Eyman Wins, Judge Orders Deadly Force Initiative to Go on the November Ballot

Activists launched the campaign for I-940 after the fatal police shooting of Charleena Lyles last year. Nate Gowdy

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A Thurston County judge has ruled that the way the state legislature adopted changes to Washington's deadly force law violated the state constitution. Initiative 940, which was amended and passed by state legislators in a compromise between police unions and anti-brutality activists, will not become law yet. Instead, Judge Christine Schaller ordered the Secretary of State to put the original measure on the November ballot.

BREAKING: Thurston County Judge rules that WA lawmakers' maneuver to change initiative on state deadly-force laws violated state constitution.



Judge Christine Schaller orders @secstatewa to put I-940 on election ballot.



Story soon at https://t.co/OeFiiG6dBt #waleg #waelex https://t.co/LORokSNept

— Joseph O'Sullivan (@OlympiaJoe) April 20, 2018

Tim Eyman, the very familiar anti-tax activist who brought the lawsuit, argued that state lawmakers "went rogue" when they accepted the I-940 deal in early March.* The deal changed the language of the qualified ballot measure.

Right before the close of session, lawmakers rushed to pass the deal, and ended up passing both I-940 as well as its amended version, House Bill 3003. In exchange for the passage of the legislation, the group behind the initiative, De-Escalate Washington, agreed to drop their ballot campaign.

The modified bill charged through both houses of the legislature in just 54 hours. Like the original, HB 3003 makes it easier to hold cops criminally liable for wrongful shootings by removing the state deadly force statute's "malice" clause. That clause, which made it nearly impossible to charge police over deaths in custody, made Washington's deadly force law one of the most restrictive in the country. The reformed bill, however, kept statute's "good faith" language, but added a definition of "good faith" that imposed a test asking what a reasonable officer would do in the same position.

The changed bill did add some demands from police unions, but didn't change the main substance of the initiative. For example, the bill asked law enforcement to render first aid "at the earliest safe opportunity to injured persons at a scene controlled by law enforcement," rather than asking law enforcement to render first aid "to save lives."

But Eyman argued that passing a different version of an initiative that gathered the requisite signatures, then avoiding the ballot, was not legal. Despite the fact that supporters of the original initiative cheered the compromise, Eyman said that the deal "disrespect[ed] initiative signers and prevent[ed] voters from exercising their right to vote."

An opinion from the state attorney general issued three decades earlier supports Eyman's stance. It says that if legislators are going to amend a ballot measure, the alternative has to go on the ballot, too.

Still, polling showed an encouraging amount of statewide support for the original initiative. In a portion of an EMC Research poll for De-Escalate Washington released in February, 68 percent of voters said they supported changing the state's deadly force law and mandating de-escalation training.

Update: Eyman called The Stranger and said Judge Schaller was "relentless" and "unforgiving" in her questioning of lawyers for De-Escalate Washington and the legislature. Eyman added that he viewed De-Escalate Washington's lawyer as "completely mansplaining" the Constitution to Judge Schaller. When told that Eyman's use of the term "mansplaining" was a little surprising, Eyman said, "I thought you might enjoy that."

"It was pretty euphoric experience hearing her take this really strong position in defense of the initiative process," Eyman added over the phone. "It was a very definitive ruling."

Asked whether he would be voting for I-940 come fall, Eyman said no, that it was not, in his words, "my cup of tea."

*The original post said Eyman represented himself in court. He did originally file the lawsuit pro se, but got lawyers for the hearing.