On November 6th, the people of Washington state passed a substantial criminal justice reform initiative which enjoyed 60% of the statewide vote. The measure, known as Initiative 940 (or “I-940”), updated Washington’s worst-in-the-country approach to police use-of-force cases. Prior to election day, attempts to prosecute unjustified police killings needed to prove that the officer had “malice” in their heart at the time of the shooting before they could be held accountable. Under this standard, only one killing out of the 263 that occurred in Washington between 2005 and 2016 resulted in prosecution, and that sole officer was acquitted. I-940 replaced this standard with a more commonplace “good faith” standard. While prosecuting police under a good faith standard is not without its pitfalls, it’s an undeniably more manageable bridge for prosecutors to cross.
But the fanfare that accompanied this paradigm shift overshadowed several other notable changes. In addition to relaxing the standard for officer criminal liability, Initiative 940 included provisions mandating de-escalation and mental health training for police, as well as creating a duty for police officers to render first aid. This last portion of the bill deserves special attention, and its inclusion in an initiative to address police use of force is no accident. This duty would also require police to aid those injured by car accidents or violent crime, but by creating an obligation for officers who shoot a suspect to render first aid immediately afterward, I-940 is a powerful tool for mitigating tragedies like the killing of Tamir Rice, who was 12 when police shot him on this day four years ago, and then made no attempt to offer first aid.
Because each state, municipality, and police department promulgates their own rules about police training, equipment, and responsibilities, an investigation to determine precisely how novel I-940’s first aid mandate actually is would be an undertaking beyond the scope of this article, but the consensus appears to be that strict duties to provide first aid are exceedingly rare. In light of this novelty, I-940’s first aid provision should serve as a roadmap for police reform in other jurisdictions.
Despite a popular assumption to the contrary, it is not necessarily the case that a police officer is trained to administer any kind of first aid, nor that those who have the necessary training have been issued any equipment to that end. Moreover, while many departments require some amount of first aid training when an officer is seeking certification, few mandate continuing education for officers. Police whose first aid skills have atrophied can be reluctant to rely on them in an emergency. Those who might be familiar with first aid practices can still be nervous about potential legal liability if they perform first aid incorrectly, and a number of officers have publicly expressed that concern over blood-born illness exposure prevents them from performing first aid. When dealing with a gun shot would, however, even a few minutes can spell the difference between life and death, and a life-saving tourniquet can be applied while wearing gloves, if an individual is properly trained.
But it’s more than a lack of practice that motivates police reluctance to administer first aid. Some departments have policies that prevent officers from providing first aid, and even in places where another source of police authority encourages officers to render aid, departments are often free to interpret that language broadly, requiring only that the officer call EMT’s at the earliest opportunity.
All of these factors, taken together, lead to the too-common image of a police shooting: police standing nearby while the person they shot bleeds on the ground. In a world where more than a few police shootings turn out to be mistakes, and where it is ostensibly the role of police to apprehend–not execute–those suspected of criminal wrongdoing, the importance of subsequently rendering first aid as a community norm is obvious.
Initiative 940’s elegant solution addresses many of these problems by statutorily creating a duty that law enforcement personnel “render first aid to save lives,” and mandating that an array of Washington state stakeholders create guidelines for first aid training requirements. These measures, if properly enacted, should ensure that all police officers possess the requisite first aid training, and, by “assist[ing] agencies and law enforcement officers in balancing competing public health and safety duties,” ensure that officers are not overly constrained by unfounded fear of legal repercussions or the risk of communicable disease. The final clause of I-940’s section establishing the duty to render first aid (Part V, Sec. 6 (2)(c)) leaves a bit of wiggle room at odds with the rest of the measure’s language, however. It reads:
…law enforcement officers have a paramount duty to preserve the life of persons whom the officer comes into direct contact with while carrying out official duties, including providing or facilitating immediate first aid to those in agency care or custody at the earliest opportunity. (emphasis added)
It’s possible that this section will be interpreted to return us to the status quo, where a phone call to EMT’s is sufficient “facilitation” of first aid. If so, Washington might continue to see first aid-trained officers loitering over bleeding suspects waiting for help to arrive. But the statutory language surrounding that section suggests that a more appropriate interpretation would require police to provide or facilitate immediate first aid. Under this interpretation, the first aid would come from the officers themselves as a first resort, but leaves room for the officers to delegate that duty to more appropriate custodians if those individuals are immediately available. Under this reading, the statute simply recognizes that an officer is not in breach of duty if EMT’s or a passing ER Nurse are immediately situated to oversee the care of the injured party.
I-940, by statutorily creating a duty for police to render first aid, may also make it easier for victims of inattentive police to obtain compensation by circumventing qualified immunity to 42 U.S.C. § 1983 civil rights claims and the discretionary function exception to state Tort Act claims.
1983 claims requires either a constitutional or statutory hook to sustain a civil rights lawsuit, and qualified immunity protects police officers from liability from civil rights violations unless the constitutional or statutory right that was violated was clearly established prior to violation. The Supreme Court’s definition of “clearly established” is extraordinarily narrow, requiring the contours of a particular right must be clearly articulated before a court may find an officer liable for its violation. By creating a statutory duty for police officers to administer first aid to all those with whom they come into direct contact, I-940 provides both the hook and the clearly articulated right that might allow for successful § 1983 suits after a police officer shoots a suspect and fails to mitigate the harm done using first aid.
State tort acts allow victims of tortious activity to sue the respective state and bypass that state’s traditional sovereign immunity from lawsuits for money damages. Many states recognize something called a “discretionary function exception” to those acts, which offers broad protection to government entities sued for choices that they made while engaged in any of their office’s discretionary duties. Absent a statutory mandate to provide first aid, the argument that police officers who neglected to do so were merely engaged in an exercise of discretion is a strong one. Washington’s Tort Claims Act doesn’t contain a discretionary function exception, but I-940’s statutory duty is a valuable model future legislation in those states that do recognize such an exception.
I-940’s mandate of first aid is not without its critics, however. Prior to election day, Washington lawmakers passed HB 3003, a version of the initiative that incorporated compromises reached between interested parties. HB 3003 including a modification to the first aid mandate that required officers to “provide or facilitate first aid…at the earliest safe opportunity…at a scene controlled by law enforcement”, but the Washington Supreme Court overturned the legislation, holding that the legislature was not empowered to modify an initiative until it has been adopted by the electorate. The reworked language from HB 3003 would undercut much of the first aid provision’s potential, giving officers substantial room to argue that any failure to administer first aid resulted from a lack of safety or an uncontrolled scene. Were states that recognized the discretionary function exception to adopt HB 3003’s language, failure to administer first aid would likely be immune to suit under that state’s Tort Claims Act, and any argument that there was a clearly identified duty for the officer to provide aid for the purposes of § 1983 liability would be an uphill battle. Now that November 6th is behind us, the legislature is once again free to amend the initiative through normal legislative processes, and it seems likely that the statutory duty to provide first aid will be softened.