HONOR ROLL
543rd Session, Basic Law Enforcement Academy – December 12, 2001 through April 24, 2002
President:Sean Gillebo - Lynnwood Police Department
Best Overall:Patrick M. Griffee - Washington State Gambling Commission
Best Academic:Patrick M. Griffee - Washington State Gambling Commission
Best Firearms:Gary T. Dahm - Gig Harbor Police Department
Tac Officer:Joe Engman - Bellevue Police Department
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June LED TABLE OF CONTENTS
2002 LEGISLATIVE UPDATE -- PART TWO...... 2
year 2002 Washington State legislative enactments index...... 14
2000 act on child passenger restraints goes into effect...... 16
BRIEF NOTES FROM THE UNITED STATES Supreme Court...... 16
PUBLIC HOUSING AUTHORITIES MAY EVICT TENANTS BASED ON DRUG VIOLATIONS THAT ARE COMMITTED BY OTHERS WITHOUT THE TENANTS’ KNOWLEDGE
H.U.D. v. Rucker, 122 S.Ct. 1230 (2002)...... 16
FEDERAL STATUTE BANNING VIRTUAL CHILD PORNOGRAPHY HELD TO BE OVERBROAD IN VIOLATION OF FREE SPEECH PROTECTION OF THE FEDERAL CONSTITUTION
Ashcroft v. The Free Speech Coalition, 122 S.Ct. 1389 (2002)...... 17
brief note from the Washington state Supreme Court...... 17
NO TERRY SEIZURES ARE ALLOWED FOR NON-TRAFFIC CIVIL INFRACTIONS
State v. Duncan, ___ Wn. App. ___, 43 P.3d 513 (2002)...... 17
Washington STATE Court of Appeals...... 19
CUSTODIAL ARREST FOR DRIVING WHILE SUSPENDED UPHELD EVEN THOUGH OFFICER DID NOT FOLLOW LOCAL POLICY BY CHECKING WITH JAIL BEFORE ARRESTING AND CONDUCTING SEARCH INCIDENT TO ARREST; ALSO, SUSPECT’S LOCKING HIS TRUCK AFTER HE WAS ARRESTED DID NOT PRECLUDE SEARCH-INCIDENT OF TRUCK
State v. O’Neill, ___ Wn. App. ___, 42 P.3d 522 (Div. III, 2002)...... 19
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2002 LEGISLATIVE UPDATE -- PART TWO
LED Introductory Editorial Notes: This is Part Two of a three-part update of 2002 Washington legislative enactments of interest to law enforcement. We included in Part One last month enactments which had already gone into effect. Note that, unless a different effective date is specified in the legislation, enactments adopted during the 2002 regular session take effect on June 13, 2002, i.e., 90 days after the end of the regular session.
Thank you to Tom McBride and Pam Loginsky of the Washington Association of Prosecuting Attorneys and to Rich Melnick of the Clark County Prosecuting Attorney’s Office for providing us with helpful information.
Consistent with our past practice, our legislative updates will for the most part not digest legislation in the subject areas of sentencing, consumer protection, retirement, collective bargaining, civil service, tax, budget, and worker benefits. We have included at page 16-17 below a cumulative index of enactments covered in the first two parts, as well as legislation that we plan to cover in Part Three next month.
The text of the 2002 legislation is available on the Internet, chapter by chapter, at [ We will incorporate some RCW references in our entries, but where new sections or chapters are created by the legislation, the State Code Reviser must assign the appropriate code numbers. Codification will likely not be completed until early fall of this year.
We remind our readers that any legal interpretations that we express in the LED are the views of the editors and do not necessarily reflect the views of the Attorney General’s Office or of the Criminal Justice Training Commission.
REQUIRING LOCAL POLICIES AGAINST RACIAL PROFILING
CHAPTER 14 (ESB 5852)Effective Date: June 13, 2002
The Final Bill Report summarizes this act as follows:
Local law enforcement agencies are to comply with the recommendations of the Washington Association of Sheriffs and Police Chiefs regarding the issue of racial profiling. The agencies must:
Adopt a written policy designed to condemn and prevent racial profiling… Review existing procedures, practices, and training to ensure that they do not enable or foster the practice of racial profiling…Continue training programs to prevent occurrences of racial profiling…Institute a citizen complaint review process to address instances of racial profiling and to provide appropriate disciplinary procedures within each department…Work with minority groups in their community…Within fiscal constraints, collect demographic data on traffic stops and analyze that data to ensure that racial profiling is not occurring.
The Criminal Justice Training Commission is to ensure that racial profiling issues are addressed in law enforcement training classes conducted by the Commission. The Washington Association of Sheriffs and Police Chiefs must report to the Legislature by December 31, 2002, and each year thereafter, on the progress and accomplishments of local law enforcement agencies in meeting the requirements and goals of the act.
FIXING “FREE SPEECH” PROBLEM IN SECOND DEGREE EXTORTION STATUTE
CHAPTER 47 (SB 6602) Effective Date: June 13, 2002
Amends RCW 9A.56.130 by inserting the word “wrongful” just before the word “threat.” Thus, only “wrongful” threats are covered under the revised law. Section 1 of the act points out that this amendment corrects a “free speech” defect identified by Division One of the Washington State Court of Appeals in State v. Pauling, 108 Wn. App. 445 (Div. I, 2001) Dec 01 LED:20.
MODERNIZING “PHOTOGRAPH” DEFINITION IN LAW OF “SEXUAL EXPLOITATION OF MINORS”; PROVIDING QUALIFIED CIVIL IMMUNITY FOR COMPUTER-REPAIR/MAINTENANCE PERSONS WHO MAKE REPORTS IN “GOOD FAITH”
CHAPTER 70 (HB 1512) Effective Date: June 13, 2002
Amends the definition of the verb, “photograph,” at RCW 9.68A.011(1) to include making a “digital image,” and the definition of the noun “photograph,” to include “intangible” things. Also adds the following civil immunity provisions to RCW 9.68A.080:
(2) If, in the course of repairing, modifying, or maintaining a computer that has been submitted either privately or commercially for repair, modification, or maintenance, a person has reasonable cause to believe that the computer stores visual or printed matter that depicts a minor engaged in sexually explicit conduct, the person performing the repair, modification, or maintenance may report such incident, or cause a report to be made, to the proper law enforcement agency.
(3) A person who makes a report in good faith under this section is immune from civil liability resulting from the report.
EXPANDING “ROBBERY IN THE FIRST DEGREE” TO COVER ALL ROBBERIES FROM“FINANCIAL INSTITUTIONS”
CHAPTER 85 (SSHB 2511) Effective Date: June 13, 2002
Amends RCW 9A.56.200 to add an alternative way that robbery in the first degree can be committed. If a robbery is committed “within and against a financial institution as defined in RCW 7.88.010 or 35.38.060,” then the robbery is a first degree robbery even if no deadly weapon, apparent deadly weapon, or bodily injury is involved in the crime. “Financial institution” includes any bank, bank branch, state bank, trust company, national banking association, stock savings bank, mutual savings bank, savings and loan association, or a credit union – so long as the institution is authorized by federal or state law to accept deposits in this state.
AGGREGATING VALUE FOR ALL THEFTS COMMITTED IN ONE “CRIMINAL EPISODE”
CHAPTER 97 (HB 2605) Effective Date: June 13, 2002
Amends RCW 9A.56.010(18)(c) by adding a “criminal episode” alternative for aggregating the value of multiple thefts to determine the degree of crime. “Criminal episode” is defined as “a series of thefts committed by the same person from one or more mercantile establishments on three or more occasions within a five-day period.”
WAIVING FEES, COSTS FOR SOME PROTECTION ORDERS UNDER CHAPTER 10.14 RCW
CHAPTER 117 (EHB 2655) Effective Date: June 13, 2002
Amends chapter 10.14 to add a new section providing for a statutory waiver of filing and service fees in some circumstances:
No fees for filing or service of process may be charged by a public agency to petitioners seeking relief under this chapter from a person who has stalked them as that term is defined in RCW 9A.46.110, or from a person who has engaged in conduct that would constitute a sex offense as defined in RCW 9A.44.130, or from a person who is a family or household member as defined in RCW 26.50.010(2) who has engaged in conduct that would constitute domestic violence as defined in RCW 26.50.010(1).
Other sections of the act amend RCW 10.14.040, 10.14.100, 10.14.125, and 26.50.125 to reflect this change.
CLARIFYING “ACTING FOR COMMERCIAL PURPOSES” UNDER FISH & WILDLIFE LAWS
CHAPTER 127 (SHB 2426) Effective Date: June 13, 2002
Revises the Fish and Wildlife code to clarify the meaning of “acting for commercial purposes.” This act was in response to the Court of Appeals decision in State v. Mertens, 109 Wn. App. 291 (Div. II, 2001) Feb. 02 LED: 14, which held that the then-existing law contained an unconstitutionally conclusive presumption.
Section 1 of the act adds a new section stating legislative intent as follows:
The legislature intends to clarify that when a crime under chapter 77.15 RCW requires proof that a person acted for commercial purposes, that element refers to engaging in particular conduct that is commercial in nature and the element does not imply that a particular state of mind must exist. This act revises the existing definition of that element to confirm that the element is fulfilled by engaging in commercial conduct and to eliminate any implication that a particular mental state of mind must be shown. Examples are given of the type of conduct that may be considered as evidence that a person acts for a commercial purpose; however, these examples do not create a conclusive presumption that a person acts for a commercial purpose.
Section 2 of the act, among other things, amends subsection (1) of RCW 77.15.110 to read as follows:
(1) For purposes of this chapter, a person acts for commercial purposes if the person engages in conduct that relates to commerce in fish, seaweed, or wildlife or any parts thereof. Commercial conduct may include taking, delivering, selling, buying, or trading fish, seaweed, shellfish, or wildlife where there is present or future exchange of money, goods, or any valuable consideration. Evidence that a person acts for commercial purposes includes, but is not limited to, the following conduct:
(a)Using gear typical of that used in commercial fisheries;
(b)Exceeding the bag or possession limits for personal use by taking or
possessing more than three times the amount of fish, seaweed, shellfish, or wildlife allowed;
(c)Delivering or attempting to deliver fish, seaweed, shellfish, or wildlife to a person who sells or resells fish, seaweed, shellfish, or wildlife including any licensed or unlicensed wholesaler;
(d)Taking fish or shellfish using a vessel designated on a commercial
fishery license or using gear not authorized in a personal use fishery;
(e)Using a commercial fishery license;
(f)Selling or dealing in raw furs; or
(g)Performing taxidermy service on fish, shellfish, or wildlife belonging to another person for a fee or receipt of goods or services.
GIVING FULL LAW ENFORCEMENT POWERS TO FISH AND WILDLIFE OFFICERS
CHAPTER 128 (ESSB 6076) Effective Date: June 13, 2002
Amends RCW 77.12.055 to give full law enforcement powers to Fish and Wildlife officers. Subsection (1) of RCW 77.12.055 thus is amended to read as follows:
(1) Fish and wildlife officers and ex officio fish and wildlife officers shall enforce this title, rules of the department, and other statutes as prescribed by the legislature. Fish and wildlife officers who are not ex officio officers shall have and exercise, throughout the state, such police powers and duties as are vested in sheriffs and peace officers generally. An applicant for a fish and wildlife officer position must be a citizen of the United States of America who can read and write the English language. All fish and wildlife officers employed after the effective date of this section must successfully complete the basic law enforcement academy course, known as the basic course, sponsored by the criminal justice training commission, or the basic law enforcement equivalency certification, known as the equivalency course, provided by the criminal justice training commission. All officers employed on [June 13, 2002] must have successfully completed the basic course, the equivalency course, or the supplemental course in criminal law enforcement, known as the supplemental course, offered under chapter 155, Laws of 1985. Any officer who has not successfully completed the basic course, the equivalency course, or the supplemental course must complete the basic course or the equivalency course within fifteen months of [June 13, 2002].
Amends RCW 10.93.020 of the Washington Mutual Aid Peace Officer Powers Act to make Fish and Wildlife officers “general authority Washington law enforcement officers” and amends RCW 10.93.140 to clarify that, as with the powers of officers of the WSP, the powers of Department of Fish and Wildlife officers are not limited by chapter 10.93 RCW, nor is the agency bound by reporting requirements of RCW 10.93.030.
Amends the provisions of RCW 77.15.096 relating to inspection authority of Fish and Wildlife officers by adding a sentence clarifying that:
Authority granted under this section does not extend to quarters in a boat, building, or other property used exclusively as a private domicile, does not extend to transitory residences in which a person has a reasonable expectation of privacy, and does not allow search and seizure without a warrant if the thing or place is protected from search without warrant within the meaning of Article I, section 7 of the state Constitution.
CRIMINALIZING LEAVING CHILD WITH KNOWN, NON-CUSTODIAL SEX OFFENDER
CHAPTER 170 (SHB 2379) Effective Date: June 13, 2002
Adds a new section to chapter 9A.42 RCW reading as follows:
(1) A person is guilty of the crime of leaving a child in the care of a sex offender if the person is (a) the parent of a child; (b) entrusted with the physical custody of a child; or (c) employed to provide to the child the basic necessities of life, and leaves the child in the care or custody of another person who is not a parent, guardian, or lawful custodian of the child, knowing that the person is registered or required to register as a sex offender under the laws of this state, or a law or ordinance in another jurisdiction with similar requirements, because of a sex offense against a child.
(2) It is an affirmative defense to the charge of leaving a child in the care of a sex offender under this section, that the defendant must prove by a preponderance of the evidence, that a court has entered an order allowing the offender to have unsupervised contact with children, or that the offender is allowed to have unsupervised contact with the child in question under a family reunification plan, which has been approved by a court, the department of corrections, or the department of social and health services in accordance with department policies.
(3) Leaving a child in the care of a sex offender is a misdemeanor.
PREVENTING PUBLIC ACCESS TO RECORDS THE DISCLOSURE OF WHICH COULD COMPROMISE SECURITY AT STATE AND LOCAL CORRECTIONAL FACILITIES
CHAPTER 172 (HB 2421) Effective Date: June 13, 2002
Adds a new exemption to the Public Disclosure Act, RCW 42.17.310(1), exempting:
Those portions of records containing specific and unique vulnerability assessments or specific and unique emergency and escape response plans at a city, county, or state adult or juvenile correctional facility, the public disclosure of which would have a substantial likelihood of threatening the security of a city, county, or state adult or juvenile correctional facility or any individual's safety.
ADDRESSING HARASSMENT AND BULLYING IN SCHOOLS
CHAPTER 207 (SHB 1444) Effective Date: June 13, 2002
The House Bill Report on the final version of this bill summarizes it as follows:
Requires each school district to adopt or amend a policy prohibiting harassment, intimidation, or bullying by August 1, 2003. School districts have local control over each policy so long as it prohibits harassment, intimidation, or bullying of any student. It is the school districts' responsibility to share this policy with parents or guardians, students, volunteers, and school employees.
Harassment, intimidation, or bullying are defined collectively as any intentional written, verbal, or physical act that is reasonably perceived as being motivated by the person's race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap, or by other distinguishing characteristics. These characteristics can either be actual or perceived.
Harassment, intimidation, or bullying include any intentional written, verbal, or physical acts that: Physically harms a student or damages the student's property; or Has the effect of substantially interfering with a student's education; or Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment; or Has the effect of substantially disrupting the orderly operation of the school.
The Office of the Superintendent of Public Instruction (OSPI) must develop and provide to school districts a model policy and training materials by August 1, 2002. The model policy should be developed in consultation with representatives of parents, school personnel, and other interested parties.
Additionally, the OSPI is required to disseminate training materials in a variety of ways. The OSPI's website must have a link to the Safety Center web page, where the OSPI must post training and instructional materials as well as their model policy on harassment, intimidation, or bullying. School districts must have direct access to the Safety Center website where districts can post summaries of their policies, programs, partnerships, vendors, and instructional and training materials, and a link to each school district's website. To the extent that resources are available, the OSPI is given the authority to update their existing technology.
Any reprisals, retaliations or false accusations against a victim, witness or person with reliable information about an act of harassment, intimidation, or bullying are prohibited. Employees, students, and volunteers with reliable information about an incident are encouraged to report the incident to an appropriate school official. Employees, students, and volunteers who report violations in compliance with policy procedures are immune from liability for damages for failure to remedy an incident.
ALLOWING ADULTS TO PURCHASE AND POSSESS HYPODERMIC SYRINGES
CHAPTER 213 (SHB 1759) Effective Date: June 13, 2002
Amends RCW 69.50.412 by adding subsection (5) reading as follows:
(5) It is lawful for any person over the age of eighteen to possess sterile hypodermic syringes and needles for the purpose of reducing bloodborne diseases.
Amends RCW 69.50.4121(3) to permit pharmacies to distribute injection syringe equipment. Adds a new section to RCW 70.115 providing that “Nothing contained in this act shall be construed to require a retailer to sell hypodermic needles or syringes to any person.”
CREATING A FOURTH DEGREE OF “CRIMINAL MISTREATMENT”
CHAPTER 219 (SHB 2382) Effective Date: June 13, 2002