In a shopping center parking lot, a dying man exposes a gap in Washington’s police reform

The Seattle Times Dec. 19, 2021 at 6:00 am

By Daniel Gilbert
Seattle Times staff reporter

Eric Schirmer parked at a Rite Aid in Mill Creek and sat there month after
month, willing himself to die.

He was 68 years old, a French-born electrical-design engineer who had worked
for Airbus and Boeing, a man whose good looks belied the alcohol that ravaged
him on the inside. After a dispute with his wife, he’d moved out of the
apartment they shared in late May and folded his 6-foot frame into his silver
Dodge Charger.
He scrawled his predicament on a sheet of notebook paper and placed it on the
dash. It read:
His health deteriorated over the summer but he refused help. In early August,
paramedics predicted Schirmer would “probably pass away within days unless
he was seen by a doctor,” according to a police report. A mental health official
determined that Schirmer should be involuntarily committed, said a person
with direct knowledge of the situation, and signed a form directing police to
transfer him to a hospital.
Had it been a few weeks earlier, police might well have removed Schirmer from
his vehicle and done just that. But now officers had a new law to consider.
House Bill 1310, which went into effect July 25, created a statewide standard for
when law enforcement officers can use force. The legislative sponsors intended
to curb excessive use of force by police, but it has sown confusion among
departments about what level of force is permissible when responding to a crisis
that isn’t a crime.
Mental health officials often coordinate with police to evaluate whether
someone needs to be involuntarily committed. Before late July, if the person was
ordered detained and refused to go, police would physically subdue the person
and take them to a hospital.
The new law requires officers to use the least amount of force necessary, but it
doesn’t define “force” or explicitly say how it should be used responding to a
person in crisis. Some police departments have been unwilling to use any force
to involuntarily detain a person who isn’t committing a crime. Others, at least
initially, opted not to respond to some mental health calls.

In the first two months since HB 1310 went into effect, evaluations for
involuntary commitments declined sharply around the state, according to
Washington state Health Care Authority data. One type of commitment — when
patients are temporarily held while waiting for a licensed psychiatric bed —
declined 22% over the three months ending in September compared with a year
earlier, to a level not seen since the spring of 2017.

Without law enforcement on hand, mental health workers might not be able to
safely evaluate a person in crisis, according to county officials who supervise
such work. If someone meets the criteria for involuntary detention but refuses to
go, the officials might not be able to immediately get the person into treatment.
“Historically we’ve had excellent working relationships with law enforcement to
help those individuals and get them into care, and then all of a sudden, we
can’t,” said Cammy Hart-Anderson, who manages a division of behavioral
health for Snohomish County. “My heart goes out to individuals who are
experiencing that behavioral health crisis and their families.”
In King County, with three dozen policing agencies making their own
interpretations of the law, “the biggest impact is the variation in whether we’re
going to get a law enforcement response,” said Kelli Nomura, director of the
county’s Behavioral Health and Recovery Division. “That’s been a challenge.”
Law enforcement officials say the law has taken a toll on officers who want to
help people in crisis without running afoul of the new standards on using force.
In some cases, “We’re waiting for the situation to escalate to fit the definition of
1310,” said Brian Smith, the police chief in Port Angeles. Within a week of the
law taking effect, Smith described responding with social workers and
paramedics to a man wandering in a parking lot in an apparent crisis. Officers
determined they couldn’t use force and left the scene.
They responded again after the man was accused of a misdemeanor assault,
arrested him and turned him over to medical professionals, Smith said. “Luckily
he didn’t hurt anybody.”

Question of force
House Bill 1310 was part of a suite of policing reforms signed into law this year,
fueled by public protests over high-profile cases of officers killing people of
color. The new laws also ban no-knock warrants, chokeholds and neck
restraints, and make it easier to strip officers of their badge for misconduct.
The new standards of using force immediately raised questions. At the request
of lawmakers, the state Attorney General’s Office clarified in August that it
“does not prohibit peace officers from responding to community caretaking
calls, including mental health calls,” though it has yet to issue a formal opinion.
“What has massively changed is what they can legally do when they are there,”
Steve Strachan, executive director of the Washington Association of Sheriffs and
Police Chiefs, said of mental health calls.
“Under the new law, there’s a real question as to whether a law enforcement
officer can put a hand on their back, put a hand on their arm, assist them into
an ambulance or onto a gurney,” he said.
The law says that law enforcement officers can only use force in certain
scenarios: to make an arrest, for example, or to prevent people from killing or
harming themselves or others when the threat is imminent. Before using force,
the law instructs officers to exhaust all other options and to leave the area “if
there is no threat of imminent harm and no crime has been committed, is being
committed or is about to be committed.”
In the Seattle Police Department’s interpretation of the law, “force” means
physical contact that is likely to cause pain or injury, according to a November
directive. “Officers may use reasonable, necessary, and proportional force” to
detain someone “suffering from a behavioral health disorder who presents an
imminent threat” of harm to themselves or others, the policy states.
Other departments have taken a different posture.
“As it relates to welfare checks and behavioral health calls, it would not be
prudent to apply physical force to a person in need of services,” said Jeff Young,
chief of the Mill Creek Police Department, expressing concern that officers could
face liability.
“The headline test”
In the months before the law took effect, Eric Schirmer’s life had come apart. He
was out of work and of ailing health, hastened by alcoholism and poor
nutrition, according to his son, Julien Schirmer. Eric Schirmer and his wife
quarreled over alcohol and finances, according to Julien, who lived with them,
and his father moved into his car.
Marilyn Crosby noticed Schirmer parked at the Rite Aid, and the sign on his
dashboard. She was a regular customer and also lived in her vehicle, though she
did so out of preference for what she called “the van life,” a more minimalist
Schirmer didn’t look like other people Crosby had seen living homeless, she
said. His fingernails were clean. He wore cologne. He reminded her of Sam
Elliott, the mustachioed actor of Westerns, with a French accent.
“You could tell he just didn’t belong,” she said. Crosby offered help but Schirmer
mostly wanted to talk, she said, though he was guarded about his family
Crosby visited him on a weekly basis as spring turned to late summer, and she
witnessed his health deteriorate. He drank strong beers to “make the time go by
faster,” she recalled him saying. He stopped going to a hotel to clean himself up.
He wasn’t eating. He lost control of his bowels. He admitted he was in great
physical pain.

“He was just slowly dying, literally, in front of the entire world,” she said.
Rite Aid employees had also taken note of Schirmer’s condition, calling 911 at
least three times over three weeks. He’d collapsed in the store but declined aid,
they reported. He’d stated he didn’t want to live. He appeared to be dying, an
employee told dispatchers on Aug. 6.
The dispatcher alerted Mill Creek police but officers declined to go, records
show. Paramedics arrived, followed by a designated crisis responder, who has
the authority to involuntarily detain a person under state law. After determining
that Schirmer met the criteria for involuntary commitment, someone on scene
dialed a Mill Creek police officer.
The officer “stated that even with this paperwork and a DCR on scene, they were
still unable to respond and intervene,” according to an incident report by
Snohomish Regional Fire and Rescue.
Young, Mill Creek’s police chief, said he wasn’t consulted on the decision. He
said that before HB 1310 went into effect, officers may have used a minimal
amount of force to remove Schirmer from his car. Now, he said, “it doesn’t pass
the headline test.”
“Picture this,” he said, offering up a headline for an alternative version of events:
“’Mill Creek police use excessive force on person needing medical assistance.’”
He added, “That’s what would be plastered all over the front pages.”
Schirmer’s wife regularly brought him clean clothes and food for a time. But
when the crisis responder called on Aug. 6, she declined to check on him,
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according to an incident report. Persuading him to get help was “a point of
contention for a long time,” Julien Schirmer said, and his mother didn’t think
going there would make a difference.
Crosby said one of the responders on scene mentioned a new law had been
passed. “If he was conscious enough to say, ‘I don’t want help,’ they couldn’t
take him away,” she recalls being told. If she could find him unconscious, “then
aid would be able to remove him from his vehicle,” she later told police.
Mental health workers and paramedics returned over the next days to try to
persuade Schirmer to get medical care, incident reports show.
Crosby kept checking, too. At about 3 p.m. on Aug. 9, Schirmer was less
coherent but told her to leave him alone, she later said. She came back five
hours later. He was slumped over in the driver’s seat, unconscious, not
“He’s gone, he’s gone,” a Rite Aid employee told a 911 dispatcher.
Crosby believes Schirmer would have lived if someone had intervened to treat
his physical pain and mental distress. “It’s just devastating,” she said as she
fought back tears. “Just because he could say ‘no’ didn’t mean ‘no.’ “
Schirmer’s wife, contacted by a Times reporter last month, handed the phone to
her son Julien. “She’s been very upset about everything,” he said. Julien
Schirmer said he expected his father would eventually die but was still shell
“I was angry at him,” he said, but also “sad, regretful about some things.”
“Fundamental duty”
When told of the circumstances of Schirmer’s decline, state Rep. Roger
Goodman, D-Kirkland, blamed the lack of clarity in the legislation and pledged
a legislative fix. “We’re going to make clear that police can use reasonable force
when assisting mental health professionals in crisis calls,” among other
situations, said Goodman, who chairs the House Public Safety Committee.
The new law is unambiguous in one regard. “It is the fundamental duty of law
enforcement to preserve and protect all human life,” it states in the second
Young, the Mill Creek police chief, said he was “very saddened and disturbed”
that his department wasn’t able to do more to prevent Schirmer’s death. “If the
Legislature’s intent is to make law enforcement responsible for the preservation
of human life, it needs to be unequivocally clarified that law enforcement is
permitted to use physical force in all circumstances,” he said. Young tendered
his resignation earlier this month for what he said were “philosophical
differences” not related to HB 1310.
A Mill Creek police officer who responded to investigate Schirmer’s death found
nothing suspicious. An autopsy later concluded he died of chronic alcoholism,
with an ulcer near his bowels listed as a contributing factor.
An investigator for the Medical Examiner’s Office, who joined the officer at the
scene, did what no one had managed to do in the weeks prior: He lifted Eric
Schirmer’s malnourished body and placed him on a gurney.

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