified by the Yakima County Prosecuting Attorney’s Office, although one of the cases resulted in a $500,000 payment to settle a wrongful death lawsuit.
The most recent cases are still under investigation.
Statewide, 80 people were shot and killed by police between 2015 and 2017.
In response to officer-involved shootings, the group De-Escalate Washington gathered enough signatures to submit Initiative 940 to the Legislature. In addition to requiring officers take training in how to de-escalate confrontations and work with people who are mentally ill, I-940 strikes the malice standard from the law: No longer would prosecutors have to prove an officer’s malicious intent when using deadly force.
In its place, the initiative proposed good-faith tests, evaluating whether the officer honestly believed he or she was justified to use lethal force, and if a reasonable officer would have done the same thing in those circumstances.
It also proposed that police agencies not investigate their own officers in shooting cases.
But groups such as the Washington Association of Sheriffs and Police Chiefs have argued that what the initiative proposes opens police officers to prosecution for honest mistakes.
It’s a view shared by local law enforcement officials.
“What we are looking for is a separate standard for officers doing their professional duties,” said Yakima County sheriff’s Chief Criminal Deputy Bob Udell. “They shouldn’t be subjected to the same standard as a citizen.”
Udell and Yakima County Prosecuting Attorney Joe Brusic said officers are required to go into dangerous situations and defend people, and sometimes that requires using lethal force.
While there is a need to hold officers accountable for an unjustified shooting, Brusic said the standard shouldn’t be so low that officers are reluctant to use their weapons — or even go to work — for fear they will be prosecuted.
As a compromise between police and the initiative’s supporters, lawmakers passed both the initiative and House Bill 3003, which adopts most of the points of the initiative, except it limits the good-faith standard to just measuring the officer’s actions against what a hypothetical “reasonable officer” would do in identical circumstances. It passed the House on a 73-25 vote, and on a narrow 25-24 margin in the Senate, where some senators questioned the constitutionality of the agreement to keep the initiative off the ballot if the law passed.
The current version of the bill, which Gov. Jay Inslee signed Thursday, goes into effect only if the initiative is withdrawn from the ballot. If it does go to voters, HB3003 would be revoked. Initiative supporters are backing the new law as it will help hold police accountable for their actions.
In the House, Reps. Tom Dent, R-Moses Lake; Bruce Jenkin, R-Prosser; Norm Johnson, R-Yakima; Matt Manweller, R-Ellensburg; and Terry Nealey, R-Dayton voted in favor of the bill, while Bruce Chandler, R-Granger; Gina McCabe, R-Goldendale; and David Taylor, R-Moxee opposed it. Senators Curtis King, R-Yakima; Jim Honeyford, R-Sunnyside; Judy Warnick, R-Moses Lake; and Maureen Walsh, R-College Place, all voted against it.
The initiative also passed in both houses.
Brusic said the objective good-faith standard in HB3003 is the one he has used when he’s evaluated officer-involved shootings, and found that the shootings were justified. He said there has only been one case in the state in recent years where a prosecutor believed a shooting was done in malice, and that case ended in the officer’s acquittal.
Cavin said the objective good-faith standard is better for judging officers.
“Hindsight is always 20/20,” Cavin said. “We want to make sure it is a good-faith standard.”
If that standard is not applied, Udell said people are unlikely to become police officers or stay in the profession because of the possibility of going to jail for doing one of the more dangerous parts of their jobs.
Udell said officers do not look forward to having to use lethal force, and it proves to be stressful for those who do.
“In the back of an officer’s mind, they know what is going to happen,” Udell said. “They’re not going to be called a hero. There’s administrative leave, investigations and depositions.”
And even if there is no criminal charge, an officer can still be sued civilly for using lethal force.
Earlier this year, the city of Yakima paid $500,000 to settle a wrongful-death lawsuit filed by the family of Rocendo Arias, who was fatally shot by Officer Casey Gillette at an East Nob Hill Boulevard car wash in January 2014. Gillette claimed that Arias lunged at him with a gun when Gillette checked on him as he was sleeping in a car parked at the car wash.
Arias’ family alleged that Arias — who was holding an orange-tipped Airsoft pistol on his lap — was shot in the head as he slept in the car.
Bill Pickett, who represented Arias’ family, supports both measures in the Legislature but only as a first step in reforming the process. While the measures call for outside agencies to investigate officer-involved shootings, Pickett said the only way to have a truly objective investigation is to have a civilian review board look over the case and recommend whether prosecutors should file charges.
While Pickett has criticized Yakima police in the past for investigating their own officers’ shootings, he said having another police agency does not completely eliminate the potential professional bias a police officer would have investigating a colleague.
“Citizens don’t carry that bias,” Pickett said. “Too often, we neglect citizens in the process.”
Involving the public would increase accountability in the process, Pickett said, as well as counterbalance a prosecutor’s potential bias for officers his or her office works with regularly.
But it’s not an idea that sits well with Brusic and Udell. Civilians, they said, lack the training and experience to handle such an investigation.
They say police officers in the area have proved themselves capable of investigating their colleagues,
and the county has already taken steps to form a joint special investigations unit to provide an unbiased review of officer-involved shootings.
The unit brings in officers from various agencies to look at the evidence and make a report to prosecutors.
Cavin said another difference in the newly passed law compared with the initiative is the requirement for officers to perform first aid on people shot by officers as soon as it is safe to do so. The initiative proposed rendering first aid immediately after the shooting.
Cavin said Yakima police officers already are trained to render medical help to people who are shot, but they also have to make sure the scene is safe before shifting into the role of medical responders.