2021-Legislative-UpdatesREPORT PREPARED BY CHIEF MATT BROWN
City of Port Orchard Police Department
July 26t", 2021
MATT BROWN
Contents
Introduction..................................................................................................................................................3
Summary of Law Enforcement Reform Bills.................................................................................................4
Engrossed Substitute House Bill 1054 - Police Tactics: ................................................................................. 4
Engrossed 2d Substitute House Bill 1310 - Use of Force: ............................................................................. 6
Engrossed Senate Bill 5476 — Blake Decision: ............................................................................................... 8
Substitute Senate Bill 5066 — Duty to Intervene: .......................................................................................... 9
Substitute House Bill 1223 - Uniform Electronic Recordation of Custodial Interrogations ..........................9
Engrossed Substitute House Bill 1140 - Juvenile Access to an Attorney: ................................................... 10
Conclusionand Next Steps.....................................................................................................................................11
References..................................................................................................................................................13
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Introduction
This report was completed to outline new police -related legislative enactments and the impacts they
have on the community we serve. During the last several months, the Port Orchard Police Department
has continued to meet with our regional partners to create a unified message and explanation of the
delivery of services that will be felt throughout our State. Many of these changes take effect on July 25tn
2021. The Port Orchard Police Department's goal is to provide open and transparent communication on
these changes and their potential impacts.
In May of 2021, Governor Inslee signed 13 bills into law related to law enforcement reform, referring to
them as "the best, most comprehensive, most transparent, most effective police accountability laws in
the United States." A common them amongst these bills is that not every call to 911 be handled by law
enforcement. Legislative mandates require more law enforcement resources be made available when
making arrests and dealing with individuals demonstrating mental health illnesses or who are under the
influence of drugs and/or alcohol. It is important to note that Washington State currently ranks 50tn in
the nation for law enforcement officers per capita (USA Facts, 2021). In 2019, Washington was 6 out of
10 when ranking the top ten states with the most overworked police officers, with Washington having
the lowest ratio at 1.45 officers per 1,000 people (Torres, 2019). The Port Orchard Police Department is
currently budgeted for 1.5 officers per 1,000. Nationwide, the rate is 2.4 (FBI, 2017).
Since the summer of 2020, there have been demands across the country for police reform. Those
reforms call for social and racial justice and equitable policing. Adapting to these changes gives our
department an opportunity to change the way we respond to some incidents. These changes might
result in a phone call or a referral to a resource instead of an in -person contact with a police officer.
Proactive enforcement will focus on community safety and the preservation of life.
As a community, we need to navigate the changing expectations of law enforcement together. The role
of police in our society is being redefined. The model of community -oriented policing, of which I was
hired under (COPS initiative, passed as part of the State's 1994 Crime Bill) once provided a police officer
anytime one was requested. This has changed. Proactive efforts to prevent crime, mainly property
crimes, will become fundamentally difficult if not impossible and officers may, at times, be forced to
walk away from those who choose not to cooperate.
Below is a summary of four of the State Legislature's highest impact new laws and how they may affect
our community. We will continue to navigate these changes while prioritizing public safety concerns. We
will continue to find ways to hold those who victimize others in our community accountable. We will
work to find services for those who want to address underlying issues and causes of criminal activity.
Above all else, we will embrace the demands for racial and social justice so that our service is equitably
provided for all community members.
MATT BROWN
Summary of Law Enforcement Reform Bills
Engrossed Substitute House Bill 1054 - Police Tactics:
The police tactics bill prohibits police from using choke holds and neck restraints. It also establishes a
Criminal Justice Training Commission work group to develop training and deployment policies for the
use of police canines. The Police Tactics bill restricts police use of tear gas, military equipment to include
any firearm of .50 caliber or greater, vehicle pursuits, and establishes uniform standards for officers. The
language of this bill seemingly contradicts the separate Use of Force bill (HB 1310), in which the State
Legislature encourages officers to use less -lethal options in use of force encounters. For example, many
agencies deploy less -lethal rounds from shotguns or dedicated launching platforms. While the Use of
Force bill would support this less -lethal force tactic by police, the Police Tactics bill bans law
enforcement from using these tools as these rounds are larger than .50 caliber. Beyond these issues,
perhaps the biggest impact of this bill to the Port Orchard Community is the restriction on vehicle
pursuits. While vehicle pursuits are incredibly rare, we expect an increase in the number of persons
choosing to flee from a traffic stop. A "pursuit" is a police officer trying to stop a vehicle that evades the
stop efforts by speed increase or evasive/reckless driving.
Under this new law, police officers may now only pursue a vehicle if:
Section 7(a)(i) There is probable cause to believe that a person in the vehicle has committed or is
committing a violent offense or sex offense as defined in RCW 9.94A.030, or an escape under
9A.76; or
(ii) There is reasonable suspicion that a person in the vehicle has committed or is committing a
driving under the influence offense under RCW 46.61.502.
9.94A.030 Violent Offenses include:
Class A felonies
Manslaughter 15t and 2nd degree
Indecent liberties if committed by forcible compulsion
Kidnapping in the 2nd degree
Arson in the 2nd degree
Assault in the 1st or 2nd degree
Extortion in the 15t degree
Robbery in the 2nd degree
Drive -by shooting
Vehicular assault
Vehicular homicide
Escape from a detention facility
Escape from electronic home monitoring or custody
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Impacts and considerations:
1) The Port Orchard Police Department has not had officers trained in or authorized to use
choke holds and/or neck restraint.
2) Up until now, individual agencies decided on their own vehicle pursuit policy, and the
policies varied from jurisdiction to jurisdiction. The new requirements and restrictions will
curtail most, if not all police pursuits in this state.
Under HB 1054, an Officer is required to have probable cause that the driver has committed
a violent felony before a pursuit can be initiated. The only exception to this limitation is a
pursuit based on reasonable suspicion of driving under the influence (DUI).
"Reasonable suspicion" was the former benchmark, which is very different from the new
"probable cause" requirement. To illustrate this difference, consider this scenario: A father
calls 911 to report his 12-year-old daughter was just kidnapped out of his front yard. The
suspect is described as a white male driving a red truck that is speeding away northbound
from the house. Officers are provided this information over the radio while responding to
the call. Approaching officers encounter a red truck speeding away northbound from the
location. Officers attempt a traffic stop on that vehicle and the driver flees and begins to
elude the police.
Under the new legislation, officers would be prohibited from pursuing that vehicle, because
they only have "reasonable suspicion" based on the information relayed from dispatch, and
not "probable cause" that the driver of that vehicle committed the kidnapping. Officers
would clearly have reasonable suspicion based on the totality of the circumstances such as
the description, time, location, and actions, but it is not probable cause as required by the
new legislation. Officers would be forced to disengage and let the suspect vehicle flee, and
attempt to track down the suspect and victim later through further investigation.
Another restriction HB 1054 places on law enforcement is the requirement for an officer to
receive the approval of the "supervising officer" before initiating a pursuit. When
attempting to stop a suspect vehicle an officer activates their emergency overhead lights
and siren to indicate to the driver to pull over. If a suspect is going to flee it is at this point
the suspect will speed up and take evasive driving actions to attempt to elude. According to
HB 1054, the officer must disengage and contact their supervisor to articulate the probable
cause and receive approval to pursue. By the time that conversation and decision -making
process has been completed, the suspect will be long gone.
It is also important to note that we cannot pursue for any misdemeanors, even mandatory
arrest misdemeanor DV crimes (assault 41h DV, or violation of a No Contact Order).
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3) The Port Orchard Police Department is utilizing our records management system to track
how many vehicles fail to stop. We are also working with regional partners and Kitsap-911
to implement a new clearing code to track the number of vehicles that flee that we cannot
pursue.
4) Limits/prohibits use of tear gas (not OC spray)
• May still be used during calls involving hostages or barricaded subjects.
• Very limited use in riots with the approval from the highest elected official (in our,
case the mayor).
5) Until July 25t", 2021, the Port Orchard Police Department had been equipped with 40mm
less -lethal impact rounds. These de-escalation tools are designed to reduce the amount of
force needed to resolve a critical incident. This legislation now prohibits any firearms or
ammunition greater than .50 caliber, thus requiring us to remove these tools from our
officers. We believe the intent of the legislature is for less -lethal options to be utilized in
certain use of force situations, but the language of House Bill 1054 is clear. Our hope is that
future legislative action will allow us to again utilize these life-saving tools.
Engrossed Second Substitute House Bill 1310 - Use of Force:
It is the intent of this legislation that "the fundamental duty of law enforcement [is] to preserve and
protect all human life." A peace officer shall use reasonable care when determining whether to use
physical force and when using physical force against another person.
Section 3(1)(a): Except as otherwise provided under this section, a peace officer may use
physical force against a person when necessary to: Protect against criminal conduct where
there is probable cause to make an arrest; effect an arrest; prevent an escape as defined
under chapter 9A.76, or protect against an imminent threat of bodily injury to the peace
office, another person, or the person against whom force is being used.
Section 3(2)(a): When possible, exhaust available and appropriate de-escalation tactics prior
to using any physical force, such as: Creating physical distance by employing tactical
repositioning and repositioning as often as necessary to maintain the benefit of time,
distance, cover; when there are multiple officers, designate one as the primary
communicator. Call for additional resources such as a crisis intervention team or mental
health professional when possible. Call for back-up officers when encountering resistance.
Take as much time as necessary, without using physical force or weapons and leaving the
area if there is no threat of imminent harm and no crime has been committed, is being
committed, or is about to be committed.
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It is important to understand the difference between "reasonable suspicion" and "probable cause":
■ Reasonable Suspicion - Particularized articulable facts and circumstances that lead a reasonable
and prudent police officer, based upon their training and experience, to believe criminal activity
has happened, is happening, or is about to happen. Detention is based on the officer's
reasonable belief that the person being stopped may be involved in a particular crime.
► Governed by U.S. Supreme Court case Terry v. Ohio 1968
■ Probable Cause — Articulable facts and circumstances known to the officer that would warrant
that officer to believe that 1) a specific crime has or is occurring, and that 2) the suspect is the
person responsible. This is the threshold for an arrest.
Impacts and considerations:
1) Going forward, officers are only allowed to detain someone who is experiencing a mental health
crisis if they pose an "imminent threat" to themselves or others. The new law defines imminent
threat as: "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..."
If the officer determines that the individual in crisis does not meet the requirements for an
involuntary commit, and there is no criminal activity identified, HB 1310 states the officer must
leave the area completely and is not allowed to remain in the area to monitor the subject.
What may this look like in the community? Officers will be detaining fewer people who are
experiencing a mental health crisis and may not respond unless an "imminent threat" or
criminal activity is identified.
When appropriate, we will continue our practice of contacting individuals in crisis and offering
to assist. However, if the person does not want to interact with us and there is no imminent
threat or identified crime, our officers will leave the area as directed by the new legislation.
► Other examples: Officers are dispatched to a commercial burglary alarm at 2:00 AM. When they
arrive the find a door forced open. Upon searching the building, they find a suspect who flees
from the structure. They have not been able to reach the business owner.
Can you run after the suspect and use physical force to detain him? NO. You would not have
probable cause without talking directly to a victim. In this case, the alarm company is not a
substitute for the victim.
2) If the activity being reported is not criminal, our officers and supervisors must consider the
totality of the circumstances prior to responding (people in mental crisis, suicidal individuals,
runaways, civil standbys, evictions, parenting plan transfers, and several others.)
3) Challenges to the Port Orchard Police Department include the resources that will now be
needed to arrest a person who has demonstrated they are likely to resist arrest. Police routinely
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face uncertain circumstances with nearly limitless possibilities for danger and risk to officers or
the public. It is impossible to know or predict who will resist arrest or when. The primary
challenge of this new law is that despite the uncertainty that police face, a use of force is only
authorized in four narrow circumstances. Accordingly, law enforcement officers, specifically in
Port Orchard, will need to respond to arrest incidents with multiple officers, potentially
decreasing resources and delaying response time to other incidents.
4) Port Orchard Police participates in a Washington Association of Sheriff and Police Chiefs
(WASPC) Grant Funded Mental Health Field Response Team Program in Kitsap County.
Collaborating agencies include South Kitsap Fire Rescue, Kitsap County Sheriff's Office, Kitsap
Mental Health, and our department. Once finalized, the group will field two teams of law
enforcement, mental health professionals, and fire department medics. law enforcement
resources with South Kitsap Fire Rescue and Kitsap Mental Health. Our primary goals are to
provide crisis intervention services, refer to and promote treatment, and, when possible, avoid
incarceration and hospitalization.
5) Port Orchard Police Officers are often dispatched to calls with a potentially combative individual
experiencing medical events. Unless a crime has occurred, EMS staff will now need to take
primary responsibility for these non -criminal activity related calls. In other words, assisting the
fire department in restraining a combative person during a mental health crisis is no longer
legal.
6) Port Orchard Police Officers regularly locate missing, runaway, and at -risk children. Under the
new legal requirements, we are unable to take custody of these children unless they voluntarily
agree to come with us.
Engrossed Senate Bill 5476—Blake Decision:
The knowing possession of a controlled substance, counterfeit substance, or legend drug without a
prescription is now reduced from a felony to a simple misdemeanor. Law enforcement officers are
required, in lieu of booking a drug suspect into jail and referring their case to the prosecutor, to offer
the suspect a referral to assessment and addiction services under this legislation.
Generally, this legislation decriminalizes drug paraphernalia used to introduce or inject a controlled
substance into the human body. The State v. Blake response bill also encourages prosecutors to divert
simple drug possession charges to assessment, treatment, or other services.
Impacts and considerations:
1) In lieu of booking suspects whose sole charge is drug possession into jail, Port Orchard Officers
will generally refer these cases to the Prosecutor's Office, along with providing an individual a
referral for services. However, no standardized method for referrals or tracking referrals has
been implemented.
2) The City of Port Orchard is concerned that traditional paraphernalia -related items may be more
prevalent in the community. The city will reach coordinate with our public works department to
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educate them on the new legislation; this may impact them as related to cleaning up litter,
debris, and other hazardous items. Training and additional personal protective equipment (PPE)
may be required to provide for additional safety.
3) The law changing from a felony to misdemeanor offense will have an impact on the overall
budget related to prosecution, defense, and jail.
Substitute Senate Bill 5066 - Duty to Intervene:
Any identifiable on -duty peace officer who witnesses another peace officer engaging or attempting to
engage in the use of excessive force against another person shall intervene when in a position to do so
to end the use of excessive force or attempted use of excessive force, or to prevent the further use of
excessive force. A peace officer shall also render aid at the earliest safe opportunity in accordance with
RCW 36.28A.445, to any person injured as a result of the use of force.
Any identifiable on -duty peace officer who witnesses any wrongdoing committed by another peace
officer or has a good faith reasonable belief that another peace officer committed wrongdoing, shall
report such wrongdoing. The definition of wrongdoing varies from agency to agency and is not clearly
defined.
Law enforcement agencies are required to send notice to the Criminal Justice Training Commission of
any disciplinary decision resulting from a peace officer's failure to intervene or failure to report as
required by this section to determine whether the officer's conduct may be grounds for suspension or
revocation of certification under RCW 43.101.105.
Impacts and considerations:
1) The Port Orchard Police Department has had a policy requiring officers to intervene and report
excessive force for many years. Any violations of this policy are now mandated to be reported to
the Criminal Justice Training Commission.
Substitute House Bill 1223 - Uniform Electronic Recordation of Custodial
nterrogations:
Requires that any custodial interrogation of an adult for a felony offense, or a juvenile of any offense, be
electronically recorded starting January 1, 2022. There are limited exceptions to the electronic recording
requirement (spontaneous statements, exigent circumstances, refusal by the interviewee, interview by
another jurisdiction, reasonable belief that recording is not required, reasonable belief of safety
concern, and equipment malfunction).
Impacts and considerations:
1) HB 1223 will increase local costs that are not provided for in the state budget nor were any
funds provided to the City of Port Orchard for implementation of these requirements.
Specifically, the purchase, deployment, use, storage, and management of body worn cameras
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and other audio/video camera equipment and the associated public records and staffing costs
will be paid for directly by the City of Port Orchard.
2) The Port Orchard Police Department will be providing a proposal to Council for the purchase and
deployment of body cameras. Until then, officers will be required to conduct all interrogations
with an individual in the back of a patrol vehicle with their city issued cell phone or be taken to
the Police Department. The Port Orchard Police Department is in the process of purchasing an
upgrade to the interview room that includes the ability to record both audio and video.
Engrossed Substitute House Bill 1140 - Juvenile Access to an Attorney
HB 1140 requires that a law enforcement officer provide a juvenile (under the age of 18) with access to
an attorney for consultation prior to a juvenile waiving any constitutional rights if the officer: (a)
questions a juvenile during a custodial interrogation; or (b) detains a juvenile based on probable cause
of involvement in criminal activity or requests that a juvenile consent to an evidentiary search of their
person, property, dwelling, or vehicle.
Requires the State Office of Public Defense to provide access to attorneys for juveniles contacted by law
enforcement.
Impacts and considerations:
1) The City is concerned that juveniles will need access to an attorney expeditiously and the
resources provided by the State Office of Public Defense may be insufficient.
2) A contact list of attorneys has not yet been developed by the State Office of Public Defense.
3) This essentially ends our ability to question a juvenile involved in any type of criminal
activity.
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10
Conclusion and Steps Forward
As law enforcement officers, we have sworn an oath to uphold the Constitution and enforce
the rule of law. The role of police in our community is one that changes from year to year.
Professional policing demands we respond to and provide the type of policing desired by
our community. "One of the main issues is the shift to what types of calls to which we can or
should respond based on societal expectations, case law and liability, and the specific law
changes from the last session." (WASPC Executive Director's Newsletter June 13, 2021) To
maintain public trust, we will professionally implement the new laws and provide the
necessary training to our staff.
To ensure we have the resources available, when necessary, we will be implementing many
changes to the way we respond to calls for service. The men and women of the Port Orchard
Police Department remain committed to providing professional police services to our
community. Those services are just going to look a little different and will not always include
face-to-face contact with a uniformed police officer. As your law enforcement leader, it is
my responsibility to make sure the community members we serve are aware of the level of
service the police can provide under the new laws.
What has not changed is our mission. Our core values of Service, Honor, and Integrity still
apply, and we will continue to do the right things for the right reasons. I have included some
examples below of our new operational directives.
Service of court orders: While the law sometimes requires police to serve paper copies of
court orders, our agency has offered to serve orders even when not legally required, as a
courtesy. This practice will be changing, and service will now be completed by process
servers. Law enforcement will only serve orders if required to do so by law or court order.
Welfare Checks: Basic welfare checks of community members not engaged in criminal
activity will not result with a police response unless there are other circumstances present
to suggest that the person is a potential danger to themselves or others. These calls will be
screened, and the response will be based on the totality of the circumstances.
Suspicious Subjects: Calls will be screened but generally officers will no longer respond to
calls of suspicious activity unless there is clearly articulated criminal activity. This will include
suspected drug activity.
Juvenile Problems/Civil Issues/Disputes: Officers may not respond in -person to calls
involving juvenile problems and civil disputes that are not criminal. As an alternative,
officers will make phone contact and refer the involved parties to resources, which will soon
become available on the Port Orchard Police Department webpage.
MATT BROWN
Trespass/Unwanted Persons: Officers will respond to unwanted subject calls and may assist
in having unwanted persons removed from property if they are trespassing. However,
officers may not respond in person to trespass people who have already left the property.
Nor will they respond in person to trespass people when the property owner declines to
assist with prosecution of a criminal offense.
Suicidal Subjects: Officers may not respond to suicidal subjects who are alone, who make
threats through technology or social media, or in situations where the subject can be
contacted by phone and provided with resources.
Officers will respond if the subject is in an open area accessible to the public or is armed and
in a structure with other family members. Officers will protect those not involved and
request a crisis communicator and/or a mental health professional.
Controlled Substances: Our courts have traditionally diverted controlled substance cases to
treatment at sentencing. The new adopted practice will be to place the narcotics into
evidence and refer the case to a prosecutor for charges (after the first two diversions.)
Generally, no physical arrests will be made solely for possession of controlled substances.
Until a call is screened to confirm that actual drug activity is occurring, officers will not
respond to calls where it is only suspected. This will prevent the escalation of non -criminal
activity.
The Port Orchard Police Department is developing and will continue to develop a website of
community resources to assist in solving issues that require assistance outside of law
enforcement.
_A
Matt Brown, Chief of Police
mbrown@cityofportorchard.us
(360) 876-1700
MATT BROWN 12
i
References
Bibliography
Lofstrom, B. M. (2021, February). Public Policy Institue of California. Retrieved from
https://www.ppic.org/publication/law-enforcement-staffing-in-caIifornia/
Torres, K. (2019, February 20). Safewise . Retrieved from The 10 States with the Most Overworked Police
Officers : https://www.safewise.com/blog/the-most-overworked-police-officers-by-state/
USA Facts . (2021, April 28). USA FACTS. Retrieved from Police Departments in the US Explained
https://usafacts.org/articles/police-departments-explained/
MATT BROWN 13