What Constitutes Physical Force in Policing?

Representatives Jesse Johnson (D-Federal Way, 30th LD) and Roger Goodman (D-Kirkland, 45-LD) have requested an opinion from the Attorney General. Each of the six questions submited relate to the recently passed legislation addressing police use of force (E2SHB 1310).

Submitted Questions for Opinion:

1.         What constitutes “physical force” in the context of the standard in E2SHB 1310?

2.         Does the standard in E2SHB 1310 preclude an officer from using physical force in the context of an investigatory detention (based on reasonable suspicion and not probable cause) when it becomes apparent that an individual will not otherwise comply with the request to stop?

3.         In light of the standard in E2SHB 1310, are the provisions of Chapter 71.05 RCW, Chapter 13.34 RCW, Chapter 43.185C RCW, and other statutes and court orders (civil or criminal) authorizing or directing a law enforcement officer to take a person into custody to be interpreted as authorizing the officer to use physical force when necessary for that purpose?

4.         In light of the standard in E2SHB 1310, is a law enforcement officer authorized to use physical force pursuant to the emergency aid doctrine, where there is no “imminent threat of bodily injury to the officer, another person, or the person against whom force is being used”? Does using physical force in this manner breach a legal duty to leave the scene, and would an officer’s efforts constitute an exception to the Public Duty Doctrine under the rescue doctrine?

5.         Read together, does section 3(3) of E2SHB 1310 effectively authorize a law enforcement officer to use a chokehold or neck restraint “to protect against his or her life or the life of another person from an imminent threat” despite the specific prohibition of such tactics in section 2 of Engrossed Substitute House Bill 1054 (2021)?

6.         How should the terms “possible, “available,” and “appropriate” in section 3 of E2SHB 1310 be interpreted? Should those terms be interpreted according to their common definitions or according to the “reasonable officer” standard established under Graham v. Connor, 490 U.S. 386 (1989), which provides that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”?

Opinion Docket No. 21-08-02

Submitting a Comment

Requests for an Attorney General opinion are submitted by heads of state agencies, state legislators, and county prosecuting attorneys. Notice of a request is published when the Attorney General’s office anticipates a formal opinion being published. This notice allows members of the public to provide any legal analysis they would like considered when the opinion is being formed.

Members of the public may submit comments by e-mail to OpinionComments@atg.wa.gov or by mail to:

Office of the Attorney General, Solicitor General Division
Attention Opinions Chief
PO Box 40100
Olympia WA 98504-0100

All comments received proir to the completion of the opinion will be considered. While there is no deadline for comments, it is most helpful to submit your comment within approximately 30 days from the notice (notice was issued August 25, so September 24).

The Attorney General’s Office advises comments focus on the interpretation of the current law, not opinion of what it should be. “In preparing any comments, please be aware that our opinion will provide our considered legal analysis of the question presented, and therefore comments that address the interpretation of the law are more helpful than comments that express an opinion as to what the law should be,” the opinion request notice said.

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