Spokane top law officers back reform of state’s deadly force law, but disagree over how it should be done

Spokane’s top two law enforcement officials support reforming the state law governing how police officers could be charged in connection with using deadly force.

But they don’t support the initiative on the state ballot to make the change.

“I-940 needs to be defeated,” Sheriff Ozzie Knezovich said. “940 is bad law.”

Meanwhile, attorneys who represented the family of Otto Zehm, whose death in police custody in 2006 led to the federal conviction of Spokane police Officer Karl Thompson five years later and significant police reform in Spokane, back the measure. They say that had the law been changed earlier, county prosecutors would have been likely to file charges against Thompson.

“Not only would Karl Thompson have been charged within the county, but a number of other cases that have been prominent in the news would have gone forward, had it not been for the requirement of showing malice,” defense attorney Jeffry Finer said. “It’s a very difficult standard. It gives so much protection to police.”

Washington law has one of the most stringent requirements in the nation for charging a police officer in a deadly force incident. It requires that an officer to have acted with “malice” in order to face charges. Initiative 940 would remove malice as a requirement, but maintain the “good faith” language, adding a definition that requires a test asking what a reasonable officer would do in the same situation.

Law enforcement groups and supporters of I-940 worked out a compromise that both sides hoped would be put on the ballot, but it was rejected by the Washington Supreme Court in August. Only the original language of I-940 will make it to the general election ballot, not the alternative.

Knezovich sharply criticized I-940, saying in its current form, the law was “poorly written” and “quite frankly, poorly thought out,” as compared to the compromise legislation, which offered clarifications he agreed with.

As for malice, he admitted it was a tough standard to overcome but figured state law already is trumped by the U.S. Supreme Court’s ruling on police use of force. Specifically, on Tennessee V. Garner, a 1985 decision in which the court ruled an officer can use deadly force to “prevent the escape” of a suspect, and if he or she has probable cause to believe the suspect “poses a significant threat of death or serious physical injury to the officer or others.”

In addition to dropping malice, I-940 would also require law enforcement officers to render first aid to suspects, to undergo de-escalation and mental health training, and that community stakeholders have a say in setting further training requirements – all things Knezovich said his deputies are already doing.

“There’s a lot of this that is trying to fix a problem that doesn’t exist,” he said. “940 goes way too far in trying to address something they didn’t understand.”

Knezovich said rather than focus on police shootings, proponents of police reform should look to what he calls the state’s “broken mental health system.”

“If a police officer is dealing with a mental health issue, it very rarely goes well,” he said. “This shows once again just how broken the mental health system in the state of Washington and in the United States is.”

Spokane police Chief Craig Meidl, appointed in 2016 by Mayor David Condon who ran against then-Mayor Mary Verner on a platform of police reform, said he also supports House Bill 3003 but didn’t disagree with the full intent of I-940.

But like Knezovich, he said his department already meets many of the new requirements the law would ask for, including mental health and crisis intervention training.

“I understand the desire and the need for the change,” he said. “I don’t disagree with the fact that it should be updated. I think, from where I come from and with the House Bill 3003, the alternative, it helps clarify some unintended consequences that have occurred.”

Both men, however, worried the changes to the law would have an unintended consequence on recruiting efforts. Knezovich, who’s been vocal in the past about what he sees as a national disinterest in law enforcement as a career, said the lack of restrictions could create a further chilling effect. The sheriff’s office recently hired five new deputies.

Local defense attorney and City Councilman Breean Beggs, who represented Zehm’s estate in the civil lawsuit against the city, disagreed with the sheriff’s position, saying officers are trained well and often enough to hold their own in most situations. And, he said, if their lives are at stake, they aren’t going to delay.

“They have plenty of protections,” he said of police. “Having that special sort of pass that you can never be held accountable, that to me means they might be less careful, and have a worse relationship with the public.”

Zehm, 36, died after he was struck in the head with a police baton, hogtied and placed on his stomach with a mask over his face inside a convenience store in north Spokane in 2006. He was confronted by officers after callers reported suspicious behavior, but he had not committed a crime.

The officer who used the baton, Thompson, was convicted in federal court in 2011 of violating Zehm’s civil rights and lying to investigators.

County Prosecutor Larry Haskell, who was first elected in 2014 and is running unopposed this year for re-election, said he didn’t have a strong opinion on I-940. He also said he wasn’t sure if it would have had an impact on any of the police shootings he’s investigated since leading the office.

Regardless, he said he’d support it wholeheartedly if voted in because, “If people speak, it’s a constitutional-level right they have, and we do the things the people say.”

Last year alone, Spokane police shot seven people – the most for the department since at least 1995, according to department data. Five of those shot died from their wounds. One person was shot by a sheriff’s deputy.

In each instance, the person killed by police had a weapon. All of them were in the process of committing a felony – something Haskell said met the requirement for a justified shooting, regardless of intent.

Even so, he wasn’t sure Zehm’s death would have resulted in criminal charges – if the malice requirement weren’t part of the law – had he been prosecutor at the time, though several attorneys interviewed for this story disagreed.

“The analysis would have been there potentially, whether or not somebody acted with criminal negligence or recklessness by putting the spit mask on him while he’s on his stomach,” he said. “But I’ve read reports that said Otto Zehm died by being beaten to death by Spokane police, and I don’t think that’s an accurate statement of facts.”

Finer, who was Beggs’ co-council on the civil suit, disagreed that Zehm’s death wouldn’t meet the threshold. He said Thompson was plainly shown on the convenience store video, before officers were equipped with body cameras, striking Zehm in the head in an over-the-head motion – a clear indicator of deadly force.

“He targeted areas that are not allowed,” he said. “And I’m pretty sure, without the malice, that most prosecutors would have seen a green light to charge.”

Meidl, who was one of many Spokane police officers who saluted Thompson after he was convicted of civil rights violations in Zehm’s death, and who has since apologized to the public and the Zehm family, said the department at the time could have benefited from some of the reformative changes offered in I-940.

“I think as an agency, and I’m not indicting anyone, nobody is perfect, but there were a number of things that exacerbated the situation,” he said. “In hindsight, we could have done better.”