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May 15, 2021

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Washington Legislature: Elected officials must OK tear gas use by cops

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SEATTLE — Mayors, county executives or even the governor would have to give their approval before police could use tear gas to quell riots under a compromise reached Thursday in the Washington Legislature.

The deal came as a conference committee of the House and Senate reconciled versions of a police tactics bill already passed by each chamber.

The measure, a centerpiece of the Democrats’ police-reform agenda, addresses a wide array of police tactics and gear in response to the killing of George Floyd and other Black people by officers, as well as the protests they inspired. It would ban the use of chokeholds, neck restraints and no-knock warrants, limit the use of high-speed pursuits, and restrict the acquisition of military equipment by police departments.

One of the thorniest issues in the bill has been restrictions on the use of tear gas. The version passed by the House would have allowed it, with restrictions, to quell public riots that threaten serious harm; for riots in prisons or jails; or to deal with barricaded people or hostage situations.

The Senate version banned the use of tear gas on the public at the behest of Democratic Sen. Jamie Pedersen, the chairman of the Law and Justice Committee, who lives on Seattle’s densely populated Capitol Hill — the neighborhood that was at the heart of the city’s sometimes violent protests last summer.

In the midst of a respiratory pandemic, residents who were uninvolved in the protest reported feeling the effects of tear gas in their apartments; one couple described dousing their baby’s eyes with breast milk to ease the burning.

Pedersen said he couldn’t imagine continuing to allow police to use tear gas on the public, but the measure’s lead sponsor, first-term Rep. Jesse Johnson, D-Federal Way, said he believed it was appropriate to address threats to life — not merely vandalism or property damage.

Under the compromise adopted Thursday, officers can deploy tear gas at riots, but only with the prior approval of the highest elected official in the jurisdiction. That would mean the county executive in counties, the mayor in cities, and the governor in the case of the Washington State Patrol.

“Although I would prefer personally a flat ban, I’m comfortable that, particularly in a situation where tear gas is proposed to be used on members of the public, that there is going to be somebody who has real accountability to the voters for the decision,” Pedersen said.

In addition to requiring approval from elected officials, the bill requires police to exhaust appropriate alternatives before using tear gas; announce their intent to use it; and give those present time and space to disperse.

Officers will still be able to use pepper spray, which is typically deployed in a stream rather than as a broad cloud, without such approval.

The compromise is expected to receive final approval from the Legislature and head to Gov. Jay Inslee’s desk before the session ends Sunday, as is another measure approved by the conference committee Thursday: a bill demanding that officers exercise “reasonable care” when using force.

It requires police to try de-escalation tactics when possible, including simply leaving if there is no imminent threat and no crime has been or is about to be committed. Officers must use the least amount of force possible when they do use force, and officers may use deadly force only when necessary to protect against an imminent threat of serious injury or death to the officer or another person.

It also makes clear that while neck restraints and chokeholds are banned and officers may not be trained to use them, they won’t be held criminally liable for using those or other banned tactics to protect their own life or someone else’s from an imminent threat.

If signed by the governor, the measure would mark the first time Washington had a statewide standard for use of force by police.

Earlier this week the Legislature gave final approval to two other key police accountability bills. One requires officers to intervene if they see a colleague using or attempting to use excessive force and they’re in a position to do so. The other, described as the teeth of the police accountability package, makes it easier to decertify police for bad acts and expands civilian representation on the Criminal Justice Training Commission.

Of 16 police reform bills the Democrats proposed this session, 11 have passed each chamber. Inslee has already signed one reforming the arbitration system by which officers can appeal discipline. It passed with bipartisan support.

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