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Voters may soon toughen up America’s weakest police shootings law

Not guilty.

That was the jury’s verdict in May for the police officer who shot and killed Terrence Crutcher in Oklahoma in 2016. That verdict was again handed down last month for the officer who fatally shot Philando Castile in Minnesota last year. And days later, a Wisconsin jury reached the same verdict in the case of the officer who, in 2016, shot and killed Sylville Smith.

And while last month’s shooting of Charleena Lyles, a pregnant mother killed by the Seattle Police Department officers sent to investigate her 911 call about a burglary, is still under investigation, it’s doubtful the police involved will be charged at all. In Washington state, prosecutions of such police shootings almost never even get to a courtroom.

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That’s because of a 31-year-old statute that dictates that law enforcement officers can’t be held criminally liable if they kill somebody “without malice and with a good faith belief that such act is justifiable.” Prosecutors seeking to charge officers must show they acted with what’s called “evil intent” — a standard critics argue is nearly impossible to prove in court.

The Washington statute is, in the words of American Civil Liberties Union Deputy Legal Director Jeffery Robinson, “absolutely the most restrictive law in the country” when it comes to holding law enforcement officers accountable for using unjustified deadly force. Since it was enacted in 1986, only one police officer has ever been charged in state court with illegally using deadly force while on duty, a 2015 Seattle Times analysis found.

De facto immunity

Washington State Legislature’s efforts to reform the law have so far been paralyzed thanks to resistance from law enforcement groups, so on Thursday, community organizers launched a campaign to hand Washington voters the power to change it instead: They’re now gathering signatures to put a proposal on Washington’s 2018 general election ballot that would rewrite the state’s deadly force statute and make prosecuting police officers more feasible.

“There’s a de facto immunity in our law,” said campaign chairman Andrè Taylor, who started the police reform organization Not This Time after two Seattle police officers shot and killed his brother Che in 2016, thanks to their incorrect belief that he was reaching for a gun at his hip. “It doesn’t make it easier to prosecute an officer. It makes it possible.”

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“The only charge you could bring would be first degree murder,” said Democratic state Rep. Roger Goodman, who helped spearhead the legislative push to change the statute earlier this year. Generally, a first degree murder charge requires that the homicide be premeditated, on purpose, and with the deliberate intent to do harm. Goodman added, “A law enforcement officer would [have to] say, ‘You’re black, and I hate you, and I’m going to shoot you dead now.’ And that just doesn’t happen. So there is an effective bar to any accountability under the law.”

“It doesn’t make it easier to prosecute an officer. It makes it possible.” — Andrè Taylor

It’s not as though police shootings are less common in Washington than in other states. So far this year, a Washington Post analysis found that 16 people have died at the hands of law enforcement in the state. That’s a rate of 2.27 shootings per 1 million people — higher than rates in more than 30 other states.

And after Lyles’ shooting last month made national headlines, her relatives attended the initiative’s Thursday launch and spoke out in favor of police accountability and the initiative’s provision that officers administer first aid. The Seattle Police Department remains under a Department of Justice consent decree.

The ballot campaign is by no means Washington’s first attempt to reform policing and deadly force. In 2016, the State Legislature convened a task force composed of lawmakers, representatives from law enforcement organizations, and minority groups to examine Washington policing. That task force, which both Robinson and Daugaard worked with, turned in a report with a number of recommendations, including changing the deadly force law, increasing officer training, and setting up statewide databases on police use of deadly force. Those recommendations were then used to create a number of state bills this year that ultimately failed to move forward.

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“Not all of the law enforcement groups were willing to come to the table [until] it was too late,” Goodman explained. “I understand law enforcement’s hesitation in even wanting to make a deal. They are very afraid of any change in the statute and its effect on how they practice their profession on a daily basis.”

The Washington State Law Enforcement Association, the Washington Association of Sheriffs and Police Chiefs, the Washington Council of Police and Sheriffs, and the Seattle Police Officers Guild did not return VICE News’ requests for comment.

A “reasonable” standard

Under proposed language, initiative organizers say, officers would not only have to “sincerely” believe that the use of deadly force was warranted but would also have to show that “a reasonable officer” would have agreed that using deadly force was essential to keep people from getting hurt. Twenty-seven other states already use some variation on the “reasonable” standard in their statutes surrounding police officers’ use of deadly force.

The ballot initiative also includes provisions mandating that officers receive extensive training on mental health, de-escalation, and bias in policing and requiring police to always provide first aid. It will also institute independent investigations of killings by police.

“[That training is] consistent with all the best thinking today and could have a major impact,” said Samuel Walker, an emeritus professor who studies police accountability at the University of Nebraska Omaha. “By putting in a state statute you’re going to compel all these local police departments to do it. I mean, the real problem we have in this country is we have 18,000 local police departments… And there’s no central controlling authority. A state statute would make it controlling for all.”

To get on the 2018 general election ballot, the campaign’s organizers will need 260,000 signatures and to raise at least $800,000 by the end of 2017. Still, organizers are hopeful — and between the task force, the failed state bills earlier this year, and the initiative, this is the largest and most comprehensive effort in years to change the law.