Other LanguagesAgency's use-of-force policy is consistent with the AGO model policy:
No
Why agency's use-of force policy departs from the AGO model policy:
This Declaration shall serve as certification as required by RCW 10.120.030 that the City of Everett Police Department (“EPD”) has adopted use of force policies consistent with RCW 10.120. Moreover, after a robust and careful consideration of the Attorney General’s Model Use of Force Policy (“MP”), EPD has adopted use of force polices that are largely consistent with the MP, with six limited exceptions. EPD therefore submits this statement explaining EPD’s departures from the MP.
In offering the below explanations, EPD was guided by the Attorney General’s proffered guidance for the meaning of “consistent,” (Footnote 1) Black’s Law Dictionary’s definition of “consistent,” (Footnote 2) as well as the principles espoused in ESSHB 1310 (2021) and ESHB 2037 (2022).
Departure #1
MP Page 7, Use of Force must be for a Lawful Purpose (2)(l):
EPD declines to adopt (2)(l), which permits use of physical force to effectuate community caretaking functions because the Model Policy does not reflect the dictates of RCW 10.120.020.
Explanation of Consistency with RCW 10.120:
The Model Policy conflicts with RCW 10.120.020(1), which delineates the only eleven instances in which a peace officer is statutorily authorized to use physical force. As written, the MP appears to additionally condone use of physical force whenever an officer is executing community caretaking functions:
“An officer may use physical force against a person to the extent necessary to…execute any other community caretaking function, including but not limited to performing welfare checks, assisting other first responders and medical professionals, behavioral health professionals, social service providers, designated crisis responders, shelter or housing providers, or any member of the public.”
EPD policy instead mirrors RCW 10.120.020(1) by restricting the use of physical force to only those circumstances authorized by statute. EPD policy additionally outlines that officers retain authority and responsibility to engage in community caretaking efforts, including assisting other first responders and behavioral health professionals, but within the bounds of RCW 10.120.020.
Departure #2
MP Page 10 Types of Force (2)(f)(i):
In its entirety, this subsection states:
“Officers shall only use striking techniques directed at a subject’s head as a means of self-defense, or in the defense of others. Striking at a person’s head using fists, elbows, knees, and feet, shall not be used as a means of pain compliance.”
EPD declines to adopt the second sentence of (2)(f)(i):“[s]triking at a person’s head using fists, elbows, knees, and feet, shall not be used as a means of pain compliance” because the term “pain compliance” is not defined and subject to numerous, conflicting, interpretations.
Explanation of Consistency with RCW 10.120:
It is unclear whether these two sentences together are meant to illustrate government interest pursuant to Graham v. Connor (Footnote 3) and its progeny, or to restrict intermediate use of force only to self-defense and defense of others. EPD found the reference to “pain compliance” to be imprecise and beyond the scope of RCW 10.120.
RCW 10.120 permits “necessary” use of physical force to accomplish delineated ends, such as to execute a search warrant. RCW 10.120.010(5) provides that: “Necessary means that, 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 is silent as to “pain compliance,” which is a term ill-defined in case law and subject to contradictory interpretations. EPD policy maintains the advisory that striking techniques intentionally directed at a subject’s head are disfavored, and should only be used in self-defense or in defense of others. Consistent with the mandate that physical force must be necessary, and therefore reasonable and proportional, EPD policy directly aligns with RCW 10.120 and the limitations therein.
Departure #3
MP Page 13 Firearms (f)(a):
EPD declines to adopt the provision stating that “[o]fficers shall not use a firearm… when it appears likely that an innocent person may be injured” without additional qualification. This provision of the MP does not adequately accommodate all of the scenarios a law enforcement officer might respond to in their official capacity, such as an active shooter or hostage situation.
Explanation of Consistency with RCW 10.120:
This provision is inconsistent with law enforcement training and best practices. This policy would dangerously prohibit the use of firearms in an active shooter or hostage situation when the suspect poses a threat of serious physical harm to the officer or others and where deadly force is otherwise necessary. Neither RCW 10.120 nor RCW 9A.16.040 prohibit the use of firearms in such situations, and EPD declines to so limit its officers by policy.
Departure #4
MP Page 12, Electronic Control Weapons (3)(a):
EPD declines to mandate that officers must draw and use the ECW with the support hand except in “extreme circumstances” because it does not reflect current best practices or training, and fails to account for an officer’s ability to accurately and safely fire an ECW.
Explanation of Consistency with RCW 10.120:
EPD policy mandates that officers carry the ECW on the support side of their body, and trains that best practice is to draw and fire the ECW from the support side as well. However, both EPD training and best practices permit use of a cross-draw when circumstances and/or officer dexterity require. RCW 10.120 is silent as to EWC standards of use, and EPD policy maintains that officers should prioritize safety and accuracy when drawing and using the ECW, while still mandating that officers carry the ECW on the support side of their body.
Departure #5
MP Page 12, Electronic Control Weapons (4)(b):
EPD recognizes that in all but the most extreme circumstances, an ECW should not be use against a person in handcuffs or otherwise restrained. However, EPD declines to limit those rare circumstances only to those instances when deadly force is otherwise necessary.
Explanation of Consistency with RCW 10.120:
Consistent with RCW 10.120, EPD policy prohibits application of an ECW against an individual in handcuffs or otherwise restrained, except in the most extreme circumstances, such as a handcuffed person who arms themselves with a weapon or a handcuffed person who presents an immediate threat of serious bodily injury or death to the officer. EPD policy upholds the restrictions of RCW 10.120.020 in all uses of force, including the rare circumstances in which an officer may use an ECW against a restrained person in that the use of force must still be necessary under the totality of the circumstances and consistent with the enumerated permissible circumstances in RCW 10.120.020(1).
Departure #6
MP Page 14, Spit guards:
EPD declines to designate application of a spit guard as a use of force to which RCW 10.120 applies because the purpose and use of a spit guard does not fall within RCW 10.120.010’s definition of “physical force.”
Explanation of Consistency with RCW 10.120:
RCW 10.120.010 defines physical force as: “[A]ny 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 handcuffing where there is no physical pain or injury.”
Per the MP, a spit guard is applied “with the intent of preventing or reducing the transmission of infection disease through saliva, mucous, and blood.” The device is neither intended nor utilized as a method of compelling movement, controlling movement, constraining movement, or restraining movement. Rather, it is a safety measure used guard against exposure to disease. EPD policy permits application of a spit guard to an individual who is spitting or biting and has otherwise been lawfully restrained, thus aligning with RCW 10.120.
EPD respectfully submits the attached use of force policies, adopted as of November 30, 2022. In order to effectively introduce officers to the revised policies, EPD had undertaken a period of training on the new policies a planned effective date of December 15, 2022. EPD continues to refine its policies to meet legal and community standards, and unceasingly commits to evolve its policies to reflect those standards in order to best serve the community.
Footnotes
Footnote 1
“The law does not define “consistent” in this context. Agencies should rely on the commonly understood definition. In terms of guidance, the AGO offers the following: a policy need not be identical to the AGO model policy to be consistent with it; however, it should be substantially similar and free from significant deviations.” https://www.atg.wa.gov/law-enforcement-use-force-and-de-escalation (last accessed 1/29/2022).
Footnote 2
“Having agreement with itself or something else; accordant; harmonious; congruous; compatible; compliable; not contradictory.” Black’s Law Dictionary 308 (6th ed. 1990).
Footnote 3
490 U.S. 386 (1989).
In offering the below explanations, EPD was guided by the Attorney General’s proffered guidance for the meaning of “consistent,” (Footnote 1) Black’s Law Dictionary’s definition of “consistent,” (Footnote 2) as well as the principles espoused in ESSHB 1310 (2021) and ESHB 2037 (2022).
Departure #1
MP Page 7, Use of Force must be for a Lawful Purpose (2)(l):
EPD declines to adopt (2)(l), which permits use of physical force to effectuate community caretaking functions because the Model Policy does not reflect the dictates of RCW 10.120.020.
Explanation of Consistency with RCW 10.120:
The Model Policy conflicts with RCW 10.120.020(1), which delineates the only eleven instances in which a peace officer is statutorily authorized to use physical force. As written, the MP appears to additionally condone use of physical force whenever an officer is executing community caretaking functions:
“An officer may use physical force against a person to the extent necessary to…execute any other community caretaking function, including but not limited to performing welfare checks, assisting other first responders and medical professionals, behavioral health professionals, social service providers, designated crisis responders, shelter or housing providers, or any member of the public.”
EPD policy instead mirrors RCW 10.120.020(1) by restricting the use of physical force to only those circumstances authorized by statute. EPD policy additionally outlines that officers retain authority and responsibility to engage in community caretaking efforts, including assisting other first responders and behavioral health professionals, but within the bounds of RCW 10.120.020.
Departure #2
MP Page 10 Types of Force (2)(f)(i):
In its entirety, this subsection states:
“Officers shall only use striking techniques directed at a subject’s head as a means of self-defense, or in the defense of others. Striking at a person’s head using fists, elbows, knees, and feet, shall not be used as a means of pain compliance.”
EPD declines to adopt the second sentence of (2)(f)(i):“[s]triking at a person’s head using fists, elbows, knees, and feet, shall not be used as a means of pain compliance” because the term “pain compliance” is not defined and subject to numerous, conflicting, interpretations.
Explanation of Consistency with RCW 10.120:
It is unclear whether these two sentences together are meant to illustrate government interest pursuant to Graham v. Connor (Footnote 3) and its progeny, or to restrict intermediate use of force only to self-defense and defense of others. EPD found the reference to “pain compliance” to be imprecise and beyond the scope of RCW 10.120.
RCW 10.120 permits “necessary” use of physical force to accomplish delineated ends, such as to execute a search warrant. RCW 10.120.010(5) provides that: “Necessary means that, 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 is silent as to “pain compliance,” which is a term ill-defined in case law and subject to contradictory interpretations. EPD policy maintains the advisory that striking techniques intentionally directed at a subject’s head are disfavored, and should only be used in self-defense or in defense of others. Consistent with the mandate that physical force must be necessary, and therefore reasonable and proportional, EPD policy directly aligns with RCW 10.120 and the limitations therein.
Departure #3
MP Page 13 Firearms (f)(a):
EPD declines to adopt the provision stating that “[o]fficers shall not use a firearm… when it appears likely that an innocent person may be injured” without additional qualification. This provision of the MP does not adequately accommodate all of the scenarios a law enforcement officer might respond to in their official capacity, such as an active shooter or hostage situation.
Explanation of Consistency with RCW 10.120:
This provision is inconsistent with law enforcement training and best practices. This policy would dangerously prohibit the use of firearms in an active shooter or hostage situation when the suspect poses a threat of serious physical harm to the officer or others and where deadly force is otherwise necessary. Neither RCW 10.120 nor RCW 9A.16.040 prohibit the use of firearms in such situations, and EPD declines to so limit its officers by policy.
Departure #4
MP Page 12, Electronic Control Weapons (3)(a):
EPD declines to mandate that officers must draw and use the ECW with the support hand except in “extreme circumstances” because it does not reflect current best practices or training, and fails to account for an officer’s ability to accurately and safely fire an ECW.
Explanation of Consistency with RCW 10.120:
EPD policy mandates that officers carry the ECW on the support side of their body, and trains that best practice is to draw and fire the ECW from the support side as well. However, both EPD training and best practices permit use of a cross-draw when circumstances and/or officer dexterity require. RCW 10.120 is silent as to EWC standards of use, and EPD policy maintains that officers should prioritize safety and accuracy when drawing and using the ECW, while still mandating that officers carry the ECW on the support side of their body.
Departure #5
MP Page 12, Electronic Control Weapons (4)(b):
EPD recognizes that in all but the most extreme circumstances, an ECW should not be use against a person in handcuffs or otherwise restrained. However, EPD declines to limit those rare circumstances only to those instances when deadly force is otherwise necessary.
Explanation of Consistency with RCW 10.120:
Consistent with RCW 10.120, EPD policy prohibits application of an ECW against an individual in handcuffs or otherwise restrained, except in the most extreme circumstances, such as a handcuffed person who arms themselves with a weapon or a handcuffed person who presents an immediate threat of serious bodily injury or death to the officer. EPD policy upholds the restrictions of RCW 10.120.020 in all uses of force, including the rare circumstances in which an officer may use an ECW against a restrained person in that the use of force must still be necessary under the totality of the circumstances and consistent with the enumerated permissible circumstances in RCW 10.120.020(1).
Departure #6
MP Page 14, Spit guards:
EPD declines to designate application of a spit guard as a use of force to which RCW 10.120 applies because the purpose and use of a spit guard does not fall within RCW 10.120.010’s definition of “physical force.”
Explanation of Consistency with RCW 10.120:
RCW 10.120.010 defines physical force as: “[A]ny 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 handcuffing where there is no physical pain or injury.”
Per the MP, a spit guard is applied “with the intent of preventing or reducing the transmission of infection disease through saliva, mucous, and blood.” The device is neither intended nor utilized as a method of compelling movement, controlling movement, constraining movement, or restraining movement. Rather, it is a safety measure used guard against exposure to disease. EPD policy permits application of a spit guard to an individual who is spitting or biting and has otherwise been lawfully restrained, thus aligning with RCW 10.120.
EPD respectfully submits the attached use of force policies, adopted as of November 30, 2022. In order to effectively introduce officers to the revised policies, EPD had undertaken a period of training on the new policies a planned effective date of December 15, 2022. EPD continues to refine its policies to meet legal and community standards, and unceasingly commits to evolve its policies to reflect those standards in order to best serve the community.
Footnotes
Footnote 1
“The law does not define “consistent” in this context. Agencies should rely on the commonly understood definition. In terms of guidance, the AGO offers the following: a policy need not be identical to the AGO model policy to be consistent with it; however, it should be substantially similar and free from significant deviations.” https://www.atg.wa.gov/law-enforcement-use-force-and-de-escalation (last accessed 1/29/2022).
Footnote 2
“Having agreement with itself or something else; accordant; harmonious; congruous; compatible; compliable; not contradictory.” Black’s Law Dictionary 308 (6th ed. 1990).
Footnote 3
490 U.S. 386 (1989).
How agency's use-of-force policy is consistent with RCW 10.120.020:
Departure #1
Explanation of Consistency with RCW 10.120:
The Model Policy conflicts with RCW 10.120.020(1), which delineates the only eleven instances in which a peace officer is statutorily authorized to use physical force. As written, the MP appears to additionally condone use of physical force whenever an officer is executing community caretaking functions:
“An officer may use physical force against a person to the extent necessary to…execute any other community caretaking function, including but not limited to performing welfare checks, assisting other first responders and medical professionals, behavioral health professionals, social service providers, designated crisis responders, shelter or housing providers, or any member of the public.”
EPD policy instead mirrors RCW 10.120.020(1) by restricting the use of physical force to only those circumstances authorized by statute. EPD policy additionally outlines that officers retain authority and responsibility to engage in community caretaking efforts, including assisting other first responders and behavioral health professionals, but within the bounds of RCW 10.120.020.
Departure #2
Explanation of Consistency with RCW 10.120:
It is unclear whether these two sentences together are meant to illustrate government interest pursuant to Graham v. Connor (Footnote 3) and its progeny, or to restrict intermediate use of force only to self-defense and defense of others. EPD found the reference to “pain compliance” to be imprecise and beyond the scope of RCW 10.120.
RCW 10.120 permits “necessary” use of physical force to accomplish delineated ends, such as to execute a search warrant. RCW 10.120.010(5) provides that: “Necessary means that, 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 is silent as to “pain compliance,” which is a term ill-defined in case law and subject to contradictory interpretations. EPD policy maintains the advisory that striking techniques intentionally directed at a subject’s head are disfavored, and should only be used in self-defense or in defense of others. Consistent with the mandate that physical force must be necessary, and therefore reasonable and proportional, EPD policy directly aligns with RCW 10.120 and the limitations therein.
Departure #3
Explanation of Consistency with RCW 10.120:
This provision is inconsistent with law enforcement training and best practices. This policy would dangerously prohibit the use of firearms in an active shooter or hostage situation when the suspect poses a threat of serious physical harm to the officer or others and where deadly force is otherwise necessary. Neither RCW 10.120 nor RCW 9A.16.040 prohibit the use of firearms in such situations, and EPD declines to so limit its officers by policy.
Departure #4
Explanation of Consistency with RCW 10.120:
EPD policy mandates that officers carry the ECW on the support side of their body, and trains that best practice is to draw and fire the ECW from the support side as well. However, both EPD training and best practices permit use of a cross-draw when circumstances and/or officer dexterity require. RCW 10.120 is silent as to EWC standards of use, and EPD policy maintains that officers should prioritize safety and accuracy when drawing and using the ECW, while still mandating that officers carry the ECW on the support side of their body.
Departure #5
Explanation of Consistency with RCW 10.120:
Consistent with RCW 10.120, EPD policy prohibits application of an ECW against an individual in handcuffs or otherwise restrained, except in the most extreme circumstances, such as a handcuffed person who arms themselves with a weapon or a handcuffed person who presents an immediate threat of serious bodily injury or death to the officer. EPD policy upholds the restrictions of RCW 10.120.020 in all uses of force, including the rare circumstances in which an officer may use an ECW against a restrained person in that the use of force must still be necessary under the totality of the circumstances and consistent with the enumerated permissible circumstances in RCW 10.120.020(1).
Departure #6
Explanation of Consistency with RCW 10.120:
RCW 10.120.010 defines physical force as: “[A]ny 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 handcuffing where there is no physical pain or injury.”
Per the MP, a spit guard is applied “with the intent of preventing or reducing the transmission of infection disease through saliva, mucous, and blood.” The device is neither intended nor utilized as a method of compelling movement, controlling movement, constraining movement, or restraining movement. Rather, it is a safety measure used guard against exposure to disease. EPD policy permits application of a spit guard to an individual who is spitting or biting and has otherwise been lawfully restrained, thus aligning with RCW 10.120.
Explanation of Consistency with RCW 10.120:
The Model Policy conflicts with RCW 10.120.020(1), which delineates the only eleven instances in which a peace officer is statutorily authorized to use physical force. As written, the MP appears to additionally condone use of physical force whenever an officer is executing community caretaking functions:
“An officer may use physical force against a person to the extent necessary to…execute any other community caretaking function, including but not limited to performing welfare checks, assisting other first responders and medical professionals, behavioral health professionals, social service providers, designated crisis responders, shelter or housing providers, or any member of the public.”
EPD policy instead mirrors RCW 10.120.020(1) by restricting the use of physical force to only those circumstances authorized by statute. EPD policy additionally outlines that officers retain authority and responsibility to engage in community caretaking efforts, including assisting other first responders and behavioral health professionals, but within the bounds of RCW 10.120.020.
Departure #2
Explanation of Consistency with RCW 10.120:
It is unclear whether these two sentences together are meant to illustrate government interest pursuant to Graham v. Connor (Footnote 3) and its progeny, or to restrict intermediate use of force only to self-defense and defense of others. EPD found the reference to “pain compliance” to be imprecise and beyond the scope of RCW 10.120.
RCW 10.120 permits “necessary” use of physical force to accomplish delineated ends, such as to execute a search warrant. RCW 10.120.010(5) provides that: “Necessary means that, 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 is silent as to “pain compliance,” which is a term ill-defined in case law and subject to contradictory interpretations. EPD policy maintains the advisory that striking techniques intentionally directed at a subject’s head are disfavored, and should only be used in self-defense or in defense of others. Consistent with the mandate that physical force must be necessary, and therefore reasonable and proportional, EPD policy directly aligns with RCW 10.120 and the limitations therein.
Departure #3
Explanation of Consistency with RCW 10.120:
This provision is inconsistent with law enforcement training and best practices. This policy would dangerously prohibit the use of firearms in an active shooter or hostage situation when the suspect poses a threat of serious physical harm to the officer or others and where deadly force is otherwise necessary. Neither RCW 10.120 nor RCW 9A.16.040 prohibit the use of firearms in such situations, and EPD declines to so limit its officers by policy.
Departure #4
Explanation of Consistency with RCW 10.120:
EPD policy mandates that officers carry the ECW on the support side of their body, and trains that best practice is to draw and fire the ECW from the support side as well. However, both EPD training and best practices permit use of a cross-draw when circumstances and/or officer dexterity require. RCW 10.120 is silent as to EWC standards of use, and EPD policy maintains that officers should prioritize safety and accuracy when drawing and using the ECW, while still mandating that officers carry the ECW on the support side of their body.
Departure #5
Explanation of Consistency with RCW 10.120:
Consistent with RCW 10.120, EPD policy prohibits application of an ECW against an individual in handcuffs or otherwise restrained, except in the most extreme circumstances, such as a handcuffed person who arms themselves with a weapon or a handcuffed person who presents an immediate threat of serious bodily injury or death to the officer. EPD policy upholds the restrictions of RCW 10.120.020 in all uses of force, including the rare circumstances in which an officer may use an ECW against a restrained person in that the use of force must still be necessary under the totality of the circumstances and consistent with the enumerated permissible circumstances in RCW 10.120.020(1).
Departure #6
Explanation of Consistency with RCW 10.120:
RCW 10.120.010 defines physical force as: “[A]ny 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 handcuffing where there is no physical pain or injury.”
Per the MP, a spit guard is applied “with the intent of preventing or reducing the transmission of infection disease through saliva, mucous, and blood.” The device is neither intended nor utilized as a method of compelling movement, controlling movement, constraining movement, or restraining movement. Rather, it is a safety measure used guard against exposure to disease. EPD policy permits application of a spit guard to an individual who is spitting or biting and has otherwise been lawfully restrained, thus aligning with RCW 10.120.
Date policy last updated: