August 20, 2021
Police, mental health workers face challenge, confusion with new use-of-force law
Matt Benoit

Laws governing use of force followed last summer’s marches and rallies calling for reforms in police practices (at left, marchers in Bellingham in June 2020). As laws aiming to do that begin to take effect this year, challenges and even confusion have followed among law enforcement officers, social services workers, legal authorities and community members. (Salish Current photo © 2020)

August 20, 2021
Police, mental health workers face challenge, confusion with new use-of-force law
Matt Benoit

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In the wake of nationwide outrage over bad policing incidents like the one that claimed the life of George Floyd last year in Minneapolis, the Washington State Legislature passed a series of bills this year to create more accountability and safety for law enforcement agencies.

Since the bills took effect July 25, however, much debate has arisen about several of the laws. This includes House Bill 1310, which brings several changes to how and when police can proceed with permissible uses of force. Law enforcement officers and lobbyists, mental health professionals, attorneys from local and state agencies, legislators and individuals — both supportive and critical of the new law — have weighed in. [Read more: ‘Community Voices / New police laws will make our communities safer,’ Salish Current, Aug. 3, 2021]

Concern from both law enforcement and citizens has focused on whether police are prohibited from responding to assistance calls where criminal conduct is not taking place, such as with a mental health crisis or other type of community caretaking call. To clarify, the Washington State Attorney General’s office issued a legislative memorandum on Aug. 2 asserting that 1310 in no way prohibits response. 

Although some departments have issued statements suggesting they could be less likely to respond as often to behavioral health calls, Bellingham Police Department Lieutenant Claudia Murphy said her department is not one of them. 

Murphy said 1310 isn’t about responding to a call, but rather, what police may do once they get there. Police can continue responding to behavioral health calls as they always have and stay for the entirety of an incident if that’s what’s best. 

Officers can use physical force to protect against criminal conduct when probable cause is present for an arrest, as well as make an arrest, prevent an escape, or protect themselves, others, or the person receiving force if there’s imminent threat of bodily injury.

‘Leaving the area’

The difference in when they use force is now different, Murphy says, because of a single phrase in the bill: “leaving the area.” 

If any call presents a situation that may escalate to requiring physical force, Murphy said police must exhaust available de-escalation options before using this force. This includes re-positioning themselves physically, designating a single officer for communication purposes, calling for crisis intervention teams or mental health professionals, and calling for backup if resistance is met.

But if police have tried all de-escalation options and not resolved a situation where no crimes have occurred and the threat of imminent harm does not exist, Murphy said police are now compelled by the new law to leave before possibly returning. 

“Unfortunately, [the situation] has to get worse before we come back,” she said. “We have to get to a point where a criminal act has occurred, and we just hope and pray that that’s not against a citizen or one of the mental health workers.”

The Whatcom County Sherriff’s Office is also still planning to respond to mental health issues that may have associated public safety issues, said Bill Elfo, Whatcom County Sheriff.

But Elfo, too, brought up the terminology of “leaving the area” with regards to behavioral health calls. 

“Staging in the area to assist mental health professionals after we’ve determined we should leave the area may be problematic,” he said in an email. “The statue does not define what constitutes ‘the area’.”

Law and opinion

Asked about the memo from the Attorney General’s office, Elfo said his department is not relying on it because it lacks the force of law and is more of an “unofficial opinion” sent to legislators. 

Instead, Elfo said, the department relies on legal advice they receive from Whatcom County Prosecuting Attorney Eric Richey and senior staff members. Elfo said he also relies on presentations from legislative liaisons to the Washington Association of Sheriffs and Police Chiefs which he said provide perspectives coinciding with advice from Richey and other police chiefs around the state. 

Murphy said that police are constantly assessing calls based on the laws they must follow, and behavioral health calls are no different. While many medical calls utilize fire department assistance, not all behavioral health calls may require it. 

“If someone is talking to a tree, and waving a stick around, there’s nothing the fire department can do for them,” said Murphy. “But there’s also nothing that we would do for them. Shouting at a tree and waving a stick is not a criminal act; they’re not a danger to themselves, they’re not a danger to someone else. But it’s also not a clear-cut medical problem.”

However, Murphy said, police can and do call Mobile Crisis Outreach Teams (MCOTs) or Designated Crisis Responders (DCRs) in responding to mental health calls, and will leave if a crisis responder or social worker has the situation under control or if the person in crisis is agitated by police presence. 

Already de-escalating

Lee Bennett, a Bellingham social worker with years of experience as a crisis de-escalator, said that BPD had already been de-escalating some crisis situations well before 1310 took effect. 

Bennett recalled an incident last year in which a Bellingham police officer responded to the scene of a distraught man Bennett was dealing with outside the Catholic Community Services facility in downtown Bellingham. When the man verbally threatened to kill the officer, the officer got back into his patrol vehicle and left the scene, Bennett said.

Bennett said he later spoke with the officer, who told him that even if he’d have arrested the man, there would not have been space at the Whatcom County Jail to detain the man. In general, Bennett said he often feels safer when police are not at the scene when he is attempting to de-escalate someone. 

“There’s no reason to be bringing guns into 99% of all things that [are] behavioral health,” he said. “We’re talking about addiction and mental health issues. And this is coming from a person who de-escalates people with machetes and hatchets every day.”

Crescent Munsen, a behavioral crisis interventionist in Bellingham, said both police officers and social workers who specialize in crisis response have had somewhat overlapping jobs for years now. Police have executed pickup orders to transport citizens in mental health crisis, while social workers have had to de-escalate potentially violent situations on their own.

Munsen has had to occasionally physically intervene with those in distress, at risk to her own personal safety, to prevent clients from escalating a potentially dangerous situation.

“I don’t have a gun,” she said. “I have a badge that says, ‘Hi, please calm down’.”

Police involvement

Both social workers say that, at whatever level changes in policing occur, police involvement is still important. 

“Even if you are for ‘defund the police,’ and you are for no police presence and total change in community policing,” Bennett said, “if the police are not integrated in the current system that we’re in right now, there’s going to be people not making it out of this [alive].”

While it is unclear how many behavioral health calls local law enforcement is responding or not responding to, Bennett said changes in police response began happening last summer during widespread social unrest over police brutality. 

Munsen indicated that police are becoming less and less likely to execute pickups for involuntary mental health holds, where a person in crisis is transported by police to either a hospital or other crisis stabilization facility. 

Getting an officer to respond to a pickup request, she said, often depends on a social worker’s rapport with a specific officer. In some cases, Munsen said she has written affidavits and gotten DCRs to sign off on a person, only to have police not show up to transport the person. 

Bennett also claims that Bellingham police began trying to handle more behavioral health call responses through telephone calls than in-person responses. Like Munsen, he said he saw multiple occasions last year when pickup orders from DCRs went unexecuted. 

Even in other situations where police may have been helpful, Bennett claims officers were nowhere to be seen. 

“We have been left in many situations where we had no armed response,” he said. “Where we were told on the phone, ‘If there’s a stabbing, shooting, or someone you can find to press charges, we will come down. Other than that, that’s it. We’re gonna start a case number.’ In a situation where I have a six-person bar fight going on, with weapons.”

Munsen worries, especially, about police declining to manage a situation at a nonviolent intervention facility in which staff aren’t trained to use force towards a potentially violent client. Refusal of police intervention then might lead to future incidents in which a facility declines certain referrals to minimize their own risk. 

“Essentially,” she said, “there’s conversation happening where they’re saying, ‘Are we going to have to deny folks in crisis because we don’t have the backing?'”

Not ‘us versus them’

All of this, of course, is causing a lot of confusion and concern for everyday citizens, and frustration for those in the trenches of everyday street work. 

Both Munsen and Bennett said current issues with policing — and its overlap with social services — won’t change overnight. But they hope solutions can be found to the benefit of both social workers, police departments, and those they serve. 

“We really need to start understanding one another, instead of doing the ‘us versus them’ thing,” Munsen said.

Bennett also said he’d like to see more nuanced and better integration of police and social services moving forward. Both he and Munsen point to the success of the Eugene, Oregon, Crisis Assistance Helping Out On The Streets (CAHOOTS) program. The community-policing program uses two-person teams consisting of medics and crisis workers to respond to crises involving mental health, addiction and homelessness. 

Both social workers also believe higher-level voices need to let those on the front lines take the microphone and offer solutions, because they know best what will or won’t work.

As departments and citizens and social workers all adapt to shifting methods of policing, it’s clear that everyone still has a lot to learn going forward. The path to change, however, is clearly underway.  

“Now’s the time to start doing something,” Munsen said. “Because otherwise it’s going to pass us by.”

— Reported by Matt Benoit

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