Washington citizens to wield more power in police shooting investigations

A week before the investigation of Kevin Peterson Jr.’s death was released to the public, a retired criminal defense attorney in Camas took issue with investigators’ retelling of the Oct. 29 attempted drug sting.

J.J. Paul approved of most of the investigators’ press releases, he said, except for details about the officers’ thoughts as they fired their guns at Peterson. Paul, age 72, said some descriptions made officers sound more confused than they were in reality.

He told investigators they should let the facts speak for themselves.

Related: Clark County officers recount chaos leading up to moment they killed Kevin Peterson Jr.

“(The lead investigator) looked at the investigation in a different way. Or at least, he was ready to report the investigation in a different way,” Paul recently told OPB. “I believe that way was more exonerating to the police.”

Paul served as one of the investigation’s two non-law enforcement members. Civilian presence on police shooting investigations in Washington is required by Initiative 940, a 2018 measure that pushed for more public involvement.

Paul’s objection to the police narrative of the Peterson killing, albeit brief, was a rare moment of dissent in an active investigation. Rarely are people who are uninvolved in law enforcement able to look behind the curtain, let alone criticize, before investigators finish a review and jettison it to another legal apparatus.

That type of criticism could become more common soon.

Next summer, it could be possible to see Washington’s officer-involved shootings handled by a significant number of people outside from law enforcement, like Paul, as more traditional investigators find themselves on the outside looking in.

Last week, lawmakers agreed to create an Office of Independent Investigations. The office, which could cost $50 million over the next four years, will hire and train a team of investigators whose only resume criteria so far is that they cannot be current police. They must be at least two years removed.

The new office will answer directly to the governor. Gov. Jay Inslee is expected to sign the bill this week.

The goal, lawmakers said, is to someday phase law enforcement professionals out of deadly force investigations entirely. As the bill wound its way through Olympia, law enforcement groups cast doubt on its effectiveness.

Shooting investigations are already tricky, they said, and when officers are involved the public glare intensifies. Police also claimed the public’s inexperience with investigations could present issues for prosecutions.

“What we want to do over time is to create a non-police investigative force,” said Rep. Debra Entenman, D-Kent, the bill’s chief sponsor. “And, of course, law enforcement is convinced they are the only ones that can do the work.”

Citizens to investigators

When Paul’s email landed in the inbox of Troy Brightbill, the chief criminal deputy with the Cowlitz County Sheriff’s Office, Brightbill was still getting used to working closely with civilians on sensitive investigations.

It was November 2020. Brightbill, an officer with 22 years at the sheriff’s office, was leading his second independent investigation under I-940, having completed his first just a month prior. He was still learning what it required, he said, especially for people in Paul’s role.

They aren’t investigators, and Brightbill described the civilian roles as more of a check and balance.

“Initially, some of them thought they were going to be investigators themselves, collecting evidence, interviewing witnesses,” Brightbill said. “Really, their role is to monitor the investigation and look for any concerns of bias in the investigation.”

Six months later, with the creation this month of the Office of Independent Investigations, that balance is shifting further. The bill lays the framework for some law enforcement to be involved in investigations of police shootings, but Entenman and supporters said the bill lays the groundwork for the investigations office to grow into a team with almost no policing roots.

A director, to be hired by an 11-person advisory board, will have to have experience in criminal investigation or prosecution, the bill states.

But the investigators— who will be trained by the state’s Criminal Justice Training Commission to become limited-authority peace officers under Washington law — must be at least two years removed from any professional ties with law enforcement.

Law enforcement groups turned out to oppose that two-year requirement as the bill wound its way through public hearings in Olympia in February and March.

“We take strong issue with the language in the bill that appears to allow civilians to conduct complex homicide investigations, which we think would frankly jeopardize the viability of any prosecution that may come from it,” said James McMahan, of the Washington Association of Sheriffs and Police Chiefs.

Case building requires interviewing witnesses, gathering arrays of evidence, and writing reports. It could also mean testifying in court. Detractors said they worry the bill’s training requirements will set rookie investigators up to fail.

“The first time an officer writes a report, I don’t want that report to be on a homicide case,” said Russell Brown, a former prosecutor and now executive director of the Washington Association of Prosecuting Attorneys.

Opponents also said they felt the ink wasn’t dry yet on the reforms made by I-940.

“We believe to expend millions of dollars is not warranted until we understand the facts of what is and what is not working,” the Washington Council of Police and Sheriffs, a separate organization, said through its lobbyist at a public hearing.

Yet, people who pushed for I-940 to become law view the initiative as falling short. This legislative session’s new bill was hatched after I-940′s most notorious failure: Washington State Patrol had to investigate the March 2020 death of Manuel Ellis in Tacoma police custody after it was learned the first investigators, the Pierce County Sheriff’s Office, failed to disclose a sheriff’s deputy had helped Tacoma police detain Ellis before he suffocated to death.

Related: Washington changed police shooting investigations, but trust remains in low supply

Afterward, Inslee convened a task force of police reform advocates, including many who pushed for I-940. It was then that the independent office idea arrived.

To people who have lost loved ones in police shootings, officers can’t separate themselves enough.

“No matter what, as long as police are investigating police, no matter what the circumstances are, they will find it justified,” said Fred Thomas. Thomas pushed for I-940 after officers with the Lakewood Police Department shot and kill his son Leonard Thomas, who was unarmed.

In February, the state Attorney General’s Office found that just five out of 18 deadly force investigations under I-940 met the new law’s standards. The report found many of the regional teams did try, but that agencies can “experience challenges” to meet new standards.

That review didn’t include the investigation into Kevin Peterson Jr.’s death, where at least one relationship intertwined the involved agency with its investigators — until a local prosecutor stepped in.

Before Clark County Prosecutor Tony Golik asked Brightbill and Cowlitz County to take over the case, a Camas Police Department captain, who is married to a Clark County Sheriff’s Office sergeant, would have led it. Clark County was the agency responsible for Peterson’s death. The marriage wasn’t mentioned when the captain signed conflict-of-interest statements because it only asked about the captain’s relationship with officers who fired their guns.

With the new office, Brightbill said that even if investigators aren’t police, he hoped they hire former homicide investigators.

“Anyone in this line of work, when they’re involved in a deadly force incident, if nothing else, they want to know that somebody who knows what they’re doing is responding to investigate,” he said. “So I hope they hire the right people.”

States of accountability

Even as several states attempt tectonic shifts in policing, experts say Washington’s push for a statewide, firewalled office of investigators appears unique.

This month, Maryland became the first state to repeal its Law Enforcement Officers’ Bill of Rights to change how police can use force and how that force is investigated. Virginia empowered civilian review boards. Florida has momentum in a push to limit police chokeholds and collect better deadly force data.

Changes to policing are so geographically widespread that the National Association of Civilian Oversight of Law Enforcement, based in Indiana, is struggling to track them all, according to Cameron McEllhiney, the organization’s director of training and education.

Although protests swept through the country last year, she said, it has been rare that states not directly tied to the highest-profile incidents actually pass new laws. That has started to change lately.

“It looks like elected officials are finding it much more politically expedient to establish oversight on the front end of things, to help potentially stave off tragedy, rather than waiting until it happens,” McEllhiney said.

New Jersey, in 2019, began routing all death investigations involving law enforcement directly to the state’s attorney general.

Still, Washington’s push for an independent office stands out. McEllhiney said that’s because, although independent investigative agencies exist in some cities or counties, Washington’s appears to be among the first statewide independent office to investigate police shootings in the United States.

“From what I know of Initiative 940, moving (investigations) to the next county was not working for community members,” she said. “So finding a solution that might work better for communities should always be the goal.”

In drafting House Bill 1267, Entenman, its chief sponsor, said she modeled her legislation after the Office of Independent Police Review in Ontario, Canada.

Within Washington’s own borders, experts said the new office shows how quickly things are changing in the state.

Citizen review boards have existed in many places, noted Karin Martin, of the University of Washington, but haven’t always held police accountable as they were designed. Now that’s graduated to I-940 and soon to the new investigating office.

“Keeping in mind what’s happened since early 2020, and the level of urgency around this now, makes me not totally surprised we’d see this action,” Martin said.

More bureaucracy isn’t always the answer, she added, but more people want to be involved.

“To me, it’s a version of direct democracy, right?” Martin said.

The office, at least initially, won’t have the manpower to take on more than a handful of cases per year. That means many deadly force cases will continue to land with regional investigative teams.

According to the Fatal Encounters database, which tracks all manner of deaths by police, agencies in Washington killed 55 people in 2020.

Entenman said regional teams and the office created by HB 1267 will ultimately reduce that number.

“(The bill) is not an anti-police measure,” Entenman said. “I believe 1267 a pro-public safety measure for all of us. Safety for all of us. Right now, all of us don’t feel safe.”