Whatcom County Sheriff Elfo details how new laws will impact law enforcement in the immediate future

WHATCOM COUNTY, Wash. — Whatcom County Sheriff Bill Elfo sat down today, July 23rd, with Community Programs Coordinator and Sheriff’s Office Spokesperson Deb Slater to publish a video recorded interview explanation of what the community can expect once new laws go into effect that are expected to restrain law enforcement from carrying out their duties as they have for decades prior.

Elfo and other local law enforcement leadership signed an open letter to the public last week, alerting the public to the impacts of the new laws. The Washington Association of Sheriffs & Police Chiefs also issued a statement earlier this week.

The following is a transcript of the video recording.

Deb Slater
Hello. I’m Deb Slater and with me today is Whatcom County Sheriff Bill Elfo. The 2021 Washington legislative session resulted in several major bills that will have significant impacts on law enforcement. We’re here today to talk about those bills and to understand how they will affect law enforcement’s response now. Sheriff before we get into the impacts of these new laws, can you give a brief, I know there’s a lot of them, but can you give a brief synopsis of them and, and when they go into effect.

Sheriff Bill Elfo
Let me start by saying that law enforcement leadership and law enforcement on the ground support laws to increase professionalism, training, transparency and accountability. However, there’s a number of new statutes, 16 in all, that take effect that govern everything from our ability to detain people, to use force, to stop people, to conduct investigations, to how deadly force situations are investigated, to law enforcement officers certification. So there’s a whole myriad of new statutes that take effect. Many take effect on July 25th of 2021 this year.

Deb Slater
Can you elaborate a little bit on the major impacts of these laws?

Sheriff Bill Elfo
Well, the major impacts of these laws are going to be to impede law enforcement in preventing crime and apprehending criminals and in performing their community caretaking functions. They’re going to have very serious ramifications. And I’m talking about those provisions on the limitations on the use of an officers ability to be able to detain someone, to use force to stop someone if even when reasonable and necessary under current law.

Deb Slater
So, now we’re getting into that use of force term is a term that is talked about a lot, can you boil that down for us who aren’t in law enforcement?

Sheriff Bill Elfo
Well, it means that officers’ ability to use physical force, if necessary, a reasonable level of force to be able to detain someone. Well, the a scope that is huge and it can range from just putting your hands on someone to guide them and direct them to, in some situations or rare situations, using deadly force.

Deb Slater
And with these new bills, how is use of force, changing?

Sheriff Bill Elfo
Well, the use of force is going to change because law enforcement is now prohibited from using any, and I repeat the word, any, degree of force, unless they have probable cause, which is a fairly high legal standard to arrest someone for a crime, to prevent an escape, or to prevent imminent harm. So, one of those three criteria have to be present. Under the current law and long standing Supreme Court precedent officers were able to conduct investigative detentions that are commonly called Terry stops. For the purposes of determining if a crime has been committed, they don’t know, they don’t have the probable cause, but it’s a lesser standard based on officers reasonable suspicion based on their training, experience and totality of circumstances that criminal activity is may have been or is about to occur. Now, the people are free to walk away. They don’t have to cooperate with law enforcement and they don’t have to provide any reason. They are free to walk away and I think we’re going to be unique among the other 49 states in that regard that we can no longer conduct Terry stops. I was watching the news the other day and there was a case, I believe it was in the southeast, where a child was abducted. It was a stranger abduction and the description was of a red vehicle leaving the area, and officers only had the description of the red vehicle and that the driver was a white male. They saw a vehicle loosely fitting the description and they had reasonable suspicion to stop and then the vehicle fled. They were able to pursue it and they recovered the child. It turned out to be the perpetrator of the crime and they were able to arrest him. If that had occurred in Washington State, or if it occurs in Washington State after July 25th they’ll no longer have the ability to either use force to stop that vehicle or even to pursue it.

Deb Slater
I can only imagine the frustration within law enforcement. What interagency ,what type of things have, I can imagine there’s been a lot of communication so we’re all on the same page, all the agencies are on the same page. What kind of things have been happening and since this new legislation has been brought to light?

Sheriff Bill Elfo
Will even further before that, we’ve worked to try to educate the state legislature about what the ramifications of this law was going to be and these laws these changes we’re going to be and some of them we support. But handcuffing the police and preventing them from doing their long standing responsibilities to prevent crime and protect the community are really going to be frustrated.

Deb Slater
In a way, we could say that these new laws are keeping law enforcement from upholding the law.

Sheriff Bill Elfo
Exactly. Also vehicular pursuits are prohibited now, unless the officers again have that much higher probable cause standard to believe someone’s committed a serious violent crime. And those are defined in the statute, and they don’t include all felonies. If someone assaults an officer, for example, or commits an act of domestic violence and jumps in their car and drives away, they’re free to drive away. The officer doesn’t have the ability to pursue the vehicle if they choose not to stop.

Deb Slater
So we have additional limitations on use of force. We have a prohibition on pursuits and there’s also a new drug law that was passed.

Sheriff Bill Elfo
Right, the new drug law may have not been under the banner of police reform but it’s going to profoundly affect how we perform our duties. One of the biggest complaints that reaches my desk, when the citizens are dissatisfied and talking to deputies, is neighborhood drug dealing in the public use of narcotics. Earlier this year in February, our state Supreme Court declared all the drug possession laws unconstitutional. And there was a defect in the statute they’d found they overturned existing case precedent that the legislature could have easily cured by inserting the word “knowingly” in front of possession. But instead, they changed all the former felony drug laws to misdemeanors. And that is regardless of quantity which is just shocking as far as I’m concerned, someone can have 50 kilos of cocaine or 50 kilos of deadly fentanyl or heroin or methamphetamine or whatever other drug you can think of. Now they are are simple misdemeanors and statute goes as far to say that we have to direct them to treatment at least two times before we can arrest them or refer them to the prosecutor’s office. So that creates a whole dynamic as how do we know who has been referred and who hasn’t been referred. That’s going to be expensive to get working or get a fix on on our multiagency computer networks. And, you know, a lot of people, we want to see people in treatment, we want to see them not in jail and in treatment but some people aren’t motivated for treatment unless jail hangs over their head. So that, that will be lost.

Deb Slater
Obviously, the ramifications of these new laws are potentially huge, specifically for mental health.

Sheriff Bill Elfo
Well, law enforcement has traditionally, historically performed a caretaking function with people that are in mental health or substance abuse crisis. And no one is a bigger supporter to alternative treatment alternatives than law enforcement is. And we’ve worked to get all our deputies trained in crisis intervention skills to be able to deal with people who are in these crisis. As well, we have some mental health deputy specialists that work on the more complex and repetitive cases to try to act before someone goes on to get involved in the criminal justice system, to defer them to community based treatment options as opposed to taking them to jail and putting them on the treadmill of the criminal justice system. Under the new legislation, if we think someone’s going to escalate and they’ve not committed a crime, they’re not an immediate threat, even though we think they may become a threat in the not too distant future, we’re precluded from using any force. The statute actually goes as far as tells us to leave the area. So this is going to have a profound effect on our ability to help with those situations. Now the firefighters are going to be the alternative responders to these type of calls and they don’t have the legal authority to use force except to defend themselves. The law cites a preference to have mental health professionals to deal with these situations and you know I have a preference for that too but these situations can quickly escalate and turn violent. And we’re leaving our firefighters and we’ll be leaving our mental health professionals, vulnerable since law enforcement is not in the area. So we’re working with the fire districts, we’re working with the County Health Department, to find out how we can best address this. Maybe we’ll have law enforcement stage in the area to be nearby, but outside what the statute describes as “the area.” The statue doesn’t define what the area is but it just tells us to leave the area. So, to me, that doesn’t make a lot of sense, but that’s the law is we’re dealing with. And I’m also concerned that the law creates increased civil liability for the officers if they if they don’t follow the new rules, or they deviate from them. It creates potentially criminal liability for the officers and it also puts them in jeopardy of losing their certification or their license to work as police officers. So I think our officers are going to be more reluctant to engage and be proactive and do what we need to do to help people because of new legislation.

Deb Slater
What changes will the community see from the Whatcom County Sheriff’s Office in our response to reports?

Sheriff Bill Elfo
We’re not going to be able to respond to incidents as we formerly did. Some people may be frustrated that their house was burglarized and the persons are leaving in a vehicle and the vehicle flees. We’re not going to be able to pursue them. People may be concerned that they have a friend or a relative who’s a victim of domestic violence, and the person flees, we’re not going to be able to pursue them. We get called all the time by family members that have a son or a daughter who have mental health issues and we use officers to go down there and calm them down and try to get them in services and evaluate the situation. We’re very successful with what we do in that regard. But we’re not going to be able to help as often or as frequently or to the extent we we currently do as a result of this legislation, you know. And furthermore, we tried to focus on what the public is going to see primarily. But there are other aspects of this law that are unfunded mandates. Where interrogations or interviews of suspects have to be video recorded. And, that puts a big you know, this law takes effect on July 25th and not all agencies budgeted for the equipment needed to do that in advance. Fortunately, the Sheriff’s Offices and the Bellingham Police have body worn cameras and we’re going to be using those. But another prohibition is going to be that we cannot interview a juvenile suspect someone under 18 years old, unless they have an attorney present. Not a parent, but an attorney. And that’s gonna limit our ability to solve crime and it’s going to limit our ability to get both sides of the story. If we suspect a crime has been committed, we can’t only give a suspect the chance to tell their story and perhaps even dissipate probable cause. That’s going to have an impact, a negative impact on justice as far as I’m concerned,

Deb Slater
Sheriff, how did we get here, why did these laws get passed and what is the point of them?

Sheriff Bill Elfo
Well, I don’t want to speculate what was in the minds of the legislature, but I know there was a big push from organizations, grassroot organizations and people to change the laws in response to what happened in Minneapolis with the George Floyd case. And I don’t think what happened with the George Floyd case in Minneapolis, which is halfway across the country, reflects the professionalism we see in law enforcement throughout Whatcom County. You know, our officers are not immune from making mistakes or even engaging in wrongdoing but when they do they’re held accountable and there’s very little or zero tolerance for misconduct. So to take something that’s occurred in another state with different laws and a different culture and then try to extrapolate them as being major issues here in Whatcom County, or Washington State for that matter is, as far as I’m concerned, a wrongheaded decision.

Deb Slater
What are you hoping to happens in response to these laws?

Sheriff Bill Elfo
Well, I hope the public has an understanding of the limitations we’re working under and I’m hoping, maybe against hope, the legislature in the not too distant future will see the effects and the impacts that we’re going to have as a result and will take remedial action to modify them to some extent where they’re more workable and place some paramount on public safety. You know these new laws are also having an effect. We’re seeing more officers retire or having officers resign. We had one of our very skilled detectives with not even 20 years or 19 years of service, pick up and move to Texas. And its very, very difficult to recruit the quality of people that we’ve been looking for. We have far less applicants for positions as they become available. So, officers don’t want to work in this environment, in this atmosphere, and that’s going to have an effect. I’ll close by saying that our law enforcement officers, and not just the Sheriff’s Office, throughout Whatcom County are going to continue to perform the best they can with excellence to serve the community. But now it’s down to what they possibly can do under the new laws and it will be a change and it will be less people being arrested for serious crimes and it’s going to affect safety in our community.

Deb Slater
Sheriff, what can community members do? Concern citizens, what can we do?

Sheriff Bill Elfo
Well, I think the concerned citizens should express their concerns to the members of the legislative delegation that represent them.

Deb Slater
So for more information on this new legislation, you can visit the sheriff’s website through whatcomcounty.us/sheriff. Thank you for being here Sheriff Elfo and thank you for all you do to keep our communities safe.