As most of us know, George Perry Floyd Jr. was a Black American man killed in May of this year during an arrest in Minneapolis, MN. The event was a tragedy that sparked countless protests throughout our country in the support of civil rights, the Black Lives Matter movement (“BLM”), and legislation to prevent and punish acts involving police misconduct. The latter consists of illegal acts conducted by police in the performance of their official duties (e.g., using excessive force).

The following answers many often asked questions on the topic of police misconduct in Washington. If you or a loved one has been the victim of police misconduct, please seek assistance from a personal injury attorney. Alternatively, if you are an officer and believe you are being unfairly accused of misconduct, contact our firm’s trusted criminal defense attorneys now.

1. What is “police misconduct” under Washington law?

2. What are the penalties for police misconduct?

3. What is a Section 1983 claim?

4. Can police misconduct lead to criminal charges?

5. Can police ever use a level of force in the performance of their duties?

6. What can people do to prevent misconduct when questioned for or suspected of committing an offense?

1. What is police misconduct under Washington law?

Given the news and events that have recently spread across the U.S., most people associate “police misconduct” with authorities using excessive force in stopping a suspect or in making an arrest. This is absolutely true. But police misconduct can include other acts as well.

Washington’s main law on the topic is RCW 9A.80.010, and the statute defines “official misconduct.” The law says that a public servant (which includes law enforcement personnel) are guilty of misconduct when:

1. He or she intentionally commits an “unauthorized act” under the color of law, or
2. He or she intentionally refrains from performing a duty imposed upon him or her by law.

“Unauthorized acts” under this law include:

• The use of excessive force,
• Unlawful searches and seizures,
• Wrongful and false imprisonment,
• False arrest,
• Police brutality, and
• Abuse of power.

All of these acts are considered unlawful police misconduct.

Note that the second part of the statute also makes it misconduct for authorities to fail to perform some lawful act. Examples of this type of misconduct may include an officer not:

• Stopping or arresting a person suspected of committing a crime,
• Protecting the public from harm, or
• Reading a person his or her Miranda rights in the event of an arrest.

2. What are the remedies for police misconduct?

A “legal remedy” is a way in which the legal system tries to uphold justice when certain legal rights are involved.

In this particular context, there are three main remedies for victims of police misconduct. These include:

1. Filing a complaint with the police department,
2. Asking a court to exclude any evidence that might have been gathered as a result of the misconduct, and/or
3. Filing a Section 1983 civil rights lawsuit.

3. What is a Section 1983 claim?

“Section 1983” refers to the federal statute, 42 U.S.C. Section 1983. A claim under this law holds officers liable for civil rights violations done under the color of law.

“Color of law” can be a confusing term. It refers to an act done under the appearance of legal authorization, when in fact, no such authority existed. Consider, for example, a police officer that arrests a person without probable cause that he or she committed a crime.

At first glance it would appear that the officer would have the authority to conduct the arrest, since after all, the police can arrest people. However, they only have the official authority to arrest if they have probable cause of a criminal act. This means the original act in the example was done under the color of law.

A 1983 lawsuit can lead to the following remedies:

• An injunction, which is a court order that tries to prevent the misconduct from happening again, and/or
• Monetary damages.

An injunction can be a valuable remedy, as it can force a police department to:

• Retain an officer,
• Revise its policies and customs, and/or
• Fire officers.

Monetary damages can include both:

• Compensatory damages, which compensate a victim for his/her financial losses, and
• Punitive damages, which refers to money paid to the victim as punishment for the offender’s actions.

4. Can police misconduct lead to criminal charges?

Police misconduct under RCW 9A.80.010 can lead to criminal charges. The statute specifically states that a violation of the law is a gross misdemeanor. The maximum penalties for a gross misdemeanor include:

• Imprisonment for up to one year in jail; and/or,
• A fine of up to $5,000.

Note that severe acts of police conduct can even lead to more severe criminal charges. The case of George Floyd is an example of this situation. While one of the arresting officers has been charged with second degree murder, the other three arresting officers have been charged with aiding and abetting second degree murder.

The specific facts of a case will dictate what, if any, criminal charges an officer may be charged with.

5. Can police ever use a level of force in the performance of their duties?

Washington law does state that there are occasions when the police can use force during an arrest. RCW 10.31.050 states:

“If after notice of the intention to arrest the defendant, he or she either flees or forcibly resists, the officer may use all necessary means to effect the arrest.”

This language means that an officer is entitled to use “all necessary means” if a suspect of a crime either:

The phrase “all necessary means” says that an officer can use force to make an arrest. In addition, he or she can use as much force as is reasonably necessary to make an arrest.

The determination as to whether an officer used a reasonable amount of force is based upon the facts of a case. Factors that a court may consider are:

Washington law also states that there are times when the police may use deadly force in performing their duties. RCW 9A.16.040 states that the police can use deadly force if it’s:

• to arrest or apprehend any person for the commission of any crime, if the peace officer has probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others.

Under these laws, “good faith” means that:

1. the officer using deadly force acted as a reasonable police officer would have in similar circumstances; and,
2. a reasonable police officer would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual.

6. What can people do to prevent misconduct when questioned for or suspected of committing an offense?

There is not one sole way that a person can prevent police misconduct when he or she is suspected of committing an offense. A person can do a few things, though, that will improve events when he or she is confronted by the police. These are:

1. remain calm,
2. do as the officer says or requests,
3. be polite and respectful, and
4. stay still.

If police stop a person while driving a car, it’s helpful for the driver to turn the vehicle off, put the keys on the dashboard, and place both hands on the steering wheel.

Police have a tremendous amount of power under the laws of Washington State. Current protests are trying to reduce this amount and, some legislation is being introduced to limit it as well. However, the amount of authority given to law enforcement remains great. If you feel you or a loved one has been the victim of police misconduct, you must contact a personal injury attorney immediately.

In addition, if you are a member of our State’s police force, and have been accused of misconduct, you must contact an experienced criminal defense firm. The lawyers at Black & Askerov have over 25 years of combined experience representing individuals wrongly accused of a crime. We have the passion to represent you tirelessly and to fight for you every step of the way. Contact us now and get the legal help you deserve.