Use of “physical force” by law enforcement

AGO 2022 No. 1 - Jan 20 2022

Attorney General Bob Ferguson

LAW ENFORCEMENT—POLICE—SHERIFF—Use of “physical force” by law enforcement

The term “physical force” is not defined in E2SHB 1310 or in the law more generally, and therefore there is significant uncertainty as to its meaning. The most natural reading of the statute’s plain language is that physical force includes all acts by officers that involve violence, compulsion, or constraint used against another person’s body, even if it is unlikely to cause pain or injury. However, physical touch that occurs in the course of rendering aid would generally not be physical force, provided the individual receiving assistance is not resisting.
While the answer is unclear, the more likely reading of E2SHB 1310 is that officers may only use physical force under the circumstances listed in the statute. Therefore, the statute precludes an officer from using physical force in the context of an investigatory detention based solely on reasonable suspicion, even if the individual does not comply with the request to stop.
In light of our answer to your second question, we conclude that officers may use physical force to take a person into custody under RCW 71.05, RCW 13.34, and RCW 43.185C only if they can articulate a permissible use of force specified in E2SHB 1310. In many cases, however, physical force may be justified under that statute to “protect against an imminent threat of bodily injury” when an officer takes someone into custody under these other statutes.

January 20, 2022

The Honorable Roger Goodman
State Representative, District 45
PO Box 40600
Olympia, WA 98504

The Honorable Jesse Johnson
State Representative, District 30
PO Box 40600
Olympia, WA 98504

Cite As:
AGO 2022 No. 1

Dear Representatives Goodman and Johnson:

By letter previously acknowledged, you have requested our opinion on the following questions:

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What constitutes “physical force” in the context of the standard in Engrossed Second Substitute House Bill 1310, 67th Leg., Reg. Sess. (Wash. 2021) (E2SHB 1310)?
Does the standard in E2SHB 1310 preclude an officer from using physical force in the context of an investigatory detention (based on reasonable suspicion and not probable cause) when it becomes apparent that an individual will not otherwise comply with the request to stop?
In light of the standard in E2SHB 1310, are the provisions of RCW 71.05, RCW 13.34, RCW 43.185C, and other statutes and court orders (civil or criminal) authorizing or directing a law enforcement officer to take a person into custody to be interpreted as authorizing the officer to use physical force when necessary for that purpose?
In light of the standard in E2SHB 1310, is a law enforcement officer authorized to use physical force pursuant to the emergency aid doctrine, where there is no “imminent threat of bodily injury to the officer, another person, or the person against whom force is being used”? Does using physical force in this manner breach a legal duty to leave the scene, and would an officer’s efforts constitute an exception to the Public Duty Doctrine under the rescue doctrine?
Read together, does section 3(3) of E2SHB 1310 effectively authorize a law enforcement officer to use a chokehold or neck restraint “to protect against his or her life or the life of another person from an imminent threat” despite the specific prohibition of such tactics in section 2 of Engrossed Substitute House Bill 1054, 67th Leg., Reg. Sess. (Wash. 2021)?
How should the terms “possible,” “available,” and “appropriate” in section 3 of E2SHB 1310 be interpreted? Should those terms be interpreted according to their common definitions or according to the “reasonable officer” standard established under Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), which provides that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”? Id. at 396.

In the interest of providing you answers as quickly as possible, we are answering your questions on a rolling basis. This opinion addresses only the first three questions; the remainder will follow separately. We also note that a separate group of legislators requested our opinion on ten additional questions relating to these same bills. We will address those questions after finishing your request. See Letter from Representative Skyler Rude et al. to Attorney General Bob Ferguson (Sept. 16, 2021).

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BRIEF ANSWERS

We begin by emphasizing that the answers to all of your questions are extremely difficult. Reasonable minds disagree about the correct legal conclusions. We give our best legal answers for them here, but must acknowledge that these answers are debatable and uncertain.

In light of this uncertainty, for the following reasons we strongly urge the Legislature to clarify its intent regarding these important questions.

First, these bills address profoundly important topics regarding policing, and issues that can literally constitute matters of life and death. Consequently, legislative clarity in this area is especially important. Indeed, the Washington State Supreme Court emphasizes that uncertainty in the law around policing harms “both effective police enforcement and also protection of individual rights.” State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986), overruled on other grounds by State v. Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009)).

Second, it is important to remember that although “[o]pinions of the Attorney General are entitled to considerable weight,” they are not binding on courts. Washington Fed’n of State Emps., Council 28, AFL-CIO v. Off. of Fin. Mgmt., 121 Wn.2d 152, 164, 849 P.2d 1201(1993). Courts “give less deference to such opinions when they involve issues of statutory interpretation,” as here. Id. Thus, while we have expended great effort to answer your legal questions (and will continue to do so for the roughly dozen remaining questions on these topics from legislators), we cannot provide definitive guidance to law enforcement or the public about the meaning of this important legislation.

The purpose of an Attorney General Opinion is to answer legal questions as best we can— not to make policy suggestions. Accordingly, we take no position here on how the Legislature should amend these statutes. But for the reasons just stated, it is important that the Legislature clarify its intent as to these issues. Turning to your specific questions:

1. Physical force is undefined in E2SHB 1310 and has no standard definition in the law enforcement context, which leads to significant uncertainty in answering this question. Though the Legislature’s specific intent is unclear, we believe the most natural reading of the statute’s plain language is that physical force includes all acts by officers that involve violence, compulsion, or constraint used against another person’s body. There is a reasonable argument that this term should be read to exclude physical force that is unlikely to cause pain, harm, or injury, but ultimately we do not see a basis in the existing statute to impose those limitations. We therefore conclude that the better reading of the statute as written is that physical force would include force even if it is unlikely to cause pain, harm, or injury. However, physical touch that occurs in the course of rendering aid is generally not physical force, provided the individual receiving assistance is not resisting. In addition, this broad definition of physical force does not necessarily lead to a broad risk of civil liability or officer decertification, because those consequences may only be imposed if an individual proves they suffered physical injury due to an officer’s conduct.

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2. E2SHB 1310 provides a list of four circumstances in which officers are authorized to use physical force (and then restricts the scope of that force in various ways). It is unclear whether the Legislature intended for that list to be an exclusive list of when force may be used, or rather to simply list circumstances in which force is authorized. That lack of clarity leads to significant uncertainty in answering many of your remaining questions. Ultimately, we conclude that the better reading of the statute is that the list is intended to be exclusive. We therefore conclude that officers may only use physical force when one of the four situations authorizing physical force in the legislation is present. That means that unless one of those circumstances is present, E2SHB 1310 precludes an officer from using physical force in the context of an investigatory detention, even if the individual does not comply with the request to stop.

3. In light of our answer to your second question, we conclude that officers may use physical force to take a person into custody under RCW 71.05, RCW 13.34, and RCW 43.185C only if they can articulate a permissible use of force specified in E2SHB 1310. In many cases, physical force may be justified to “protect against an imminent threat of bodily injury” when an officer takes someone into custody under these statutes.

FACTUAL BACKGROUND

E2SHB 1310 (Bill 1310) was signed into law by the Governor on May 18, 2021. It became effective on July 25, 2021, and is codified in RCW 10.120.010-030, 43.101.450 (as amended), and 43.101.490. [1] It establishes a civil standard for uses of physical force by peace officers. [2] It establishes a duty of reasonable care in the use of force. This duty requires officers to exhaust available and appropriate de-escalation tactics prior to using any physical force (when possible), use the least amount of force necessary to overcome resistance, and terminate the physical force as soon as the necessity for it ends. It also establishes situations where deadly force is permissible, as well as imposing a duty of reasonable care with regard to deadly force.

Bill 1310 includes statutory language describing the intent behind the legislation. This language states that:

The Legislature recognizes that additional clarity is necessary following the passage of Initiative Measure No. 940 (chapter 1, Laws of 2019) and Substitute House Bill No. 1064 (chapter 4, Laws of 2019). The Legislature intends to address excessive force and discriminatory policing by establishing a requirement for law enforcement and community corrections officers to act with reasonable care when carrying out their duties, including using de-escalation tactics and alternatives to deadly force. Further, the Legislature intends

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to address public safety concerns by limiting the use of deadly force to very narrow circumstances where there is an imminent threat of serious physical injury or death. It is the intent of the Legislature that when practicable, peace officers will use the least amount of physical force necessary to overcome actual resistance under the circumstances.

It is the fundamental duty of law enforcement to preserve and protect all human life.

Laws of 2021, ch. 324, § 1.

The new legislation identifies situations where police officers may use physical force. “Except as otherwise provided under this section, a peace officer may use physical force against a person when necessary to: Protect against criminal conduct where there is probable cause to make an arrest; effect an arrest; prevent an escape as defined under RCW 9A.76; or protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” RCW 10.120.020(1)(a). The legislation also specifies that “[a] peace officer
may use deadly force against another person only when necessary to protect against an imminent threat of serious physical injury or death to the officer or another person.” RCW 10.120.020(1)(b). For purposes of subsection (1)(b) addressing deadly force, the legislation provides three
definitions. First, “ ‘[i]mminent threat of serious physical injury or death’ means that, based on the totality of the circumstances, it is objectively reasonable to believe that a person has the present and apparent ability, opportunity, and intent to immediately cause death or serious bodily injury to the peace officer or another person.” RCW 10.120.020(1)(b)(i). Second, “ ‘[n]ecessary’ means that, under the totality of the circumstances, a reasonably effective alternative to the use of deadly force does not exist, and that the amount of force used was a reasonable and proportional response to the threat posed to the officer and others.” RCW 10.120.020(1)(b)(ii). Third, “ ‘[t]otality of the circumstances’ means all facts known to the peace officer leading up to and at the time of the use of force, and includes the actions of the person against whom the peace officer uses such force, and the actions of the peace officer.” RCW 10.120.020(1)(b)(iii).

Bill 1310 also establishes a duty of reasonable care. “A peace officer shall use reasonable care when determining whether to use physical force and when using any physical force against another person.” RCW 10.120.020(2). “To that end, a peace officer shall: (a) [w]hen possible,
exhaust available and appropriate de-escalation tactics prior to using any physical force, such as: Creating physical distance by employing tactical repositioning and repositioning as often as necessary to maintain the benefit of time, distance, and cover; when there are multiple officers, designating one officer to communicate in order to avoid competing commands; calling for additional resources such as a crisis intervention team or mental health professional when possible; calling for back-up officers when encountering resistance; taking as much time as necessary, without using physical force or weapons; and leaving the area if there is no threat of imminent harm and no crime has been committed, is being committed, or is about to be committed[.]” RCW 10.120.020(2)(a). A peace officer shall also “use the least amount of physical force necessary to overcome resistance under the circumstances” when using physical force. RCW 10.120.020(2)(b). This includes “a consideration of the characteristics and conditions of a person for the purposes of determining whether to use force against that person and, if force is

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necessary, determining the appropriate and least amount of force possible to effect a lawful purpose.” Id. The legislation lists characteristics and conditions that may be considered, such as whether the person is pregnant, a minor, a vulnerable adult, has impairments or disabilities, is under the influence of drugs or alcohol, is suicidal, has limited English proficiency, or is in the presence of children. Id. Peace officers must “[t]erminate the use of physical force as soon as the necessity for such force ends; [w]hen possible, use available and appropriate less lethal alternatives
before using deadly force; and [m]ake less lethal alternatives issued to the officer reasonably available for their use.” RCW 10.120.020(2)(c)-(e).

Finally, Bill 1310 states that “A peace officer may not use any force tactics prohibited by applicable departmental policy, this chapter, or otherwise by law, except to protect his or her life or the life of another person from an imminent threat.” RCW 10.120.020(3).

ANALYSIS

1. What constitutes “physical force” in the context of the standard in E2SHB 1310?

Bill 1310 does not define physical force. The term is similarly undefined when used in other unrelated Washington statutes. See, e.g., RCW 11.130.085 (involving guardianships or conservatorships); RCW 9.46.195 (involving the administration or enforcement of gambling law); RCW 9A.44.010(6) (physical force is part of the definition for “forcible compulsion”).

Given that “physical force” is undefined, a court would likely interpret the term according to its plain meaning. Johnson v. United States, 559 U.S. 133, 138, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010) (“[the statute] does not define ‘physical force,’ and we therefore give the phrase its ordinary meaning”) (citation omitted); Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507 (1990) (“undefined terms . . . must be given their ‘plain, ordinary, and popular’ meaning”) (quoting Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 73, 549 P.2d 9 (1976)). But this is complicated because courts have acknowledged that “physical force” is susceptible to more than one meaning depending on the context, see Johnson, 559 U.S. at 139, and there is no generally accepted definition of “physical force” in the law enforcement context. [3] We are therefore left to rely initially on general definitions of these words.

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The applicable dictionary definition of “physical” is “of or relating to the body.” Physical, Merriam-Webster.com, https://merriam-webster.com/dictionary/physical (last visited Jan. 19, 2022). The applicable dictionary definition of “force” is “violence, compulsion, or constraint exerted upon or against a person or thing.” Force, Merriam-Webster.com, https://merriamwebster.com/dictionary/force (last visited Jan. 19, 2022). This implies that physical force means an act by a peace officer that involves “violence, compulsion, or constraint exerted upon or against a person[’s]” body. [4] We further look to definitions of these included terms to clarify what actions are covered by “force.” See Compel, Merriam-Webster.com, https://merriamwebster.com/dictionary/compel (last visited Jan. 19, 2022) (to compel is to “drive or urge forcefully or irresistibly” or “to cause to do or occur by overwhelming pressure”); Constraint, Merriam-Webster.com, https://merriam-webster.com/dictionary/constraint (last visited Jan. 19, 2022) (“the state of being checked, restricted, or compelled to avoid or perform some action”); Constrain, Merriam-Webster.com, https://merriam-webster.com/dictionary/constrain (last visited Jan. 19, 2022) (“to force by imposed stricture, restriction, or limitation; to secure by or as if by bonds; to force or produce in an unnatural or strained manner; or to hold back by or as if by force”).

The dictionary definitions of force comport with other persuasive definitions. For example, the American Law Institute defines “force” in the policing context as “physically touching a person or object either directly or indirectly . . . in order to control or restrain a person, or to seize, examine, or damage property.” American Law Institute, Principles of the Law, Policing § 5.02 Revised TD No. 1, at 32, comment a (2017), https://www.ali.org/media/filer_public/f2/80/f2804962-6431-4535-9649-34… (noting that this definition is “consistent with both judicial rulings and state and federal statutes”). The consent decree settlement agreement between the City of Seattle and the Department of Justice defines force similarly. “Use of force” is defined as “any physical coercion used by an officer in performance of official duties including De Minim[i]s, Type I, II, and II uses of force.” United States v. City of Seattle, Settlement Agreement and Stipulated [Proposed] Order of Resolution, 2:12-cv-01282, at 12 ¶ 67. [5] “De Minim[i]s Force,” the type least likely to cause injury, is defined as “physical interactions, for a lawful purpose, between an officer and a member of the public meant to separate, guide, and/or control without resort to control techniques that are intended to or are reasonably likely to cause pain. Examples include using hands or equipment to stop, push back, separate, or escort and the use of compliance holds without the use of sufficient force to cause pain.” Id at 7, ¶ 29.

Under the plain meaning of the statutory term, certain actions obviously qualify as physical force. Any “violent” action against a person’s body, such as striking a person, would clearly qualify. But “force” also includes compulsion or constraint. This would cover, for example, actions

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such as using hands to hold someone in place to prevent them from leaving a scene, which is a “constraint” upon a person’s body. Constraint, Merriam-Webster.com, https://merriamwebster.com/dictionary/constraint (last visited Jan. 19, 2022) (“the state of being checked, restricted, or compelled to avoid or perform some action”). Similarly, involuntarily placing someone in handcuffs involves “restriction,” and “secur[in]g as if by bonds.” See Constrain, Merriam-Webster.com, https://merriam-webster.com/dictionary/constrain (last visited Jan. 19, 2022). Tactics used to control and restrain individuals, such as control holds and joint manipulation techniques, would fall under this definition as well. See, e.g., Tatum v. City and County of San Francisco, 441 F.3d 1090, 1093 (9th Cir. 2006) (officer’s use of a control hold was reasonable and not excessive force when he “positioned Fullard’s left arm behind his back in a bar arm control hold . . . [the officer] then used the bar arm control hold to force Fullard to the ground”); M.H. v. County of Alameda, 62 F. Supp. 3d 1049, 1069 (N.D. Cal. 2014) (where officer “grabbed [an individual’s] right hand and used a joint manipulation technique to rotate [his] right wrist around to the small of [his] back” so as to handcuff him). These tactics all involve the use of force to restrain, hold back, or limit individuals from acting as they would otherwise.

At the other end of the spectrum, physical force is unlikely to be “satisfied by the merest touching,” because its definitions “suggest a degree of power.” Johnson, 559 U.S. at 139. The dictionary definition of physical force implies an effort to overcome some form of resistance, or at least a limitation of a person’s free will to act as they would like. Therefore, actions that don’t involve placing limitations on someone, but are intended to aid, would likely not be considered physical force. For example, assisting someone up from the ground who has fallen or is impaired, while it is “of or relating to the body” and involves energy used to prop them up, would not be “force” because the officer is not seeking to restrain or control that individual, and the individual presumably is not seeking to remain on the ground. Similarly, picking up a small child to transport them to a secure location would in most instances not be considered force. However, efforts to render aid might, in some circumstances, cross over into physical force where individuals are resisting and officers continue in their efforts to force them into positions or situations that theydon’t want to be in. But even if a person in need of aid resists that aid, force may still be justifiable if one of the four prongs of Bill 1310 is met, such as using force to protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used. RCW 10.120.020(1)(a).

Between these two extremes lies a large grey area. For example, the role that consent plays under the statute is unclear. As we have noted, the dictionary definition of physical force suggests some limitation on one’s ability to act as they would like. That suggests that if an individual voluntarily submits to a constraint, such as by volunteering their arms to be handcuffed, no physical force has been used. But legislative clarification of this issue would be helpful because interactions between officers and the public generally always involve a degree of power and constraint given that officers are imbued with a great deal of authority. Someone may appear to “consent” to being handcuffed by not resisting, but they may believe they have no other choice. Washington courts have held that “[a]n encounter between a citizen and the police is consensual if a reasonable person under the circumstances would feel free to walk away.” State v. Harrington, 167 Wn.2d 656, 663-64, 222 P.3d 92 (2009) (citing United States v. Mendenhall, 446 U.S. 544,

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554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). In many circumstances, “consenting” to handcuffs or a frisk for weapons does not mean the individual feels free to leave. Id. at 669-70 (“[w]hen [the officer] requested a frisk . . . [a] reasonable person would not have felt free to leave due to the officers’ display of authority”). These factors make us very uncertain what the Legislature intended as to situations where a person seems to “consent” to being constrained by law enforcement.

We acknowledge that other reasonable minds have proposed an understanding of “physical force” under Bill 1310 that differs from ours. In particular, some have suggested that handcuffing, control holds, and simple restraints should not be considered physical force because they are unlikely to cause harm. The Criminal Justice Training Commission (CJTC), the entity charged with providing use of force training under Bill 1310, currently defines “physical force” as “[a]ny technique or tactic reasonably likely to cause transient pain and/or injury.” [6] Generally, courts give
substantial weight to an agency’s interpretation of a law, especially when the issue falls within the agency’s expertise. See Southwick, Inc. v. Dep’t of Licensing, 191 Wn.2d 689, 695, 426 P.3d 693 (2018). However, courts are not bound by an agency’s interpretation of Bill 1310, and could determine that the plain language of the statute requires a different result. Accordingly, while we cannot rule out the possibility that the Legislature may have intended that narrower meaning, we see no limiting language in the statute or dictionary definitions to indicate that physical force only
includes actions that result in harm or injury. The dictionary definition of “force” includes terms like “compulsion” and “constraint” that do not necessarily involve pain or injury, and the word “physical,” while clarifying that the force is “of or relating to the body,” says nothing about limiting force to situations likely to cause pain or injury. And in other legal contexts, Washington courts do not require force to include pain or injury. See, e.g., City of Pasco v. Ross, 39 Wn. App. 480, 483, 694 P.2d 37 (1985) (“The terms ‘violence’ and ‘force’ are synonymous when used in relation to assault, and include any application of force, even though it entails no pain, bodily harm, or serious injury.”) (citations omitted); accord United States v. Werle, 815 F.3d 614, 621 (9th Cir. 2016). Without limiting language in Bill 1310, construing physical force narrowly to exclude certain forms of force risks reading in language that the Legislature may not have intended. Presumably, the Legislature was aware it could specify certain uses of force if it had wanted to. See H.B. Analysis of H.B. 1310, 67th Leg., Reg. Sess. (Wash. Jan. 29, 2021) (“Law enforcement agencies and correctional facilities typically adopt policies on the use of force, including the types of force allowed and when force may be used.”) (emphasis added). [7] Without a legislative articulation of where a different line should be drawn, we believe force should be given its plain meaning. And as a practical matter, while less violent forms of force are less likely to cause harm, they might still cause harm in some contexts. See, e.g., C.B. v. City of Sonora, 769 F.3d 1005, 1031

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(9th Cir. 2014) (holding that compliant handcuffing of an 11-year-old that caused pain and left red marks was excessive force because it was “completely unnecessary and excessively intrusive” given the context).

One might also argue that a plain language interpretation does not align with the legislative intent of Bill 1310, which includes as a goal to “preserve and protect all human life.” Laws of 2021, ch. 324, § 1; Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 435, 395 P.3d 1031 (2017) (“[w]hen interpreting a statute, the court’s fundamental objective is to ascertain and give effect to the legislature’s intent.”); see also Food Servs. of Am. v. Royal Heights, Inc., 123 Wn.2d 779, 788, 871 P.2d 590 (1994) (“[a] statutory statement of intent can be crucial to the interpretation of a statute.”). That argument would be that the intent of the bill is to limit police force that results in death or serious bodily injury, so actions unlikely to cause harm should not be included in the understanding of “physical force.” The drafters of Bill 1310, however, did not limit the reach of the bill to uses of deadly force. Instead, the Bill categorizes deadly force separately, and places no restrictions on what falls within physical force.

Finally, some might argue that our interpretation of physical force would lead to liability for officers even where their use of force has not resulted in physical harm. But a broad definition of physical force does not necessarily lead to civil liability or officer decertification. Bill 1310 establishes a statewide civil standard that, for litigation purposes, is most relevant when establishing that an officer breached the duty of reasonable care in a tort claim. Yet plaintiffs must also prove injury, which implies that less dangerous forms of physical force are less likely to lead to liability. Mancini v. City of Tacoma, 196 Wn.2d 864, 879, 479 P.3d 656 (2021) (quoting Ehrhart v. King County, 195 Wn.2d 388, 396, 460 P.3d 612 (2020)). Additionally, Engrossed Second Substitute S.B. 5051, 67th Leg., Reg. Sess. (Wash. 2021) (E2SSB 5051), which establishes standards for oversight of peace officers, requires the CJTC to revoke a peace officer’s certification if an officer was “found by a court to have engaged in[] the use of force which resulted in death or serious injury and the use of force violated the law[.]” RCW 43.101.105(2)(b) (emphasis added). The CJTC may also use its discretion to revoke or suspend certification when an officer “[e]ngaged in a use of force that could reasonably be expected to cause physical injury, and the use of force violated the law or policy of the officer’s employer[.]” RCW 43.101.105(3)(e) (emphasis added). Therefore, while a broad definition of physical force comports with the intent of the legislation, it does not imply that de minimis uses of force will result in civil liability or decertification for officers.

For these reasons, we conclude that physical force means an act by a peace officer that involves “violence, compulsion, or constraint exerted upon or against a person[’s]” body. This includes physical interactions meant to restrain, hold back, and/or control individuals, even if unlikely to cause pain or injury. But we acknowledge the uncertainty of this conclusion and we urge the Legislature to clarify its intent given the importance of these issues.

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2. Does the standard in E2SHB 1310 preclude an officer from using physical force in the context of an investigatory detention (based on reasonable suspicion and not probable cause) when it becomes apparent that an individual will not otherwise comply with the request to stop?

Bill 1310 states that “a peace officer may use physical force against a person when necessary to: Protect against criminal conduct where there is probable cause to make an arrest; effect an arrest; prevent an escape as defined under RCW 9A.76; or protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” RCW 10.120.020(1)(a). The overarching question underlying your specific question is whether the four permissible uses of force listed in the statute are the only situations where peace officers may use force, or rather if officers may use force in other situations not listed in the statute when carrying out their duties. The answer to this question is extremely important to understanding the meaning of Bill 1310 and the limits it imposes, but unfortunately again is unclear. While we ultimately conclude that the Legislature likely intended the list in RCW 10.120.020(1)(a) to be an exclusive list of when force may be used, it is a very close question. We urge the Legislature to clarify this point.

We will begin by explaining why we ultimately conclude that the list in RCW 10.120.020(1)(a) is meant to be exclusive, including discussing three factors that make that conclusion unclear. We will then apply the statute as we understand it to the situation you describe.

As always in statutory interpretation, we start with the bill’s text. Bill 1310, as noted above, states that “a peace officer may use physical force against a person when necessary to . . .” and then lists four situations. RCW 10.120.020(1)(a). This language initially appears susceptible to two possible interpretations: (1) that this is an exhaustive list of when force may be used, or (2) that this list is not exclusive but rather provides specific circumstances when force is affirmatively authorized. The latter reading initially seems implausible: why would the Legislature have gone to the trouble of affirmatively authorizing force in some circumstances if it were also allowed in others? Moreover, when the Legislature intends for a list in a statute to be only illustrative, rather than exclusive, the Legislature knows how to use phrases such as “examples,” “illustrative factors,” “similar,” or “like.” See In re Postsentence Review of Leach, 161 Wn.2d 180, 185-86, 163 P.3d 782 (2007). And in fact, the Legislature did exactly that later in this same section of Bill 1310, when it used the phrase “such as” to clearly signal that a list was meant to be illustrative rather than exhaustive. RCW 10.120.020(2)(a).

Reading the list as exclusive also seems more aligned with the Legislature’s intent in enacting Bill 1310. The bill’s intent was to establish a requirement for peace officers to act with reasonable care, limit officers’ use of deadly force to “very narrow circumstances,” and when practicable, require peace officers to use the least amount of physical force necessary. Laws of 2021, ch. 324, § 1. These intent statements strongly suggest that Bill 1310 seeks to limit the circumstances where officers may use physical force. But if the list in RCW 10.120.020(1)(a) were read to be illustrative, rather than exhaustive, then the provision would not do anything to narrow the circumstances in which physical force is allowed. While the provision might still serve some

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purpose by clarifying circumstances in which use of physical force is explicitly allowed, reading it to achieve only that narrow goal seems contrary to the Legislature’s overarching intent and to some indications in the legislative history. For example, a staff summary of public testimony on Bill 1310 states that “[t]he bill establishes a new statewide standard that limits physical force to only certain circumstances[.]” H.B. Rep. on Engrossed Second Substitute H.B. 1310, 67th Leg., Reg. Sess. (Wash. 2021). [8] Similarly, Representative Johnson stated during a House Public Safety Committee that “this bill replaces the current arrest law with a new statewide standard that limits the use of force to certain circumstances[.]” Hr’g on H.B. 1310 Before the H. Public Safety Comm., 67th Leg., Reg. Sess. (Wash. Jan. 29, 2021), at 16:38, audio recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/house-public-safety-committee-2021011480/?eventID… (Testimony of Rep. Johnson ).

Thus, based on Bill 1310’s text and intent, it initially seems clear that the list of when force may be used in RCW 10.120.020(1)(a) is meant to be exclusive. But three factors complicate this analysis.

The first factor making it unclear whether the list in RCW 10.120.020(1)(a) is meant to be exclusive is a textual one. Bill 1310’s limitations on use of force in section 3 are divided into two parts: (1)(a), which discusses use of force generally, and part (1)(b), which discusses use of deadly force. Part (1)(b) says that “[a] peace officer may use deadly force against another person only when necessary to protect against an imminent threat of serious physical injury or death to the officer or another person” (emphasis added). By contrast, (1)(a) says that “a peace officer may use physical force against a person when” one of the four circumstances described above is present. Normally, the use of “only” in one subsection and its omission in the immediately preceding subsection would be strong evidence that the Legislature intended a difference in meaning, with one being an exclusive list and the other illustrative. See, e.g., Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669, 680, 389 P.3d 476 (2017) (“[W]here the legislature includes particular language in one section of a statute but omits it in another, the exclusion is presumed intentional.”).

Here, however, we are not convinced that this difference evidences a difference in legislative intent between the two subsections. To begin with, there are conflicting textual cues because, as noted above, later in the same section the Legislature used the phrase “such as” to clearly signal that a list was meant to be illustrative rather than exhaustive. RCW 10.120.020(2)(a). So while it is true that the omission of “only” may signal a difference in intent, so too does the omission of “such as” or similar language. We therefore think the omission of “only” is too thin of a reed to support reading the list as illustrative rather than exhaustive, especially considering the apparent legislative intent. Moreover, earlier versions of the bill did not create two separate sections addressing physical force and deadly force, but rather treated both subjects in one paragraph, with the phrasing: “a peace officer may use physical force . . . when necessary to . . . [a] peace officer may use deadly force against another person only as a last resort when necessary to . . . .” H.B. 1310 (Original Bill). In subsequent changes to the bill, this language

[original page 13]

was broken into two subsections and “as a last resort” was removed, which left “only” as a modifier in front of “when necessary to” in 3(1)(b). Compare H.B. 1310, 67th Leg., Reg. Sess. (Wash. 2021) [9] with Substitute H.B. 1310, 67th Leg., Reg. Sess. (Wash. 2010). [10] It thus seems quite possible that the linguistic difference between the two subsections was an unintentional relic of the drafting process, rather than an intentional effort to take a different approach.

The second factor making it unclear whether the list in RCW 10.120.020(1)(a) is meant to be exclusive comes from looking at Washington statutes as a whole. There are a number of statutes scattered throughout state law that seem to presume ability of police to use force in some circumstances not necessarily covered by the list in RCW 10.120.020(1)(a).

While we discuss these statutes in more detail below, see infra at 16, one example will suffice here. RCW 43.185C.260 authorizes law enforcement officers to take minors into custody if they are away from home without parental consent and in some other circumstances. While taking a minor into custody may not always involve use of physical force, in enacting RCW 43.185C.260 the Legislature presumably assumed that in at least some circumstances the minor might not willingly comply and some degree of force would be necessary. Yet reading the list in RCW 10.120.020(1)(a) as exclusive would seem to prohibit use of force in some of the circumstances where an officer is allowed to take a child into custody under RCW 43.185C.260.

As this example illustrates, reading the list in RCW 10.120.020(1)(a) as exclusive arguably constrains law enforcement use of force in ways the Legislature may not have intended or contemplated. But as further detailed below, while the exclusive reading of this provision creates some tension with these other provisions, we think they can be reconciled, and we do not think this tension is sufficient to override the textual and intent indications described above.

The third factor complicating the exclusive reading of RCW 10.120.020(1)(a) is that certain statutes addressing officer use of force were not amended or eliminated by Bill 1310. One such statute is RCW 9A.16.020, which states that force is not unlawful when “necessarily used by a public officer in the performance of a legal duty” or “used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person.” RCW 9A.16.020(1), (6). We address this statute in more detail below, see infra at 20, and explain that Bill 1310 establishes a civil standard for liability, while RCW 9A.16.020 is a defense to criminal liability. Given the different purposes of the two statutes, we do not assume that the Legislature’s failure to amend RCW 9A.16.020 in Bill 1310 means that Bill 1310’s list of authorized uses of force is simply illustrative.

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We urge legislative clarification because this is a very close question. We ultimately conclude that the list in RCW 10.120.020(1)(a) is probably meant to be exclusive. We now proceed to answer your specific question based on that understanding.

Your question asks about physical force in the context of investigative stops. These stops, also known as Terry stops, allow a peace officer to “briefly, and without warrant, stop and detain a person they reasonably suspect is, or is about to be, engaged in criminal conduct.” State v. Day, 161 Wn.2d 889, 895, 168 P.3d 1265 (2007); Terry v. Ohio, 392 U.S. 1, 22-23, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The standard of reasonable suspicion to justify a brief detention is lower than probable cause. See State v. Doughty, 170 Wn.2d 57, 63, 239 P.3d 573 (2010); see also Terry, 392 U.S. at 22. The brief, investigative detention must be “reasonably related to the purposes of the stop” and the “physical intrusion and the length of time” must be limited. State v. Mecham, 186 Wn.2d 128, 138, 380 P.3d 414 (2016) (plurality) (citation omitted); State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009) (“Without probable cause and a warrant, an officer is limited . . . [h]e cannot arrest a suspect; he cannot conduct a broad search.”) (citation and internal quotation marks omitted). Once an officer has briefly detained someone, they may conduct a limited frisk for weapons if they reasonably believe their safety or that of others is endangered. Garvin, 166 Wn.2d at 250 (citing Day, 161 Wn.2d at 895).

To answer your specific question, because we read the list of when Bill 1310 authorizes physical force as exclusive, and because the bill does not authorize use of force based solely on reasonable suspicion, we conclude that the bill precludes an officer from using physical force in the context of an investigatory detention where that detention is based solely on reasonable suspicion and not probable cause. There are three important caveats to keep in mind about this conclusion, however.

First, this does not mean that Bill 1310 prohibits Terry stops; it simply limits the use of physical force during such stops. When an officer engages in a Terry stop where an individual is not free to leave, this constitutes a “seizure.” State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004) (citing State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997)). A “seizure” occurs when “by means of physical force or a show of authority, [an individual’s] freedom of movement is retrained.” Mecham, 186 Wn.2d at 137 (emphasis added) (citation omitted). Officers may still use a show of authority, without resorting to physical force, to conduct a Terry stop. But under Bill 1310, if the individual refuses to comply with the request to stop, the officer generally cannot use physical force unless the officer has probable cause to make an arrest or one of the other three allowable bases applies.

Second, there may be circumstances that occur during or related to a Terry stop that allow an officer to use physical force separate from the probable cause standard. For example, Bill 1310 allows use of force to “protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” RCW 10.120.020(1)(a). Whether this standard is met is a separate question from whether the officer has probable cause to believe that a crime has been, is being, or is about to be committed.[original page 15]

Finally, without relying on the Terry stop standard, officers may engage in a “social contact” where they approach someone and request to talk to them or see identification. Harrington, 167 Wn.2d at 664-665; State v. Flores, 186 Wn.2d 506, 521, 379 P.3d 104 (2016). “[N]ot every encounter between a police officer and a citizen is an intrusion requiring an objective justification.” State v. Young, 135 Wn.2d 498, 511, 957 P.2d 681 (1998) (quoting United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). At this stage, a seizure under the Fourth Amendment or Article I, Section 7 of the Washington State Constitution has not yet occurred. Young, 135 Wn.2d at 511 (“‘[A] police officer’s conduct in engaging a defendant in conversation in a public place and asking for identification does not, alone, raise the encounter to an investigative detention’”) (quoting State v. Armenta, 134 Wn.2d at 11). Of course, during such a discussion, the officer could not use physical force unless one of the conditions in Bill 1310 were satisfied.

Some have suggested that when an individual refuses to comply with a Terry stop, they are engaging in the crime of obstruction, thus providing probable cause to arrest and justifying use of force under Bill 1310. Under the relevant Washington statute, “[a] person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.” RCW 9A.76.020. But courts interpret the charge of obstruction narrowly, and require it to be based on conduct, rather than pure speech or refusal to cooperate. State v. E.J.J., 183 Wn.2d 497, 354 P.3d 815 (2015); City of Shoreline v. McLemore, 193 Wn.2d 225, 438 P.3d 1161 (2019) (plurality); State v. D.E.D., 200 Wn. App. 484, 494, 402 P.3d 851 (2017) (“As a general proposition, there is no obligation to cooperate with the police . . . [r]efusing to provide information to the police does not constitute obstructing a law enforcement officer”) (citations omitted). In D.E.D., the Court of Appeals held that resistance to handcuffing when a suspect is not under arrest during a Terry stop was not obstruction. D.E.D., 200 Wn. App. at 496. The court stated that “where the suspect is personally the target of the investigative detention, we think the lack of obligation to assist the police precludes the use of the obstructing statute to enforce cooperation . . . [t]he legislature has only imposed a duty to cooperate with a lawful arrest.” Id. (emphasis in original). Accordingly, it is unlikely that a court would find a person committed obstruction by refusing to comply with an officer’s request to stop; however, obstruction could be met if this passive resistance was more active or involved additional conduct. Id. (declining to address whether “[m]ore active resistance” to a Terry stop could be considered obstruction). Without further facts, we take no position as to whether the elements of obstruction could be met for individuals refusing to comply with a Terry stop, but note that courts generally require active resistance or conduct beyond pure speech or refusal to cooperate.

In sum, we conclude that the standard in Bill 1310 precludes an officer from using physical force in the context of an investigatory detention, even if the individual does not comply with the request to stop, unless one of the four situations authorizing physical force in the Bill is met.

[original page 16]

3. In light of the standard in E2SHB 1310, are the provisions of RCW 71.05, RCW 13.34, RCW 43.185C, and other statutes and court orders (civil or criminal) authorizing or directing a law enforcement officer to take a person into custody to be interpreted as authorizing the officer to use physical force when necessary for that purpose?

Our answer to your second question largely dictates our answer to this question. Because we conclude that the list of circumstances in which force is authorized under RCW 10.120.020(1)(a) is exclusive, we conclude that the statutes you ask about here provide no independent basis to use force. That said, this conclusion is uncertain for the same reasons explained in our answer to your second question. And it is important to recognize that in many circumstances covered by the statutes you reference, some degree of physical force will likely be authorized under Bill 1310.

Turning to specifics, your question asks about several statutes that authorize or direct peace officers to “take a person into custody.” As a threshold matter, the statutes you mention do not directly conflict with Bill 1310. While Bill 1310 limits the use of physical force, it does not explicitly limit the ability of peace officers to take persons into custody; officers still may do so without the use of physical force, or with the use of physical force when allowed under Bill 1310. Meanwhile, RCW 71.05, RCW 13.34, and RCW 43.185C do not include any language that would require the use of force. Instead, they permit or in some instances require officers to take individuals into custody if certain conditions are met.

A conflict could arise in practice if an officer is attempting to take an individual into custody under one of these existing statutes and the individual resists. In that situation, the officer cannot use force unless the requirements of Bill 1310 are met. If those requirements are not met, it is possible that the individual may be able to walk away or leave the scene.

While we recognize this potential conflict, we still believe the better reading of Bill 1310 is that it provides an exclusive list of when force may be used, for the reasons explained in our answer to question 2. One might argue that the preexisting statutes are specific statutes that would control over the more general language in Bill 1310. Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, 165 Wn.2d 275, 309, 197 P.3d 1153 (2008) (“Furthermore, if the general statute was enacted after the specific statute, [a] court will construe the original specific statute as an exception to the general statute, unless expressly repealed.”). However, the “general-specific rule” of statutory interpretation likely does not apply here because Bill 1310 and the custodial caretaking statutes do not substantially overlap.

As a matter of statutory construction, courts attempt to harmonize statutes governing the same subject matter in pari materia. Id. at 308 (citing Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 146, 18 P.3d 540 (2001) (emphasis added)). Courts applying the general-specific rule are generally faced with a general statute that includes the same subject matter as the specific statute, or where the two statutes substantially overlap. See, e.g., id. at 308 (comparing the general Growth Management Act (GMA) to the specific Energy Facility Site Locations Act, which both involve land use and development); Univ. of Wash. v. City of Seattle, 188 Wn.2d 823, 833, 399 P.3d 519

[original page 17]

(2017) (comparing the general GMA to a statute regarding control of University of Washington buildings); Am. Legion Post No. 149 v. Dep’t of Health, 164 Wn.2d 570, 588-91, 192 P.3d 306 (2008) (comparing multiple statutes regulating smoking); Wark v. Wash. Nat’l Guard, 87 Wn.2d 864, 867, 557 P.2d 844 (1976) (comparing a general state tort claims statute to a specific statute providing a remedy for militiamen injured in the course of duty). That is not the case here—Bill 1310 does not include the same subject matter as RCW 71.05, RCW 13.34, or RCW 43.185C; one does not encompass the other; and the statutes do not substantially overlap. In fact, it would be difficult to articulate which statute is the specific statute, as one could also argue that Bill 1310 is more specific than RCW 71.05, RCW 13.34, or RCW 43.185C.

Rather than the general-specific rule, a court would likely turn to the rule of statutory construction that when two statutes present an apparent conflict, the “more recently enacted statute is preferred.” Am. Legion Post No. 149, 164 Wn.2d at 586 (citing Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000)). This supports our conclusion that Bill 1310 is best understood to impose restrictions on the use of force when an officer is acting under RCW 71.05, RCW 13.34, RCW 43.185C, or related statutes and court orders. However, there are a number of instances that may arise under these statutes where physical force may still be available to officers because the requirements of Bill 1310 are met.

First, some of these provisions may fall under the statutory language allowing physical force in Bill 1310 where the officer needs to “protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” For example, RCW 71.05, known as the Involuntary Treatment Act (ITA), authorizes peace officers to assist a Designated Crisis Responder in detaining and placing an individual in an appropriate facility when that individual “presents an imminent likelihood of serious harm, or is in imminent danger because of being gravely disabled[.]” RCW 71.05.153(1) and (2)(a)(i); see also RCW 71.05.150(2)(a) and (4) (similar process under court order). Peace officers may also take or cause someone to be taken into custody when they have reasonable cause to believe that such person is suffering from a behavioral health disorder and meets the imminent likelihood of serious harm or gravely disabled standards. RCW 71.05.153 (2)(a)(ii).

The pertinent question is thus whether the standard under the ITA, “presents an imminent likelihood of serious harm, or is in imminent danger because of being gravely disabled,” falls within the permissible use of force under Bill 1310 where the officer needs to “protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” RCW 10.120.020(1)(a). The ITA provides definitions for “imminent,” “likelihood of serious harm,” and “gravely disabled.” “Imminent” is defined in the ITA as “the state or condition of being likely to occur at any moment or near at hand, rather than distant or remote[.]” RCW 71.05.020(28). “Likelihood of serious harm” is defined as:

(a) A substantial risk that: (i) Physical harm will be inflicted by a person upon his or her own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on oneself; (ii) physical harm will be inflicted by a person upon another, as evidenced by behavior which has caused such harm or which places another person or persons in

[original page 18]

reasonable fear of sustaining such harm; or (iii) physical harm will be inflicted by a person upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others; or (b) The person has threatened the physical safety of another and has a history of one or more violent acts[.]

RCW 71.05.020(36). “Gravely disabled” is defined as:

a condition in which a person, as a result of a behavioral health disorder: (a) Is in danger of serious physical harm resulting from a failure to provide for his or her essential human needs of health or safety; or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety[.]

RCW 71.05.020(24) (emphasis added).

Given these definitions, Bill 1310 may very often allow use of force if reasonably necessary to take someone into custody under the ITA. Bill 1310 allows use of force to protect against an “imminent threat of bodily injury”. RCW 10.120.020(1)(a). If an individual “presents an imminent likelihood of serious harm, or is in imminent danger because of being gravely disabled,” they are at imminent threat of bodily injury either to themselves or others, unless the serious harm under the ITA is solely to property of others (as included in RCW 71.05.020(36)(a)(iii)). Therefore, if someone meets the harm standards in the ITA other than harm to the property of others, peace officers are likely able to use physical force (so long as it meets the duty of reasonable care) to take the person into custody. The same analysis applies to the juvenile ITA, RCW 71.34. See RCW 71.34.351 (delivery of a minor to treatment facilities). [11]

As for the second statute explicitly mentioned, RCW 13.34.055 requires a law enforcement officer to “take into custody a child taken in violation of RCW 9A.40.060 or 9A.40.070.” RCW 9A.40.060, custodial interference in the first degree, may in some instances involve the imminent threat of bodily injury. A relative or parent of a child is guilty of custodial interference in the first degree if, in part, they expose the child “to a substantial risk of illness or physical injury[.]” RCW 9A.40.060(1)(b), (2)(b). Depending on the context, the risk of harm could be imminent. Relatedly, a law enforcement officer may place a child in custody without a court order, in part, when there is probable cause to believe that the child is abused and neglected and would be injured if the law enforcement officer were to first obtain a court order pursuant to RCW 13.34. RCW 26.44.050. There is thus likely an imminent threat of bodily injury when a law enforcement officer places a child in custody pursuant to RCW 26.44.050. Additionally, under RCW 13.34.050(1), a “court may enter an order directing a law enforcement officer . . . to take a child into custody” when a petition alleges that “the child’s health, safety, and welfare will be seriously endangered if not taken into custody,” an accompanying declaration shows reasonable

[original page 19]

grounds that the child’s health, safety, and welfare will be seriously endangered if not taken into custody and at least one of the grounds provided demonstrates “a risk of imminent harm to the child,” and the court determines that “the child’s health, safety, and welfare will be seriously endangered if not taken into custody.” For purposes of the statute, “imminent harm” includes, but is not limited to “circumstances of sexual abuse, sexual exploitation . . . and a parent’s failure to perform basic parental functions, obligations, and duties as the result of substance abuse[.]” RCW 13.34.050(1)(b). A risk of “imminent harm” under the statute could obviously entail a threat of imminent bodily injury in many circumstances. Therefore, some situations where a law enforcement officer takes custody of a child under RCW 13.34 could involve imminent threats of bodily injury, thus allowing peace officers to use physical force when necessary, taking into account the statutory duty of reasonable care.

For the third statute mentioned, RCW 43.185C, the statute requires a law enforcement officer to take a child into custody in three specific circumstances: (a) “[i]f a law enforcement agency has been contacted by the parent of the child that the child is absent from parental custody without consent”; (b) if the officer “reasonably believes, considering the child’s age, the location, and the time of day, that a child is in circumstances which constitute a danger to the child’s safety or that a child is violating a local curfew ordinance”; or (c) “[i]f an agency legally charged with the supervision of a child has notified a law enforcement agency that the child has run away from placement.” RCW 43.185C.260. Similar to RCW 13.34, some of these circumstances could involve an imminent threat of bodily injury to a child, thus allowing officers to use physical force (though some of course would not).

One might argue that detaining an individual in order to take them into some form of custody under one of these statutes would legally qualify as an arrest, therefore allowing physical force to “effect an arrest” under Bill 1310. An arrest occurs when an officer “manifests an intent to take a person into custody and actually seizes or detains such person.” State v. Patton, 167 Wn.2d 379, 387, 219 P.3d 651 (2009) (citation and internal quotation marks mitted). The plain language of Bill 1310 arguably supports a broad definition of “arrest” that would cover civil custody. In the statute, “effect an arrest” does not include a qualifier requiring that probable cause must be involved, nor that the arrest must be criminal in nature. Given that the previous term in the list is “where there is probable cause to make an arrest,” if “effect an arrest” is limited to probable cause situations, it might be redundant if it was limited to those situations.

However, Washington courts that have examined related issues have not determined that civil custody, also described as civil detention, is legally considered an arrest. State v. Dempsey, 88 Wn. App. 918, 924, 947 P.2d 265 (1997) (“A search incident to a civil detention is not limited by Terry considerations”); State v. A.A., 187 Wn. App. 475, 481-82, 349 P.3d 909 (2015) (analyzing whether a search conducted after an officer took a juvenile into civil custody under RCW 43.185C.260 (former RCW 13.32A.050) is analogous to a search incident to arrest). And expanding the meaning of “arrest” to include civil detentions could raise significant constitutional concerns. A.A., 187 Wn. App. 475, 488 (holding that “in the context of a warrantless search stemming from noncriminal conduct, the search must be limited in scope . . . and ‘strictly’ relevant to the community caretaking function”); State v. Lowrimore, 67 Wn. App. 949, 956, 841 P.2d 779

[original page 20]

(1992) (for purposes of searches incident to civil detention, “there is a basic difference between criminal detentions and civil detentions and, therefore, the rules of the former do not routinely apply to the latter”). Courts in other jurisdictions are divided on this issue in the context of whether civil custody allows officers to search the individual under the search incident to arrest doctrine. Some courts do conclude that civil custody is akin to an arrest. See, e.g., State v. Collins, 2002 Utah App 253, 53 P.3d 953, 957 (2002) (“A person being placed in civil protective custody can expect to be searched the same as an individual who is placed in criminal arrest custody.”). But far more courts conclude the opposite, given that an arrest without probable cause typically infringes on constitutional protections. [12] Thus, to conclude that civil custody is legally an arrest would not be well-supported by existing case law and would raise constitutional concerns, and we see no reason to think the Legislature meant the “arrest” language in Bill 1310 to cover the civil custody statutes discussed above.

One could also argue that RCW 9A.16.020, a statute providing defenses to criminal liability, authorizes officers to use reasonable force, when necessary, to carry out other legal duties that existed prior to Bill 1310’s passage. See, e.g., RCW 9A.16.020(1), (6) (force is not unlawful when “necessarily used by a public officer in the performance of a legal duty” or “used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person”) (emphasis added). [13] One could support this argument by pointing out that the Legislature presumably would have repealed statutes it viewed as conflicting with Bill 1310; in fact, Bill 1310 does overrule some statutes, such as RCW 10.31.050. But it leaves RCW 9A.16.020 intact. See State v. Conte, 159 Wn.2d 797, 808, 153 P.3d 194 (2007). Peace officers may have a legal duty, albeit a discretionary one, to assist with detaining individuals under the Involuntary Treatment Act. See Strange v. Spokane County, 171 Wn. App. 585, 598-99, 287 P.3d 710 (2012) (a “legal duty” under RCW 9A.16.020(1) may include statutory obligations that involve the exercise of discretion). However, Bill 1310

[original page 21]

establishes a civil standard for liability, while RCW 9A.16.020 is a defense to criminal liability. Early versions of Bill 1310 included a new standard for criminal liability, but that language was later dropped. Given that RCW 9A.16.020 is a defense to criminal liability, it likely does not apply to authorize police actions in a civil context. See Seattle Police Officers’ Guild, 17 Wn. App. 2d at 47 (“Whether an individual officer should be held criminally or civilly liable for the use of force is an entirely different question than whether there exists an explicit, dominant, and well-defined policy condemning the use of excessive force in policing.”); H.B. Analysis of H.B. 1310, at 2 (“The U.S. Constitution and related civil case law do not address criminal liability of peace officers engaging in excessive force. Crimes are based in statute, existing independently from civil lawsuits and with different standards. Whether a peace officer is criminally liable for using force depends on the specific crime alleged and any applicable defense.”). [14]

Finally, even if force is unavailable to an officer to take someone into custody pursuant to RCW 71.05, RCW 13.34, or RCW 43.185C, a law enforcement officer may still take a person into custody without using physical force. As noted above, a seizure may occur by physical force or show of authority. Mecham, 186 Wn.2d at 137. De-escalation tactics, show of authority, and verbal instructions may all suffice to detain someone under these statutes.

Our conclusion that these other statutes provide no independent basis for using force appears to better align with the intent of the bill than would an alternative reading. Spokane County v. Dep’t of Fish & Wildlife, 192 Wn.2d 453, 461-62, 430 P.3d 655 (2018) (“legislative history supports our [plain language] conclusion”). Public testimony indicated that one of the concerns motivating Bill 1310 was that force is often used against people experiencing mental health crises or individuals with disabilities. See, e.g., Hr’g on E2SHB 1310 Before the S. Law & Justice Comm., 67th Leg., Reg. Sess. (Wash. Mar. 16, 2021), at 2:8:46, audio recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/senate-law-justice-committee-2021031275/?eventID=… (Testimony of Darya Fariva, Disability Rights WA) (testifying that “in all of the law enforcement fatal interactions and incidents I cannot recall an incident where the victim did not identify as having a disability or display behavior during that interaction that suggested a mental health issue”). Furthermore, the Legislature rejected an amendment that would have authorized peace officers to use physical force when necessary to “act in a community caretaking capacity” and “act when authorized pursuant to Chapter 71.05 RCW, Chapter 13.34 RCW, other state law, or court order.” Amendment 707 By Senator Holy, E2SHB 1310, 67th Leg., Reg. Sess. (Wash. 2021). [15] Our reading, that Bill 1310 limits the use of force when taking individuals into custody under the civil statutes you ask about, best furthers the statute’s overarching goal of preserving and protecting lives.

To conclude, while the answer is uncertain, we believe the better reading of the statute is that officers may not use physical force unless authorized under one of the four permissible

[original page 22]

grounds in Bill 1310. However, these four permissible uses may be present when officers enforce other statutes authorizing or requiring them to take individuals into custody, in particular when there is an imminent threat of bodily injury. Even without using force, officers can use de-escalation tactics, show of authority, and verbal instructions to take individuals into custody under these statutes.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

NOAH PURCELL
Solicitor General

ALEXIA DIORIO
Assistant Attorney General

lrv

[1] In addition to adding and amending these sections, E2SHB 1310 repealed RCW 10.31.050 (Officer may use force). Laws of 2021, ch. 324, § 7.

[2] “ ‘Peace officer’ includes any ‘general authority Washington peace officer,’ ‘limited authority Washington peace officer,’ and ‘specially commissioned Washington peace officer’ as those terms are defined in RCW 10.93.020; however, ‘peace officer’ does not include any corrections officer or other employee of a jail, correctional, or detention facility, but does include any community corrections officer.” RCW 10.120.010(3).

[3] For example, law enforcement manuals use widely varied definitions of what constitutes “force.” See, e.g., Seattle Police Dep’t Manual, Title 8.050, Use of Force Definitions (2021), https://www.seattle.gov/policemanual/title-8---use-of-force/8050---use-… (defining force as “[a]ny physical coercion by an officer in performance of official duties, including . . . de minimis force” and three other categories); Spokane Police Dep’t Policy Manual, Policy 300, Use of Force (2017), https://static.spokanecity.org/documents/police/accountability/spduse- of-force-policy.pdf (defining “Force” as “Any effort towards detention or control.”); Yakima Police Dep’t Manual, Policy 300, Use of Force (2020), https://yakimapolice.org/assets/Yakima-Police-Department-Policy- Manual.pdf (defining “Force” as “The application of physical techniques or tactics, chemical agents or weapons to another person. It is not a use of force when a person allows him/herself to be searched, escorted, handcuffed or restrained.”).

[4] In some situations, a legal definition may be more appropriate than a standard dictionary. Kitsap County v. Allstate Ins. Co, 136 Wn.2d 567, 576, 964 P.2d 1173 (1998) (citing Boeing, 113 Wn.2d at 882) (unless it is clear that a legal, technical meaning should apply, the plain, ordinary meaning will prevail). However, the legal definition here is similar: force is “[p]ower, violence or pressure directed against a person or thing.” Force, Black’s Law Dictionary (11th ed. 2019). “Physical force” is also termed “actual force” which is defined as “[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim.” Id.

[5] Available at http://www.justice.gov/iso/opa/resources/407201283174056123976.pdf.

[6] Available at Criminal Justice Training Commission, Use of Force 3-3, at 2 (slide 3) (Jul. 21, 2021), https://wacities.org/docs/default-source/resources/cjtcuseofforcepart3p….

[7] Available at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bill%20Reports/Hous….

[8] Available at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bill%20Reports/Hous….

[9] Available at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/House%20Bills….

[10] Available at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/House%20Bills….

[11] Your question does not ask about the reasonable care standard in Bill 1310 and how it relates to the language in the ITA that governs civil and criminal liability for officers taking people into custody. RCW 71.05.120. Our opinion therefore expresses no view on how those statutes would be harmonized.

[12] See, e.g., State v. Klase, 131 N.E.3d 1054, 1064 (2019) (“the nature of a commitment” under the statute at issue “is not akin to an arrest. The purpose behind a police officer’s authorization to take a person into custody under [the statute] is not grounded in criminal law enforcement”); R.A.S. v. State, 141 So.3d 687, 689 (2014) (“truancy is not a crime, and a custodial detention for this purpose is not an arrest”); Lindsey v. State, 282 G. App. 644, 646, 639 S.E.2d 584 (2006) (holding that “not every taking of a person into custody by a peace officer constitutes an arrest” and the statute at issue authorized “civil protective custody, not a criminal arrest”); Cordell v. Weber, 673 N.W.2d 49, 56, 2003 S.D. 143 (2003) (“a civil detainee (as compared to a person under arrest) has a higher level of expectation of privacy in their personal items”); People v. Chaves, 855 P.2d 852, 854 (1993) (the statute at issue “distinguishes a person in protective custody from a person who has been arrested for allegedly committing a crime”).

[13] RCW 9A.16.020(1) only allows force that is “necessarily used.” The statute only authorizes force when necessary, and therefore would not permit unnecessary or excessive force. City of Seattle, Seattle Police Dep’t v. Seattle Police Officers’ Guild, 17 Wn. App. 2d 21, 47, 484 P.3d 485 (2021). If RCW 9A.16.020 does overlap with Bill 1310, there is an argument that force is only necessarily used when it is consistent with or authorized by Bill 1310. Furthermore, if officers do use necessary force to carry out a legal duty, the reasonable care duty of Bill 1310 would still require them to exhaust available and appropriate de-escalation tactics, use the least amount of force necessary (including considering an individual’s impairments or disabilities), and terminate the use of force as soon as the necessity ends.

[14] Available at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bill%20Reports/Hous….

[15] Available at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Amendments/Senate/1….