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Originally published February 16, 2011 at 9:02 PM | Page modified February 17, 2011 at 11:19 AM

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Why is it so hard to prosecute a cop? A question of malice

Washington's 25-year-old law regulating of the deadly force by police provides a much broader defense than most other states' laws, a key reason that officers are rarely prosecuted in this state.

Seattle Times staff reporter

Washington's 25-year-old law regulating the use of deadly force by police provides a much broader defense than most other states' laws, a key reason that officers are rarely prosecuted in this state.

The law lays out a four-part test for determining whether use of deadly force is justifiable homicide. The officer must reasonably believe the suspect is attempting to commit a felony; has probable cause to believe his life is in danger, or that or others' lives are; and that the force is "necessary."

But the fourth provision sets an even higher bar: The officer is justified if he is acting "without malice" and in "good faith." Malice is defined in some cases as an "evil intent" or an "abandoned and malignant heart."

"Most states don't have a specific standard like that," said David Harris, a University of Pittsburgh law professor who studies the use of force. Instead, states more often give prosecutors broader discretion in determining whether to charge officers, he said.

Malice is extremely hard to prove, especially against police officers, who jurors are predisposed to believe are the "good guys," said Harris. "Putting a police officer on trial effectively turns the world upside down for the average person."

On Wednesday, King County Prosecutor Dan Satterberg cited the "malice" provision in his nine-page analysis as a reason for not charging Seattle police Officer Ian Birk with killing First Nations woodcarver John T. Williams.

Birk didn't know Williams and had no known animus against Native Americans, the homeless or the mentally ill, according to the analysis.

At a news conference, Satterberg said "a jury could not possibly find unanimously and beyond a reasonable doubt that Officer Birk acted with malice or bad intent."

Seattle attorney Tim Ford, who represents Williams' family, disputed Satterberg's analysis, citing evidence that Birk instigated the deadly confrontation with Williams.

"The question is, why couldn't a jury find malice?" Ford asked at an afternoon news conference.

Washington's justifiable-homicide law was passed in 1986 in the wake of a U.S. Supreme Court case, Tennessee v. Garner, which limited police officers' authority to shoot fleeing suspects. At the time, Washington's law allowed deadly force simply if a suspect was "fleeing from justice."

The changes were introduced by then-Sens. Phil Talmadge and George Fleming, who also introduced a bill banning the use of chokeholds in state prisons.

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Talmadge said Fleming, an African-American legislator from Seattle, intended the law to limit use of deadly force against minorities. They drafted the justifiable-homicide bill based on the recent Supreme Court case law, although it was amended during debate to grant wider protections for use of force by police, Talmadge said.

"We both were roundly criticized by law enforcement," said Talmadge, who went on to serve on the state Supreme Court. "They weren't happy with the bills we proposed."

The effect of the law has been to limit prosecutions of police. The only known exception was a 2009 Snohomish County case in which a jury found an Everett police officer not guilty of killing a drunken driver. A civil claim in that case was settled Wednesday.

In that case, prosecutors sought to show malice by alleging that the officer said something like: "Time to end this; enough is enough," and then opened fire.

Samuel Walker, a University of Nebraska criminal justice emeritus professor, said prosecutions of police nationwide are so rare that many advocates have given up on that strategy and now focus on the police disciplinary process.

"Many activists want a conviction as their definition of justice," said Walker. "The brutal truth is you rarely get it."

Seattle Times staff reporter Lynda Mapes and news researcher David Turim contributed to this report. Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com

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