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Controversial I-940 would make it easier to prosecute police who misuse lethal force

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SEATTLE -- Voters in Washington are deciding on a controversial initiative that would change the standard for investigating law enforcement's use of deadly force.

If I-940 passes, it would remove the word "malice" from lethal use-of-force investigations, meaning prosecutors would no longer have to prove that officers acted with "malice" in order to charge them for deadly encounters on the job.

It would also require law enforcement officers statewide to receive de-escalation, mental health and first aid training.

The initiative was spurred by De-Escalate Washington in response to several high-profile police shootings and the Black Lives Matter movement. And while supporters say it's a move to unite and bring Washington state on par with most other states, it's an issue that has divided the law enforcement community and caused some confusion for voters.

"Washington state is the only state that has a malice clause," explains Monisha Harrell, board chair of Equal Rights Washington. "We would like to move to a standard that is in the majority of other states across the country ... we know there is no one solution that will fit every single situation, and there’s never going to be a time where we will completely eliminate lethal use of force incidents ...  but what we can do is we can minimize those incidents."

But for officers like Mike Solan, a 20-year Seattle PD veteran and president of the Council of Metropolitan Police and Sheriffs, the language of the initiative reveals a "political hole within."

"It really exposes their true intent is to prosecute police," Solan said. "The burden of proof was typically put on the prosecutor, but now within 940’s language, that burden is now on the officer to explain their actions, and if they fail to meet one of those two tiers, that’s the open door for political prosecutions."

The two tiers Solan is referencing are the two standards that would justify using lethal force, if the initiative passes: Did the officer fear for his or her life? Would another reasonable officer have done the same thing?

It's the same standards being used in dozens of other states, the ones that paved the way for a Chicago jury to convict a police officer of murder for shooting and killing a 16-year-old boy.

Here's where the added confusion comes in: De-Escalate Washington got enough signatures to send the initiative to the Legislature, which then put the measure on the ballot. But critics raised concerns over the language of the measure, so the Legislature amended it and added a "good faith clause" that both sides viewed as an acceptable compromise.

Gov. Jay Inslee signed the amended initiative, but it was challenged in court. The state Supreme Court disapproved of the process, ruling that I-940 must go on the ballot in its original form.

Carlos Bratcher, who spent 26 years with the King County Sheriff's Office and represents the Black Law Enforcement Association of Washington, supports the measure.

"We’ve seen too many incidents where certain departments, had the training in place and their officers were trained, the outcomes could have been a little different, so that’s why this is vital," Bratcher said.

Proponents of I-940 argue that the goal is to prevent tragedies and loss of life, while opponents believe it will cause officers to hesitate during split-second decisions and drive away potential police recruits.

"I've been on 20 years, and I'm questioning whether or not I want to do this anymore," Solan said. "Is it worth it for me to be stripped of my liberty, to be removed from my family and to be financially ruined? What job is that OK with? What happened to police as public servants that are here to protect you? Somehow that narrative has been lost, and I think that should have everybody concerned."

Bratcher, on the other hand, believes the measure would help to restore confidence in policing, which could in turn attract more people to the profession.

"I think if a person wants to get into this line of work, and they see it's a department that officers are adequately trained and there's that connection with the community ... I think it's a good tool to draw people in."

The Washington Council of Police and Sheriffs is urging people to vote no on I-940. Representatives say they supported the compromise measure that the Supreme Court wouldn't allow on the ballot, and if this initiative passes in its original form, it would be much more difficult for the Legislature to create a compromise bill that law enforcement supports.

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