Use Of “Physical Force” By Law Enforcement

LAW ENFORCEMENT—POLICE—SHERIFF—Use Of “Physical Force” By Law Enforcement

4.         [a] Peace officers may not use physical force when providing emergency aid unless a statutorily-enumerated circumstance allowing officers to use force applies, such as that there is an imminent threat of bodily injury to the officer, another person, or the person against whom force is being used. [b] Leaving the scene is an option officers can consider when attempting to de-escalate a situation, but not a statutory duty. [c] E2SHB 1310 and subsequent amendments do not impact potential common law liability for officers who provide emergency aid.

5.         ESHB 1054 prohibits peace officers from using chokeholds and neck restraints. E2SHB 1310 removes civil liability and other consequences for officers using otherwise prohibited tactics such as these to save human life from imminent threat, but that does not mean that such tactics are authorized.

6.         The undefined terms “possible,” “available,” and “appropriate” in E2SHB 1310 and subsequent amendments would likely be interpreted according to their plain meaning or commonly-understood definitions. Nothing in the text or legislative history of E2SHB 1310 indicates that the legislature intended to incorporate the Graham “reasonable officer” standard into the terms of the law, and in fact the legislative history indicates the opposite.

January 2, 2023

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 2023 No. 1

Dear Representatives Goodman and Johnson:

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

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1.         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?

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?

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?

4.         [a]        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 peace officer, another person, or the person against whom force is being used”?

            [b]       Does using physical force in this manner breach a legal duty to leave the scene?

            [c]        Would an officer’s efforts constitute an exception to the public duty doctrine under the rescue doctrine?

5.         Read together, does section 3(3) of E2SHB 1310 effectively authorize a law enforcement officer to use a chokehold or neck restraint “to protect 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) (ESHB 1054)?

6.         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, 396, 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”?

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            In the interest of providing you answers as quickly as possible, we are answering your questions on a rolling basis. We answered your first three questions January 20, 2022.^[1] This opinion addresses the last three questions. We also note that a separate group of legislators requested our opinion on ten additional questions relating to these same bills, though that request has been modified after the recent legislative session. See Letter to Robert Ferguson, Attorney General, State of Washington, from Skyler Rude, Representative, State of Washington, et al. (Sept. 16, 2021); Letter to Skyler Rude, Representative, State of Washington, et al. from Jeffrey Even, Deputy Solicitor General, State of Washington, et al. (Apr. 26, 2022 (confirming withdrawal of eight questions). We will address those questions after finishing your request.

BRIEF ANSWERS

            As we noted in our previous Opinion addressing the first three questions, the answers to your questions are extremely difficult because reasonable minds disagree about the correct legal conclusions. We provide legal answers for them here, but must acknowledge that these answers are debatable and uncertain.

            As you know, 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. Additionally, the purpose of an Attorney General Opinion is to answer legal questions as best we can given the status of the law as it currently exists. Opinions of the Attorney General do not express the views of the Attorney General about what the law should be.

            This past year, the legislature made a series of changes to E2SHB 1310 and related legislation that clarified, in part, the legislature’s intent behind some of the questions asked in this Opinion request. While your questions pertain to E2SHB 1310, we have incorporated these recent amendments where applicable. Turning to your specific questions:

            4.         Your fourth question pertains to when law enforcement officers provide emergency aid. Subsequent amendments to E2SHB 1310 emphasize that while officers are limited in their ability to use physical force, officers are not prohibited from continuing to engage in community caretaking functions such as providing emergency aid, especially where physical force is not exercised. See Laws of 2022, ch. 4, § 3(5). You ask three related questions, which we will address as 4[a], 4[b], and 4[c].

            First, in question 4[a], you ask whether an officer may use physical force pursuant to the emergency aid doctrine, where there is no “imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” In response to your prior questions, we concluded that E2SHB 1310 likely provides an exclusive list of circumstances in

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which officers are authorized to use physical force. While recent amendments add to that list, and may encompass some emergency aid situations, these new circumstances generally require statutory or court authorization to use force. Accordingly, peace officers may not use physical force when providing emergency aid if there is no imminent threat of bodily injury to the officer, another person, or the person against whom force is being used, and no other statutorily-enumerated circumstance allowing officers to use force applies.

 

            Question 4[b] asks whether using physical force in this manner breaches a legal duty to leave the scene. Prior to recent amendments, leaving the scene could have become a legal duty if it was a possible, available, and appropriate alternative to de-escalate a situation prior to the use of physical force. However, because the legislature purposefully removed this de-escalation tactic, it likely no longer imposes a duty on officers, and instead remains as simply one option for officers to consider when attempting to de-escalate a situation.

            Question 4[c] asks whether an officer’s efforts to provide emergency aid may fall under an exception to the public duty doctrine, which could expose the officer to tort liability if the officer breaches the duty of reasonable care. As was the case prior to E2SHB 1310, if an officer made assurances or provided assistance that induced reliance, and the officer did not act with reasonable care, an exception to the public duty doctrine could arise. E2SHB 1310 and subsequent amendments do not eliminate this potential liability.

            5.         ESHB 1054 prohibits peace officers from using chokeholds and neck restraints, while E2SHB 1310 removes civil liability if officers use otherwise prohibited tactics, such as these, in specific circumstances. This does not mean that chokeholds and neck restraints are authorized, but rather only that officers may not face civil liability or other consequences if they have used these prohibited tactics to save human life from an imminent threat.

            6.         The undefined terms “possible,” “available,” and “appropriate” in E2SHB 1310 and subsequent amendments would likely be interpreted according to their plain meaning or commonly-understood definitions. Nothing in the text or legislative history of E2SHB 1310 indicates that the legislature intended to incorporate the Graham “reasonable officer” standard into the terms of the law, and in fact the legislative history indicates the opposite.

FACTUAL BACKGROUND

            E2SHB 1310 (Bill 1310) was signed into law by the governor May 18, 2021. It became effective on July 25, 2021, and is codified in RCW 10.120.010-030, RCW 43.101.450 (as amended), and RCW 43.101.490.^[2] We described the bill in great detail in response to your prior questions, and will not reiterate the entire description here. In short, the bill establishes a civil

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standard for the use of physical force by peace officers^[3] and 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.

            In 2022, the legislature passed new legislation amending Bill 1310 and relevant provisions of the RCW. Substitute H.B. 1735, 67th Leg., Reg. Sess. (Wash. 2022) (Bill 1735) was signed into law by the governor March 4, 2022. It became effective immediately. Engrossed Substitute H.B. 2037, 67th Leg., Reg. Sess. (Wash. 2022) (Bill 2037) was signed into law by the governor March 17, 2022, and also became effective immediately. Both Bill 1735 and Bill 2037 were intended to provide clarification and guidance for police agencies and the public regarding the standard for use of force by peace officers established by Bill 1310. Laws of 2022, ch. 4, § 1(1); Laws of 2022, ch. 80, § 1(1).

a.         Statements of intent

            The 2022 legislation includes several statements of intent. Bill 1735 clarifies that Bill 1310 was not intended to limit peace officers’ authority to engage in community caretaking. Peace officers are not limited or restricted from using their “authority or responsibility to perform lifesaving measures or perform community caretaking functions to ensure health and safety including, but not limited to, rendering medical assistance, performing welfare checks, or assisting other first responders and medical professionals”; or from “responding to requests for assistance or service from first responders, medical professionals, behavioral health professionals, social service providers, designated crisis responders, shelter or housing providers, or any member of the public[.]”^[4] RCW 10.120.020(5)(a)-(b). Relatedly, Bill 1735 includes an intent section which states:

            The legislature intends for peace officers to continue performing the critical role of supporting those in crisis and assisting vulnerable members of our communities. The legislature does not intend to prevent or prohibit peace officers from protecting citizens from danger. The legislature recognizes that peace officers can and do perform these responsibilities while also maintaining the highest standards of safety and reasonable care expressed in RCW 10.120.020.

Laws of 2022, ch. 4, § 1(2). Bill 2037 also includes an overall statement of intent:

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            The legislature did not enact RCW 10.120.020 with the purpose of preventing or prohibiting peace officers from protecting citizens from danger. To the contrary, the legislature recognizes the importance of enforcing criminal laws and providing safety for all. Therefore, the legislature intends to provide clear authority for peace officers to use physical force to prevent persons from fleeing lawful temporary investigative detentions, also known as Terry stops, and to take persons into custody when authorized or directed by state law. Yet this authority is not without limits. Peace officers must exercise reasonable care when determining whether to use physical force and when using any physical force against another person. Peace officers must, when possible and appropriate, use de-escalation tactics before using physical force. Peace officers may only use force to the extent necessary and reasonable under the totality of the circumstances. This high standard of safety reflects national best practices developed and supported by police leaders across the nation. Most importantly, it strikes the appropriate balance between two important interests: The safety of the public and the peace officers who serve to protect us, and the right of the people to be secure in their persons against unreasonable searches and seizures.

Laws of 2022, ch. 80, § 1(2).

b.         Definitions

            The 2022 legislation provides several definitions that apply throughout the chapter. Relevant here, Bill 1735 moves language providing examples of de-escalation tactics to the definitions section, changes the examples provided, and notably removes the de-escalation tactic from Bill 1310 of “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.” Compare Laws of 2022, ch. 4, § 2(1) with Laws of 2021, ch. 324, § 3(2)(a). Bill 1735 also clarifies that the de-escalation tactics are not limited to the list provided, and the bill includes a new definition: “‘[d]e-escalation tactics’ refer to actions used by a peace officer that are intended to minimize the likelihood of the need to use force during an incident.” RCW 10.120.010(2).

            Additionally, “necessary” is defined as “under the totality of the circumstances, a reasonably effective alternative to the use of physical force or deadly force does not appear to exist, and the type and amount of physical force or deadly force used is a reasonable and proportional response to effect the legal purpose intended or to protect against the threat posed to the officer or others.” RCW 10.120.010(5). The term “physical force,” previously undefined in Bill 1310, is now defined as “any act reasonably likely to cause physical pain or injury or any other act exerted upon a person’s body to compel, control, constrain, or restrain the person’s movement. ‘Physical force’ does not include pat-downs, incidental touching, verbal commands, or compliant

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handcuffing where there is no physical pain or injury.”^[5] RCW 10.120.010(7). Finally, “totality of the circumstances” is defined as “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 10.120.010(8).

c.         Circumstances where peace officers may use physical force

            The legislation as amended lists circumstances where peace officers may use physical force. A peace officer may use physical force against a person to the extent necessary to:

            (a)        Protect against a criminal offense when there is probable cause that the person has committed, is committing, or is about to commit the offense;

            (b)        Effect an arrest;

            (c)        Prevent an escape as defined under chapter 9A.76 RCW;

            (d)       Take a person into custody, transport a person for evaluation or treatment, or provide other assistance under chapter 10.77, 71.05, or 71.34 RCW;

            (e)        Take a minor into protective custody when authorized or directed by statute;

            (f)        Execute or enforce a court order authorizing or directing a peace officer to take a person into custody;

            (g)        Execute a search warrant;

            (h)        Execute or enforce an oral directive issued by a judicial officer in the courtroom or a written order where the court expressly authorizes a peace officer to use physical force to execute or enforce the directive or order; or

            (i)         Prevent a person from fleeing or stop a person who is actively fleeing a lawful temporary investigative detention, provided that the person has been given notice that he or she is being detained and is not free to leave;

            (j)         Take a person into custody when authorized or directed by statute; or

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            (k)        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).

d.         Deadly force

            The legislation specifies that “a peace officer may use deadly force against another person only when necessary to protect against an immediate threat of serious physical injury or death to the officer or another person.” RCW 10.120.020(2). “‘Immediate 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(2).

e.         Duty of reasonable care

            The legislation establishes a duty of reasonable care. “A peace officer shall use reasonable care when determining whether to use physical force or deadly force and when using any physical force or deadly force against another person.” RCW 10.120.020(3). “To that end, a peace officer shall[, w]hen possible, use all de-escalation tactics that are available and appropriate under the circumstances before using physical force[.]” RCW 10.120.020(3)(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(3)(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 necessary, determining the appropriate and least amount of force possible to effect a lawful purpose.” RCW 10.120.020(3)(b). 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. RCW 10.120.020(3)(b). Peace officers must “[t]erminate the use of physical force as soon as the necessity for such force ends”; “[w]hen possible, use less lethal alternatives that are available and appropriate under the circumstances before using deadly force”; and “[m]ake less lethal alternatives issued to the officer reasonably available for his or her use.” RCW 10.120.020(3)(c)-(e).

f.          Exception to protect a life from imminent threat

            Bill 1310 also states: “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(4).

g.         Bill 1054

            In addition to Bill 1310 and the legislation that amended it in 2022, other related bills regulating the use of physical force by officers were passed in 2021 and 2022. One such bill,

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Engrossed Substitute H.B. 1054, 67th Leg., Reg. Sess. (Wash. 2021) (Bill 1054), was signed into law by the governor May 18, 2021. It became effective on July 25, 2021, and is codified in RCW 10.116.010-.060 and RCW 10.31.040 (as amended).^[6] Among other things, it imposes new restrictions on the use of tear gas, military equipment, vehicular pursuits, and no-knock warrants. RCW 10.116.030, .040, .060; RCW 10.31.040. Applicable here, Bill 1054 states that “[a] peace officer may not use a chokehold or neck restraint on another person in the course of his or her duties as a peace officer.” RCW 10.116.020(1).^[7] “Chokehold” is defined as the “intentional application of direct pressure to a person’s trachea or windpipe for the purpose of restricting another person’s airway.” RCW 10.116.020(3)(a). “Neck restraint” is defined as “any vascular neck restraint or similar restraint, hold, or other tactic in which pressure is applied to the neck for the purpose of constricting blood flow.” RCW 10.116.020(3)(b).

ANALYSIS

4.         [a]        In light of the standard in Bill 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 peace officer, another person, or the person against whom force is being used”?

            [b]       Does using physical force in this manner breach a legal duty to leave the scene?

            [c]        Would an officer’s efforts constitute an exception to the public duty doctrine under the rescue doctrine?

            Your questions ask about the ability of law enforcement to use physical force when providing emergency aid. It is helpful to start with a brief background on the emergency aid doctrine. This doctrine is considered part of “community caretaking.” Washington case law recognizes that law enforcement officers are “jacks of all trades and frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime[.]” State v. Boisselle, 194 Wn.2d 1, 10, 448 P.3d 19 (2019) (internal quotation marks omitted). An officer’s emergency aid function “arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm.” Id. at 12 (internal quotation marks omitted) (quoting State v. Kinzy, 141 Wn.2d 373, 386 n.39, 5 P.3d 668 (2000)). This emergency aid function arises when “(1) the officer subjectively believed

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that someone likely needed assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.” Id. (internal quotation marks omitted) (quoting Kinzy, 141 Wn.2d at 386-87).

            In recent amendments, the legislature has expressly emphasized that the standard in Bill 1310 does not prevent peace officers from continuing to engage in community caretaking functions, including rendering emergency aid. Peace officers are not limited or restricted from performing community caretaking functions, performing lifesaving measures such as rendering medical assistance, or from responding to requests for assistance from medical providers and the public. RCW 10.120.020(5)(a)-(b). Peace officers may “continue performing the critical role of supporting those in crisis and assisting vulnerable members of our communities.” Laws of 2022, ch. 4, § 1(2). Prior to these amendments Bill 1310 was silent on this issue. However, even in its prior form Bill 1310 likely did not alter the continuing ability of peace officers to engage in community caretaking, because the statute did not impose any type of limit or prohibition on officers to engage in community caretaking functions. See State v. Kurtz, 178 Wn.2d 466, 473, 309 P.3d 472 (2013) (Washington courts are “hesitant to recognize an abrogation or derogation from the common law absent clear evidence of the legislature’s intent to deviate from the common law.” (Internal quotation marks omitted.)). Regardless, the recent amendments in Bill 1735 confirm the legislature’s intent, and we analyze your questions with the background that officers are not limited in their ability to engage in community caretaking by Bill 1310 or subsequent amendments.

            With this background in mind, we turn now to answering your specific questions in three subparts.

[a]        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 peace officer, another person, or the person against whom force is being used”?

            In our previous opinion responding to your first three questions, we concluded that Bill 1310 likely provides an exclusive list of circumstances in which officers are authorized to use physical force. AGO 2022 No. 1, at 11-12. In this most recent legislative session, the legislature expanded on that list by providing additional circumstances where officers may use physical force. Starting in 2022, to the extent necessary, peace officers may use physical force to “[t]ake a person into custody, transport a person for evaluation or treatment, or provide other assistance under chapter 10.77, 71.05, or 71.34 RCW”^[8]; “[t]ake a minor into protective custody when authorized or

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directed by statute”; “[e]xecute or enforce a court order authorizing or directing a peace officer to take a person into custody”; “[e]xecute a search warrant;” or “[e]xecute or enforce an oral directive issued by a judicial officer in the courtroom or a written order where the court expressly authorizes a peace officer to use physical force to execute or enforce the directive or order[.]” RCW 10.120.020(1)(d)-(h). Bill 2037 also adds additional circumstances where a peace offer may use physical force—significant here is “[t]ake a person into custody when authorized or directed by statute[.]” RCW 10.120.020(1)(j).

            Though the statute has been amended to include new circumstances where peace officers may use physical force, this does not change our previous conclusion that the best reading of the statute is that the enumerated list of circumstances when physical force is authorized is meant to be exclusive. (Indeed, it bolsters that conclusion, because if the listed uses of force were merely illustrative, the legislature would have had no need to add additional circumstances to the list.) Therefore, even if acting pursuant to the emergency aid doctrine, officers may only use physical force when one of these listed circumstances is present.

            You specifically mention the enumerated circumstance that gives peace officers the ability to use physical force where there is an “imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” In many, and perhaps most, situations where peace officers provide emergency aid, there may be an imminent threat of bodily injury to someone, because the emergency aid function “arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm.” Boisselle, 194 Wn.2d at 12 (internal quotation marks omitted) (quoting Kinzy, 141 Wn.2d at 386 n.39).

            Additionally, the legislature amended Bill 1310 to include a definition of physical force that explicitly excludes incidental touching. RCW 10.120.010(7). It is possible that much of the physical interaction that occurs during community caretaking could be considered incidental touching. In those situations, officers would not need to rely on one of the listed circumstances in the statute unless also using physical force.

            Finally, some of the new circumstances added in recent amendments may arise in an emergency aid situation that would then justify a peace officer’s use of physical force. For example, peace officers may be called to a scene to take a person into custody under the Involuntary Treatment Act, and this may include providing emergency aid to stabilize that person and transport them to a safe location. RCW 10.120.020(1)(d) (an officer may use physical force against a person to the extent necessary to take a person into custody under RCW 71.05). However, other emergency aid situations could fall outside of the amended circumstances. Accordingly, officers may not use force for situations where an officer is rendering emergency aid, but is not acting pursuant to statute or some type of court order, and no other circumstance allowing force is present (such as immediate threat of bodily injury).

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[b]        Does using physical force in this manner breach a legal duty to leave the scene?

            Question 4[b] asks if using physical force while rendering emergency aid breaches a legal duty to leave the scene where there is no “imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” As a threshold matter, officers may not use physical force to render emergency aid unless they can identify a circumstance under Bill 1310 or subsequent legislation that authorizes that force. If an officer uses physical force where it was not permitted, they have breached the duty of reasonable care under the statute, even if they took steps to de-escalate the situation.

            Assuming that officers can articulate a justifiable reason to use force, you ask about the “legal duty to leave the scene.” The “legal duty to leave the scene” refers to a de-escalation tactic listed in Bill 1310, a tactic removed in Bill 1735. Bill 1735 moved language providing examples of de-escalation tactics to the definitions section, changed those examples, and removed the action of “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” that originally existed in Bill 1310. Compare Laws of 2022, ch. 4, § 2(1) with Laws of 2021, ch. 324, § 3(2)(a). The question is whether leaving the scene is still considered a de-escalation tactic that could impose a legal duty after the legislature removed it from the statute. We will start by explaining how, prior to Bill 1735, Bill 1310 may have imposed a legal duty upon officers who could have, but declined to leave the scene in limited circumstances. We will then explain why we interpret the legislature’s decision to remove this action as evidence that it is no longer a de-escalation tactic that creates a legal duty, despite the fact that Bill 1735 allows officers to consider other de-escalation tactics not listed in the legislation.

            First, as background, prior to amendment, Bill 1310’s inclusion of the de-escalation tactic of “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” could have created a duty for peace officers to leave the area prior to using physical force under previous law.

            Bill 1310 established a limited set of circumstances in which force is authorized. RCW 10.120.020(1)(a). Bill 1310 then established a duty of reasonable care for an officer’s use of physical force. The legislation requires an officer to (1) when possible, use all de-escalation tactics that are available and appropriate under the circumstances before using physical force; (2) use the least amount of physical force necessary to overcome resistance under the circumstances; and (3) terminate the use of physical force as soon as the necessity for such force ends. RCW 10.120.020(3)(a)-(c). Bill 1310 listed “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” as a possible de-escalation tactic. Even so, it was not a legal duty per se; the statute did not explicitly require peace officers to leave the scene, but rather listed this as an example of a tactic that could be used “[w]hen possible” prior to using physical force, if this tactic is “available and appropriate.” See former RCW 10.120.020(2)(a) (2021). There may be a number of situations where an officer reasonably concludes that leaving the scene is not available or appropriate to maintain security and safety.

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            A de-escalation tactic may become a legal duty, however, when other circumstances are met. Under Bill 1310, as amended, officers must, when possible, use all de-escalation tactics that are available and appropriate under the circumstances before using physical force. RCW 10.120.020(3)(a). Under that standard, officers may be required to use a de-escalation tactic if it is an available and appropriate de-escalation tactic that is possible to prevent the use of physical force. Accordingly, when “leaving the scene” was listed as a de-escalation tactic, a court could conclude that the failure to leave the scene prior to using physical force breached the duty of reasonable care, even when responding to a request for emergency aid. Whether this standard would be met in a particular case of providing emergency aid is not possible to determine in the abstract because there are too many variables.

            Now, however, the legislature removed this as a listed de-escalation tactic with the passage of Bill 1735. Because of this, there likely is no continuing legal duty for officers to leave the scene prior to using physical force, though of course officers may still decide to use this de-escalation tactic depending on the circumstances.

 

            It is true that based on the plain language of the legislation, leaving the scene could still theoretically be considered a de-escalation tactic and be legally required, even though it is no longer explicitly provided in the list. This is because Bill 1735 emphasizes that the de-escalation tactics are not limited to the list provided. RCW 10.120.010(2). Thus, it is theoretically possible a court could determine that this tactic could have been used, just like any other reasonable de-escalation tactic not listed in the legislation.

            In our view, however, this reading would defeat the purpose of the 2022 amendments. The list of de-escalation tactics in Bill 1310 was merely a list of illustrative examples of possible tactics (the law listed tactics “such as” those provided), and Bill 1735 emphasizes even further that the listed tactics are merely illustrative. We assume that the legislature intended to accomplish something by removing “leaving the area” from the list of illustrative de-escalation tactics. See, e.g., Darkenwald v. Emp. Sec. Dep’t, 183 Wn.2d 237, 252, 350 P.3d 647 (2015) (“A change in legislative intent is presumed when a material change is made in a statute.” (Source alterations accepted.)). But because the list of de-escalation tactics in Bill 1310 and 1735 is illustrative, the most likely substantive purpose for removing “leaving the area” from the list is to remove it from consideration as a possible example of a de-escalation tactic that officers are required to consider. We therefore conclude that the more plausible reading of the statute is that officers have no specific duty to leave the scene prior to using physical force (although they still have the duty to exercise reasonable care and leaving the scene remains an option open to them).

[c]        Would an officer’s efforts constitute an exception to the public duty doctrine under the rescue doctrine?

            We do not believe that Bill 1310 or related legislation has any bearing on the answer to this question, which will almost always depend on the very specific facts of particular cases. Here we briefly describe the public duty doctrine and its relevant exceptions to explain why.

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            The public duty doctrine is a focusing tool that limits common law tort liability against governmental entities. Ehrhart v. King County, 195 Wn.2d 388, 398-99, 460 P.3d 612 (2020). To establish that a peace officer had a duty as part of a common law tort claim, the plaintiff must show that “‘the duty breached was owed to an individual and was not merely a general obligation owed to the public.’” Id. at 398 (quoting Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 549, 442 P.3d 608 (2019)). “There are four exceptions to the public duty doctrine: (1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship.” Munich v. Skagit Emergency Commc’n Ctr., 175 Wn.2d 871, 879, 288 P.3d 328 (2012) (citing Cummins v. Lewis County, 156 Wn.2d 844, 853, 133 P.3d 458 (2006)). You ask about the rescue doctrine specifically. Because there is substantial overlap between the rescue doctrine and the special relationship exception, we will address both.^[9]

            Under the rescue doctrine, a “public entity has a special duty to exercise reasonable care after assuming a duty to warn or come to the aid of a particular plaintiff.” Osborn v. Mason County, 157 Wn.2d 18, 25, 134 P.3d 197 (2006) (internal quotation marks omitted). This “special duty” exists because a public entity’s assurances may induce reliance. Id. In these situations, an officer owes a duty of reasonable care when “an injured party reasonably relies, or is in privity with a third party that reasonably relies, on [the officer’s] promise to aid or warn.” Id. at 26 (where reliance causes the injured party to refrain from seeking help elsewhere or a third party to refrain from acting on the injured party’s behalf). Similarly, the “special relationship” exception to the public duty doctrine arises where there is “(1) direct contact or privity between the public official and the plaintiff that sets the plaintiff apart from the general public, (2) an express assurance given by the public official, and (3) justifiable reliance on the assurance by the plaintiff.” Munich, 175 Wn.2d at 879 (citing Babcock v. Mason Cnty. Fire Dist. 6, 144 Wn.2d 774, 786, 30 P.3d 1261 (2001) (plurality opinion)). Both the rescue doctrine and the special relationship exceptions involve a plaintiff’s justifiable or reasonable reliance on an action or assurance by the public entity. See id. at 894 (Chambers, J., concurring, joined by four justices) (“Because the special relationships in these 911 cases are in the nature of rescue doctrine cases, assurances and reliance are appropriate measures of whether a duty arose.”).

            Whether an officer could be held liable under the rescue or special relationship exceptions to the public duty doctrine will depend on the facts of a particular case, such as whether an officer

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gave assurances to a particular person and whether the person relied on those assurances. See, e.g., Osborn, 157 Wn.2d at 26; Munich, 175 Wn.2d at 879. Your question assumes that an officer is responding to an emergency and uses some sort of physical force even though there is no “imminent threat of bodily injury to the officer, another person, or the person against whom force is being used.” As we have explained above, whether force could be used in such circumstances would depend on whether one of the statutory justifications for use of force is present. But there is no inherent overlap between that question and whether the rescue doctrine or special relationship exception would apply. Thus, it is impossible to give an across-the-board answer as to whether an officer’s actions in these circumstances would fall within an exception to the public duty doctrine. An officer could be liable under the exceptions to the public duty doctrine just as they were prior to Bill 1310’s passage.

            To conclude, Bill 1310 and recent amendments under Bill 1735 and Bill 2037 do not prohibit officers from continuing to engage in community caretaking functions. When officers engage in community caretaking functions, such as by providing emergency aid, officers may not use physical force unless one of the permissible uses of force under Bill 1310 or subsequent amendments is present. While recent amendments added additional permissible uses of force that may include some emergency aid situations, they are generally limited to situations that are authorized by statute or required by a court order. Assuming one of the permissible uses of force is present, officers have a duty of reasonable care when considering the use of force to (1) when possible, use all de-escalation tactics that are available and appropriate under the circumstances before using physical force; (2) use the least amount of physical force necessary to overcome resistance under the circumstances, including by considering the characteristics and conditions of a person; and (3) terminate the use of physical force as soon as the necessity for such force ends. RCW 10.120.020(3)(a)-(c). The statutes likely no longer impose a duty on officers to leave the scene in certain situations. Finally, whether an officer’s actions in providing emergency aid fall within an exception to the public duty doctrine will depend on specific facts—such as whether express assurances are made and relied upon—and the answer does not appear to be altered by Bill 1310 or related legislation.

5.         Read together, does section 3(3) of Bill 1310 effectively authorize a law enforcement officer to use a chokehold or neck restraint “to protect 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)?

            Bill 1054 bans chokeholds and neck restraints. “A peace officer may not use a chokehold or neck restraint on another person in the course of his or her duties as a peace officer.” RCW 10.116.020(1). While Bill 1310 does not discuss these tactics specifically, it 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(4) (emphasis added). Thus, Bill 1054 bans chokeholds and neck restraints outright, but Bill 1310 states that otherwise prohibited tactics like these may be used to protect an individual’s life from an imminent threat.

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            When courts are presented with two possibly conflicting statutes, they first attempt to harmonize them. “Statutes in pari materia should be harmonized so as to give force and effect to each and this rule applies with peculiar force to statutes passed at the same session of the Legislature[,]” like Bill 1054 and Bill 1310. Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 423, 259 P.3d 190 (2011) (internal quotation marks omitted). These provisions within Bill 1054 and Bill 1310 regarding chokeholds can indeed be harmonized. Bill 1054 establishes that chokeholds and neck restraints are not allowed to be used in the course of officer duties. This means that they are not tactics to be trained on or authorized, even in situations of deadly force. At the same time, Bill 1310 sets forth a civil standard of reasonable care for law enforcement officers engaged in the use of physical and deadly force. RCW 10.120.020(3). In that context, Bill 1310 excuses officers from civil liability when using prohibited tactics in limited circumstances. As it applies here, Bill 1310 provides a defense to civil liability if an officer uses a chokehold or neck restraint to protect his or her own life or the life of another person from an imminent threat.

            There is support in both the plain language and legislative history for this interpretation. The language in Bill 1310 does not explicitly refer to chokeholds or neck restraints and does not refer to Bill 1054 at all. Looking solely at the plain language, there is no evidence that Bill 1310 is intended to carve out a specific exception to the prohibition in Bill 1054—it applies more broadly to any prohibited use of force tactic. Moreover, Bill 1310 does not affirmatively authorize the use of prohibited force tactics. RCW 10.120.020(4). Rather, it prohibits them in all circumstances other than to protect the officer’s own life or the life of another person from imminent threat.

            There is also evidence from the legislative history that the prohibition in Bill 1054 was intended to be a complete one, while Bill 1310 provides only a defense to liability. There were several attempts to amend Bill 1054 to remove the prohibition on neck restraints or allow for the use of chokeholds and neck restraints in situations where necessary to save human life, but these were all rejected by the legislature. Amendment 696, by Representative Klippert, Engrossed Substitute H.B. 1054, 67th Leg., Reg. Sess. (Wash. 2021)^[10]; Striking Amendment S2079.3, by Comm. on Law & Justice, Engrossed Substitute H.B. 1054, 67th Leg., Reg. Sess. (Wash. 2021)^[11]; Amendment S2388.1, by Senator McCune, Engrossed Substitute H.B. 1054, 67th Leg., Reg. Sess. (Wash. 2021)^[12]; Amendment S2493.1, by Senator Padden, Engrossed Substitute H.B. 1054, 67th Leg., Reg. Sess. (Wash. 2021).^[13] Additionally, when Bill 1310 was amended to include the relevant language, the amendment sponsor, Representative Klippert, stated that this would allow

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law enforcement officers who violated policy to act “without expectation of reprisal.” House Floor Debate on Engrossed Second Substitute H.B. 1310, 67th Leg., Reg. Sess. (Wash. Mar. 6, 2021), at 1:03:25–4:49, audio recording by TVW, Washington State’s Public Affairs Network^[14] (discussing Amendment 710, by Representative Klippert, Second Substitute H.B. 1310, 67th Leg., Reg. Sess. (Wash. 2021)^[15]). In agreement, Representative Johnson stated that the amendment “simply reinforces the necessity of defense doctrine to protect an officer’s life [or] the life of another.” Id. at 1:04:55–5:15.

            In this way, the language in Bill 1310 may be viewed like a necessity defense to civil liability. This type of defense already exists in the common law for criminal defendants: the defense of necessity is available when “(1) [the defendant] reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative existed.” State ex rel. Haskell v. Spokane Cnty. Dist. Ct., 198 Wn.2d 1, 12, 491 P.3d 119 (2021) (alteration in original) (quoting State v. Ward, 8 Wn. App. 2d 365, 372, 438 P.3d 588 (2019)); see also Hr’g on H.B. 1054 Before the H. Public Safety Comm., 67th Leg., Reg. Sess. (Wash. Jan. 12, 2021), at 32 mins., 22 sec., Testimony of Rep. Hackney, audio recording by TVW, Washington State’s Public Affairs Network^[16] (noting during a discussion on chokeholds and neck restraints that “the defense of necessity allows an individual to commit a criminal act during an emergency situation in order to prevent a greater harm from happening. So in the instance where someone is fighting for their life, the defense of necessity would prevent them from being prosecuted for committing this violation”). The inclusion of the language in Bill 1310 allows peace officers to raise a similar statutory defense in a civil lawsuit if they have used a prohibited tactic to save human life from an imminent threat.

            This statutory defense in Bill 1310 is similar to other statutory defenses in criminal law that already exist in Washington. An officer faced with criminal liability can raise defenses under RCW 9A.16. RCW 9A.16.020(1) states that force is not unlawful when “necessarily used by a public officer in the performance of a legal duty[.]”^[17] If an officer uses a chokehold or neck restraint that results in death, an officer may also raise a defense under RCW 9A.16.040, which

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states that officers “shall not be held criminally liable for using deadly force in good faith[.]” RCW 9A.16.040(4). Good faith is “an objective standard which shall consider all the facts, circumstances, and information known to the officer at the time to determine whether a similarly situated reasonable officer would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual.” RCW 9A.16.040(4).

            As noted previously, Bill 1310 and Bill 1054 affect civil liability for officers by establishing new civil standards and duties, but do not affect some existing statutes involving criminal liability. The legislature confirmed this in Bill 1735 when it stated that it “does not intend to abrogate the criminal liability protections afforded to peace officers in chapter 9A.16 RCW.” Laws of 2022, ch. 4, § 1(3). “Instead, the legislature hereby reaffirms its intent to establish RCW 10.120.020 as a distinct and more restrictive civil standard to inform the policies and practices applicable to all peace officers operating within state agencies and local governments.” Laws of 2022, ch. 4, § 1(3). The addition of the civil defense in Bill 1310 may act as an analogous defense to the criminal liability defenses that exist in other statutes.

            While we believe our interpretation is the best reading of the two statutes, it is possible that a court could read Bill 1310 as creating an exception to Bill 1054’s ban on chokeholds and neck restraints when such tactics are necessary to protect human life from an imminent threat. In other words, a court might determine that the prohibition is not a complete one. That would instead imply that these tactics may be permissible in certain situations, rather than the officer merely being able to raise the language in Bill 1310 as a defense to liability when they have used these prohibited tactics. We find that to be a less likely outcome for three reasons.

            First, courts will generally follow the plain language of a statute and decline to read exceptions into that plain language that are not there. Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997) (“The legislative intent should be derived primarily from the statutory language . . . even though [the statute’s] results seem unduly harsh.”); State v. Nelson, 195 Wn. App. 261, 266, 381 P.3d 84 (2016) (“We do not add words to an unambiguous statute . . . the legislature intends to use the words it uses and intends not to use words it does not use.” (Emphasis in original.)). Bill 1054 imposes a clear prohibition on chokeholds and neck restraints without limitation.

            Second, as mentioned previously, there were several attempts to amend Bill 1054 to remove the prohibition on neck restraints or allow for the use of chokeholds and neck restraints in situations where necessary to save human life, but these were all rejected by the legislature. Generally, failed amendments are not strong evidence of legislative intent. See, e.g., John Doe A ex rel. Roe v. Washington State Patrol, 185 Wn.2d 363, 381, 374 P.3d 63 (2016). But they can provide some evidence that the legislature knew how to achieve some outcome with legislation, and chose not to. Id. (“Although a failed amendment means little, it does show that the legislature knows how to exempt . . . records . . . if it wishes to do so.”). In this context, the fact that there were several failed amendments can provide additional support that the legislature’s intent appears to have been to impose a complete ban on chokeholds and neck restraints. See Duke, 133 Wn.2d at 88 (“we cannot question the wisdom of this policy, and we must enforce the statute as written”).

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            Third, applying the language of Bill 1310 to read in an exception to Bill 1054 could have important implications for other prohibited force tactics, which we think would be a result the legislature did not intend. There may be additional force tactics that are prohibited, whether in recently-passed legislation, existing legislation, or police department policy. If the language in Bill 1310 is interpreted to change the prohibition in Bill 1054, that would also imply that Bill 1310 could provide exceptions to other prohibitions in law. This could potentially be a dramatic result—and if this had been the legislature’s intent, we believe there would have been more direct language speaking to this intent or more evidence from the legislative history.

            It is important to note that we view the language in Bill 1054 as a complete ban; the exception provided in Bill 1310 does not mean that chokeholds and neck restraints are authorized uses of deadly force. If they were authorized as a use of deadly force, officers would need to be trained on these tactics, and it appears that the legislature did not want that result. See House Floor Debate on Engrossed Second Substitute H.B 1054, 67th Leg., Reg. Sess. (Wash. Feb. 27, 2021), at 4:10–6:06, audio recording by TVW, Washington State’s Public Affairs Network (statements by Representative Johnson discussing the “urgent need” for a “full ban on both chokeholds and neck restraints” and stating that “training on the proper usage of [chokeholds and neck restraints] is too inconsistently taught throughout our system”)^[18]; Senate Floor Debate on Engrossed Substitute H.B. 1054, 67th Leg., Reg. Sess. (Wash. Apr. 6, 2021), at 5:07–6:12 (statements by Senator Pedersen stating that previously, he “thought that we ought to continue to permit chokeholds and neck restraints but have them regulated as deadly force” but he “learned subsequently [] that roughly 70 percent of the time, when trained officers deploy these techniques in the heat of the moment, they do so incorrectly”).^[19] The language in Bill 1310 removes civil liability in circumstances where officers have used these prohibited tactics to protect human life from an imminent threat, and a court would likely construe the exception to the ban on chokeholds and neck restraints narrowly. Swinomish Indian Tribal Cmty. v. Dep’t of Ecology, 178 Wn.2d 571, 582, 311 P.3d 6 (2013) (“generally exceptions to statutory provisions are narrowly construed in order to give effect to legislative intent underlying the general provisions” (internal quotation marks omitted)). Nothing in Bill 1310 purports to alter independent prohibitions on certain law enforcement tactics. Rather, Bill 1310 addresses the standard of care for civil liability. An officer who engages in a prohibited tactic may raise the statutory necessity defense in Bill 1310 if they face civil liability or other consequences such as officer decertification or workplace discipline.

            To conclude, Bill 1054 prohibits chokeholds and neck restraints in the course of a peace officer’s duties. Bill 1310 provides a defense to civil liability in limited circumstances if an officer uses these tactics. Existing statutes and common law doctrines also provide officers with criminal defenses if they are criminally charged for the use of a chokehold or neck restraint. While

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Bill 1310 removes civil liability for prohibited tactics when necessary to protect a life from imminent threat, it does not change the fact that chokeholds and neck restraints are prohibited tactics. Thus, if officers use these prohibited tactics in situations not necessary to save human life from an imminent threat, officers may still face civil liability, decertification, or other workplace discipline.

6.         How should the terms “possible,” “available,” and “appropriate” in section 3 of Bill 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, 396, 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”?

            The terms “possible,” “available,” and “appropriate” are used repeatedly in Bill 1310. First, as part of the duty of reasonable care, “a peace officer shall . . . [w]hen possible, use all de-escalation tactics that are available and appropriate under the circumstances before using physical force[.]” RCW 10.120.020(3)(a) (emphases added). Second, when using physical force is necessary, officers have a duty to determine “the appropriate and least amount of force possible to effect a lawful purpose.” RCW 10.120.020(3)(b) (emphases added). Third, Bill 1310 requires officers to, “[w]hen possible, use less lethal alternatives that are available and appropriate under the circumstances before using deadly force” and “[m]ake less lethal alternatives issued to the officer reasonably available for his or her use.” RCW 10.120.020(3)(d)-(e). Finally, the term “available” is used in two de-escalation tactics: “attempting to slow down or stabilize the situation so that more time, options, and resources are available to resolve the incident” and “requesting and using available support and resources[.]” RCW 10.120.010(2) (emphases added).

            Neither Bill 1310 nor related legislation define “possible,” “available,” or “appropriate.” Your question therefore asks how a court would likely define these terms: according to their plain meaning, or using the “reasonable officer” standard established under Graham. For several reasons, we believe a court would conclude that these terms are meant to have their ordinary meaning, not a meaning derived from Graham.

            First, as discussed above, courts generally interpret undefined terms according to their plain meaning. 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)). That approach appears workable here, given that “possible,” “available,” and “appropriate” are commonly understood terms. The applicable dictionary definition of “possible” is “being within the limits of ability, capacity, or realization.” Possible, Merriam-Webster.com, https://merriam-webster.com/dictionary/possible (last visited Oct. 6, 2022). The applicable dictionary definition of “available” is “present or ready for immediate use.” Available, Merriam-Webster.com, https://merriam-webster.com/dictionary/available (last visited Oct. 6, 2022). Finally, “appropriate” is defined as “especially suitable or compatible.” Appropriate, Merriam-Webster.com, https://merriamwebster.com/dictionary/appro

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priate (last visited Oct. 6, 2022). Applying these definitions to RCW 10.120.020(3)(a), peace officers have a duty to exhaust de-escalation tactics that are “present or ready for immediate use” and “especially suitable or compatible” when it is “within the limits of ability, capacity, or realization.” These definitions apply to the other instances in the bill where these terms are used.

            Second, nothing in the text of Bill 1310 or related legislation mentions Graham or indicates any intent to adopt its “reasonable officer” standard. This is especially telling because the legislature has used a “reasonable officer” standard in other Washington statutes. RCW 9A.16.040(4) (defining “good faith” as “an objective standard which shall consider all the facts, circumstances, and information known to the officer at the time to determine whether a similarly situated reasonable officer would have believed that the use of deadly force was necessary” (emphasis added)). This indicates that the legislature knew it could incorporate a similar standard here and chose not to. Cf. Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669, 680, 389 P.3d 476 (2017) (“where the legislature includes particular language in one section of a statute but omits it in another, the exclusion is presumed intentional”).

            Third, there is evidence from the legislative history that the legislature did not intend to interpret Bill 1310 under the “reasonable officer” standard or with reference to Graham. For example, several amendments were proposed to incorporate a reasonable officer standard to Bill 1310 by specifying that undefined terms like “appropriate,” “available,” and “possible” be interpreted according to this standard. Striking Amendment G.1, by Senator Padden, Engrossed Second Substitute H.B. 1310, 67th Leg., Reg. Sess. (Wash. 2021)^[20]; Amendment 712, by Senator Mosbrucker, Engrossed Second Substitute H.B. 1310, 67th Leg., Reg. Sess. (Wash. 2021)^[21]; Amendment S2733.1, by Senator Short, Engrossed Second Substitute H.B. 1310, 67th Leg., Reg. Sess. (Wash. 2021).^[22] These amendments were rejected.^[23] Additionally, legislators made several statements in committee and floor hearings about the intention to create a new standard, rather than use the Graham standard. In the House Floor Debate, Representative Hackney stated that “there is no standard, reasonable police officer which is similar to that of a trained medical professional. The very objective of this bill . . . is to change the standard of conduct of police officers in use of force. We are no longer relying on the reasonable police officer standard.” House Floor Debate on Engrossed Second Substitute H.B. 1310, 67th Leg., Reg. Sess. (Wash. Mar. 6,

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2021), at 46:22–46:49, audio recording by TVW, Washington State’s Public Affairs Network.^[24] In that same hearing, Representative Goodman stated that the “core intent of this legislation . . . is to raise the threshold for the use of force from what is reasonable to what is necessary . . . we do not want to measure whether the use of force was according to what a reasonable officer would do, comparing to any other officer, but whether that officer complied with the standard. The standard [of reasonable care] is very clearly laid out in this legislation.” Id. at 49:27–50:04. Additionally, Senator Pederson, Chair of the Senate Law & Justice Committee and a sponsor of related use of force legislation, stated in a committee hearing that the legislative intent was to interpret undefined terms in the legislation under their plain meaning, using a reasonable person standard, rather than the Graham standard that judges reasonableness based on the perspective of a reasonable officer. Hr’g on Engrossed Second Substitute H.B. 1310 Before the S. Law & Justice Comm., 67th Leg., Reg. Sess. (Wash. Mar. 18, 2021), at 1:22:28–23:22, audio recording by TVW, Washington State’s Public Affairs Network.^[25]

            Fourth, the Graham standard was developed in a different context—to analyze whether a particular use of police force was excessive under the Fourth Amendment. See Graham, 490 U.S. at 396; Staats v. Brown, 139 Wn.2d 757, 771, 991 P.2d 615 (2000). Under this court-made test, “[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.” Graham, 490 U.S. at 396. As explained above, however, there is no indication in statutory text or legislative history that the legislature’s goal in passing Bill 1310 and related legislation was simply to incorporate Fourth Amendment standards into state law; to the contrary, it is clear that the legislature intended to adopt a more protective approach.

            It is true that Washington courts have sometimes looked to the Graham standard to analyze state common law claims against police officers. See, e.g., Gallegos v. Freeman, 172 Wn. App. 616, 641-642, 291 P.3d 265 (2013) (citing McKinney v. City of Tukwila, 103 Wn. App. 391, 407-09, 13 P.3d 631 (2000)). But in interpreting Bill 1310, we are interpreting words chosen by the legislature, not the common law. If the legislature wanted to adopt a court-developed standard into statutory law, it could have indicated that in the operative provisions of the statutory text, the intent sections, or deliberations over the bill. But none of those materials suggest that this was the legislature’s goal.^[26]

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            For all of these reasons, we conclude that a court is more likely to hold that undefined terms in the legislation should be interpreted according to their plain language, rather than under the Graham “reasonable officer” standard.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
    Attorney General

ALEXIA DIORIO
    Solicitor General’s Office Fellow

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