John Blomster: Welcome to DISCOVERY, a University of Washington School of Law podcast where we discuss the biggest legal topics with the law school’s distinguished guests and experts from around the world. I'm John Blomster. And today we welcome a very special guest, we're speaking with Enoka Herat, police practices and immigration counsel at the ACLU of Washington. Enoka has been working within the criminal legal system since all the way back in 2009 when she was a UW Law student, class of 2010, working in what was then called the law school’s Innocence Project Northwest. Ever since, she's really been on the front lines of the fight for criminal justice reform, working at the Washington Defenders Association as an attorney before moving into her current role at the ACLU of Washington. She recently joined the law school as part of a special Social Justice Tuesday event focusing on abolishing police violence, and to that end to discuss what is being done on a state and local level in terms of resisting police violence and promoting transparency and accountability, which is exactly what we'll be discussing today. So, we've been really looking forward to having you on. Thank you so much for taking the time to join us.
Enoka Herat: Thank you so much for having me.
JB: So, to kick us off, can you just tell us a little bit about your role at the ACLU of Washington and the kind of work that you're engaging in?
EH: Sure. As the police practices and immigration counsel, I work on policy across the state, whether that's at the local level with ordinances and police departments and sheriff's offices policies or at the state level with state legislation.
JB: So, let's get into it. Even with the guilty verdict for the murder of George Floyd it goes without saying that members of BIPOC communities continue to experience racism and violence from police officers, that at every level locally, statewide, nationally. In Washington, specifically, what is the scope of the violence that these communities experienced, say even just in the last couple of years?
EH: Sure. So, in Washington, over 100 people have been killed by police since Initiative 940 was passed about two years ago. And that was an initiative that brought more attention to law enforcement training and put more resources into law enforcement training on de-escalation and addressing people in mental health crisis. It also changed the criminal standard for when officers can be charged. Washington had one of the most restrictive laws in the country and it brought us sort of in line with a number of other states. But since that was passed, you know, there still has been this high level of police killings. Police in Washington kill about 40 people a year. And yet police officers and their departments are too rarely held accountable. And that really has to change.
JB: There's so much going on right now during the 2021 legislative session in Washington, including some major bills that you've worked on that we're going to get into in a bit, but just more broadly, how did the activism last summer following the murder of George Floyd influence some of these actions that are being taken during this year's legislative session?
EH: We wouldn't be here talking about these bills, if it wasn't for all the people who showed up, who took to the streets, who really called and demanded change last summer in the wake of George Floyd's murder, and the uprisings and protests that followed. You know, just to give you some context, in the 2020 legislative session, there were, you know, a couple of bills around policing. One was around data collection to have a uniform standard across the state. And it didn't even get a hearing, you know, and this year, there were 27 bills introduced around policing, 14 of which passed. It's transformational what has happened. And of course, the transformation isn't over. There's still so much more to do. But it's an incredible step forward.
JB: So, like you say dozens of bills have been introduced, 14 have passed. In terms of process, what role do lawyers play when it comes to working with lawmakers, drafting legislation? And yeah, just what's that process like when it comes to working with lawmakers to get things done that reflect and respond to community needs and priorities?
EH: So, at the ACLU of Washington, our theory of change is really lifting up the voices of people most impacted by the issues we work on. The idea that they are the ones who know the solutions and who are in the best position to fight for the solutions. And so that happened here, too. We worked very closely with the Washington coalition on police accountability. That centers the voices of family members of those who've been killed by police. There are families from about 23 police killings in Washington, and the number is growing. And they were instrumental, the family members, you know, from beginning to end in the process from determining the priorities, the strategy, major decisions, etc. I think the role that I strive to play as a lawyer in this is to be a resource to, you know, in essence translate what they want to see onto paper into policy, and to make sure the policy is strong. But in terms of moving the bills forward, that was a huge team effort by family members as well as by advocates and allied groups.
JB: And so the two major pieces of legislation that we mentioned that you put so much work into address, really two buckets, right? One focusing on tactics, the other one being on use of force. So, I'd love to talk about each bill separately and why they're each so foundational to the broader goals that we're trying to achieve when it comes to police reform. So, in terms of tactics, what was that bill all about? Why was this such a priority? Why was it so important?
EH: That was House Bill 1054, sponsored by Representative Johnson. This bill bands chokeholds, like the one that killed George Floyd, and a broader category of neck restraints that killed Eric Garner in New York and Manny Ellis here in Washington. And the band means that it is out of an officer's toolkit, a prohibited tactic across the state. And so again, you know, this is a step forward. There were other tactics that were banned, as well, such as police officers covering their badges and hiding their identities. No knock warrants. The use of no knock warrants was also banned. And then there are a number of restrictions put into place on other tactics like the use of tear gas, or the use of police dogs and vehicle chases, and shooting at moving vehicles, etc. Another category of things that were prohibited were different types of military equipment, to roll back some of the militarization of police. And studies have shown that when police use these militarized equipment, things like sound cannons and tanks, that these aggressive tools actually produce worse outcomes that increases violence and increases sort of the gulf between police officers and the communities that they are obliged to serve.
JB: That's an enormous piece of legislation with so many different wins that are honestly long overdue. And it's really incredible to see that kind of work. And the other big piece here is regarding use of force. How does that bill differ from the tactics and again, why was addressing use of force such a foundational priority for this kind of work?
EH: Both bills seek to reduce police violence, are both sort of front end protections. The tactics bill takes certain tactics and equipment off the table for law enforcement. The use of force bill, that was HB 1310, transforms when and how police can even use force. So, beyond the tools and equipment, when they can engage in any sort of physical contact with a member of the public. It prohibits officers from using force when there isn't even a crime being committed. And you know, some of these things, they sound so basic, but this is actually a huge step forward. And we've seen so many police killings, where the people who were killed were unarmed running away from the police, you know, not engaged in any sort of criminal activity. So, it would get those sort of off the table.
It emphasizes de-escalation over confrontation, so that everyone has a better chance of going home after an interaction with the police. And it's also foundational, because it changes the legal standards for which police are to be judged. And so right now, the current legal standards, which are failing us, are really the reasonable officer standard, you know, where everything is judged from the viewpoint of the officer. Under current Washington law, there is a statute that says officers can make an arrest by any means necessary. So, that would be repealed and replaced by this new standard, which requires reasonable care to be used. You know, in all these different ways, the standards that we currently have, will be transformed. And we are hopeful that this means that there will be a reduction in violence.
JB: Are there other models, whether from different countries or other states that would apply here in terms of influencing the best way to take these kinds of measures to reform policing, you know, here in Washington State? Or is Washington State really on the leading edge of these kinds of reforms and serving as a model for other states?
EH: Well we have been seeing across the country, many states stepping up and trying to change because this problem is not just in Washington, it's nationwide. And people are trying to look at the institution of policing differently and we're all having conversations about, you know, how we can change Public Safety and actually, what does public safety mean? And so I think Washington, along with California, Colorado, New Mexico, so many other states are really trying to think differently and put in different standards.
JB: What's next? What are the other bills that we should be paying attention to? What are other bills that activists, people who are passionate about this kind of work should be supporting? You know, what's next? Where can we put our put our efforts?
EH: We still must radically change police and policing to ensure that armed police officers aren't the first, last and only resort to harm. Looking forward to the next legislative session and 2022, we do want to push for more accountability. One bill that didn't make it through this year was HB 1202, the Peace Officer Accountability Act, which would allow for victims of police violence a better chance of holding officers and departments accountable for violating our rights. It would create a private right of action for constitutional violations, violations of the use of force standard. It would offer attorneys’ fees too for victims, and it would also allow the attorney general's office to bring pattern practice lawsuits like they do at the federal level.
We should also look for, there's a bill in the Senate to limit traffic infractions and when police can enforce traffic and low level offenses. That really came up in the recent killing of Daunte Wright. In Washington state, Giovonn Joseph-McDade, and so many others who were killed over something as minimal as expired tags, which should never have resulted or caused or justified a police chase. And at the local level, there's lots to do as well. You know, we must look to divest from policing and invest instead in community-based solutions to keep all police, sorry, all people safe. And you know, state legislation is limited in that, you know, it can set conditions for better outcomes, but so much of policing is local. And so when it comes to policing budgets and the role of policing really at the local level, that is really done through ordinance and budgeting and municipal engagement.
JB: More broadly, when it comes to these priority pieces of legislation, the tactics and the use of force. Why were they so important? And why are these such big wins that we should be paying attention to and celebrating?
EH: These bills are a step in the direction of justice. Stonechild Chiefstick. Giovonn Joseph-McDade. Leonard Thomas. Herbert Hightower, Jr. Iosia Faletogo. And so many others, they should be alive today. And true justice means that they wouldn't have been killed in the first place. And these bills, of course, can't bring them back. But they have the potential to bring us towards justice by preventing the unnecessary killing of others.
JB: Finally, what role can law students play towards advancing these goals and fighting back against police violence in the roles that they're in right now as people who are looking to make an impact in the legal profession, but are, you know, still get still gaining that education? What role can law students do right now?
EH: Well, I know that law students are very busy and so then everyone else, there's just sort of the basic level of engagement, which is to send emails to lawmakers, their representatives and state senators and city council members etc. and engage on these issues. And you know, they can look to the ACLU Washington website and sign up for action alerts where they can send emails very easily to their representatives. But if they want to go further, and if they have more time, you know, we have internships around, all year round. They want to engage more in depth on these issues or if they want to do research on these policy concerns and help draft articles and blog posts etc. to raise awareness and public education on these issues. We welcome any sort of participation.
JB: Enoka Herat is police practices and immigration counsel with the ACLU of Washington. She has spent her career on the frontlines of criminal justice reform and the fight against police violence. And she was gracious to join the law school as part of our Social Justice Tuesday series. You can learn more about her work at the ACLU, the legislation that we discussed today, upcoming Social Justice Tuesday events and topics and more at our podcast page at law.uw.edu.
This was so much fun. Thank you very much for joining us today, Enoka.
EH: Thank you so much for having me.
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