Washington attorney general’s office says police can still respond to non-criminal incidents

Washington’s new police use-of-force law does not prevent officers from responding to non-criminal calls. That’s the upshot of a legal memo from the Attorney General’s office.

In a memo to state lawmakers this week, the Washington Attorney General’s Office (AGO) said a new police use-of-force law that recently took effect does not prevent officers from responding to mental health and other community welfare calls.

Several Washington police agencies had signaled their intent to stop responding to calls for service involving non-criminal activities because of HB 1310. That law, which took effect along with several other sweeping police reform measures July 25, instructs officers to, among other things, exhaust de-escalation tactics and “[leave] the area if there is no threat of imminent harm and no crime has been committed.”

But the AGO in its memo said that nothing in the use-of-force law prevents officers from responding to “community caretaking” calls or continuing to assist mental health crisis responders.

That guidance was sent August 2 to the chair and vice chair of the House Public Safety Committee regarding HB 1310. In that privileged communication, which the Democratic lawmakers released Thursday, Deputy Solicitor General Alicia Young and Assistant Attorney General Shelley Williams wrote that the law “neither alters nor limits [the] authority” of police to respond to non-criminal calls for assistance.

The attorneys said that Washington courts and law recognize something called the “community caretaking doctrine” and cited a 2019 Washington Supreme Court opinion that called police officers "jacks of all trades" who "frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime.”

“Bill 1310 does not prohibit peace officers from responding to community caretaking calls, including mental health calls,” the memo concluded.

However, the attorneys included a disclaimer noting that the memo does not constitute a formal legal opinion from the AGO, but instead represents the “carefully considered legal opinion” of the authors.

Rep. Jesse Johnson, the vice chair of the Public Safety committee and the prime sponsor of HB 1310, said in a statement Thursday that he plans to request a formal opinion from the AGO, which could take several months.

In the meantime, Johnson said, “We hope this robust guidance from the Attorney General’s Office is clarifying. We have been working with law enforcement agencies and organizations to ensure they have the clarity to do their jobs.”

Recently, some Republican lawmakers have called for a special session of the Legislature to amend and clarify the police reform laws.

In July, the Washington Association of Sheriffs and Police Chiefs (WASPC) sent a letter to its members that said legislative action would be the best way to address “unintended consequences” of the new laws, but also said an AGO opinion “can be helpful.”

That same letter acknowledged “ambiguities” in the use-of-force law, but was explicit that nothing in HB 1310 prohibits police from responding to a call for service.

“What an officer is allowed to do while on scene is now substantially different, but we see nothing that prohibits or otherwise limits the ability for an officer to respond to any call for service,” wrote Steve Strachan, WASPC’s executive director.

Strachan also warned agencies that adopting a policy of not-responding to certain calls could run afoul of the public duty doctrine.

WASPC shared the AGO memo with its members on Thursday. But without a change in the law or a formal legal opinion, police agencies are unlikely to change their approach to the new use-of-force law. While some chiefs and sheriffs, like Seattle police Chief Adrian Diaz, have said the new law won’t prevent officers from responding to non-criminal calls, many others have made it clear they’re not likely to respond to some calls.

For instance, in a joint statement last month, several law enforcement agencies in Thurston County wrote that, “In most instances, police will no longer respond to ‘community care’ situations where identifiable crimes have not been committed.”

But Olympia interim police Chief Aaron Jelcick, who signed onto that statement, agreed Thursday that there’s nothing in the new use-of-force law that prohibits police from responding.

“I don’t think there’s anybody who would tell you you can’t go, but once you go you may be put in a position where you have difficulty complying with the use of force components of [the new law],” Jelcick said.

In Olympia, Jelcick said, the plan is to rely more on a team of unarmed crisis responders to go to behavioral health calls. Currently those teams don't provide around-the-clock service, but Jelcick said he expects the city will soon make that service available 24/7.

“If somebody’s in crisis, they’re going to get a response from our police department,” Jelcick said. “That response may look different from other places based on the fact that we have crisis responders built into our [department].”

Other Thurston County jurisdictions do not have a similar non-law enforcement response team, although the neighboring city of Lacey is in the process of standing up a similar team, according to recent reporting by The Olympian.

Jelcick emphasized that he supports the new use-of-force law and believes it will serve as a catalyst to improve how police agencies respond to people in crisis.

Already the change in approach is having an impact at the street level. Even before the new law went into effect, Designated Crisis Responders (DCRs) in Thurston County said they were having a hard time getting officers to assist them with mental health calls.

Previously, police officers would often meet the DCR at the scene and then assist with the transport of the person if they were deemed to meet criteria for civil detainment. But after the law passed, that changed, said Joe Avalos of Olympia Health and Recovery Services.

“I think I can say that this wasn’t on our radar, that this would happen as a result of legislation,” Avalos said in an interview in June. “I do think it was unintended.” [Copyright 2021 Northwest News Network]