2022 Legislation About Public Safety

Editor's note: This blog has been updated with a link to the new Washington Attorney General’s Office model policy on law enforcement use of force and de-escalation tactics consistent with new standards adopted into law.

This blog discusses three bills passed in 2022 related to law enforcement practices. Please review my previous blog, New Laws About Public Safety, for details about several 2021 laws on public safety.

Permissible Uses of Force

In 2022, the Washington State Legislature passed two laws (HB 1735 and HB 2037) with changes to the previously enacted permissible uses of force law in chapter 10.120 RCW.

HB 1735

As background, section 1 of HB 1735 (effective March 4, 2022) states the legislature’s intent and explains:

While the newly established civil standard in RCW 10.120.020 is unique insofar as it is codified in state law, it represents national best practices developed by police leaders across the nation. The legislature does not intend to abrogate the criminal liability protections afforded to peace officers in chapter 9A.16 RCW. 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. The legislature recognizes the profoundly important role peace officers have in protecting communities, and further recognizes that implementing and enforcing these best practices will improve public safety for all persons across the state.

Previously, the use of physical force was authorized by RCW 10.120.020(1)(a) in one of four circumstances. Specifically, the use of force was allowed 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 RCW; or
• Protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.

Released in January of this year, AGO 2022 No. 1 (use of physical force by law enforcement) looked at whether physical force could be used in any situations other than the four listed in the law and urged legislative clarification.

The use of physical force is now authorized in five additional circumstances (and two more passed in HB 2037). The use of force is authorized to the extent necessary to:

• Take a person into custody, transport a person for evaluation or treatment, or provide other assistance under chapters 10.77, 71.05, or 71.34 RCW;
• Take a minor into protective custody when authorized or directed by statute;
• Execute or enforce a court order authorizing or directing a peace officer to take a person into custody;
• Execute a search warrant;
• 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
• Protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.

The use of deadly force is now authorized only when necessary to protect against an “immediate threat of serious physical injury or death” rather than an “imminent” threat. According to the Final Bill Report for HB 1735:

The provision regarding use of deadly force is modified by replacing the term "imminent threat of serious physical injury or death" with "immediate threat of serious physical injury or death," distinguishing it from the restrictions on the use of physical force, but otherwise retaining the same definition. 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.

This new law also moves the definition of “de-escalation tactics” from RCW 10.120.020(2) to RCW 10.120.010 with the other applicable definitions.

HB 2037

The second new law changing these use of force provisions is HB 2037 (effective March 17, 2022), even though changes made by HB 1735 are not cross-referenced in this bill. Although previously undefined, “physical force” will now be defined in RCW 10.120.020:

(6)“Physical force” means 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 handcuffing where there is no physical pain or injury.

This law added two more circumstances where physical force may be used to the extent necessary to:

• 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; or
• Take a person into custody when authorized or directed by statute.

The definitions of “necessary” and “totality of the circumstances” are moved from RCW 10.120.020 to RCW 10.120.010.

In addition, “deadly force” is defined to have the same meaning as provided in RCW 9A.16.010(2):

“Deadly force” means the intentional application of force through the use of firearms or any other means reasonably likely to cause death or serious physical injury.

As in HB 1735, a permissible use of deadly force now requires an immediate threat instead of an imminent threat, using the same definition.

Military Equipment and Less Lethal Munitions

RCW 10.116.040 prohibits law enforcement from acquiring and using military equipment. HB 1719 (effective March 4, 2022) amends the statute to change part of the definition of “military equipment.” This law replaces “firearms and ammunition of .50 caliber or greater” with “rifles of .50 caliber or greater.” A definition of “rifle” is added to the same section:

(3)(c) “Rifle” has the same meaning as provided under RCW 9.41.010, except “rifle” does not include: Any shotgun, as defined under RCW 9.41.010; any device designed or used to deploy less lethal munitions including, but not limited to, rubber, bean bag, soft nose, sponge, or other nonpenetrating impact rounds; or any less lethal equipment.

This change now allows law enforcement officers to use certain shotguns and other devices for deployment of less lethal munitions. In addition, there may now be more flexibility to use military “ammunition of .50 caliber or greater” and other firearms that are not within the new definition of “rifles.”

Model Policies for Use of Force and De-escalation Tactics

The requirements and deadlines in RCW 10.120.030, which were established in 2021 by ESSHB 1310, are unchanged. By July 1, 2022, the Washington State Attorney General (AGO) is required to develop and publish model rules for law enforcement’s use of force and de-escalation tactics. By December 1, 2022, law enforcement agencies must adopt and provide to the AGO their own policies consistent with the anticipated AGO model rules.

As local law enforcement agencies in Washington continue to update their policies and practices, it is important to work closely with legal counsel. Your risk insurance pool representatives may also have current guidance about best practices in law enforcement tactics and public safety.