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Police reform is back on the menu in Olympia.Â
As they signaled during the midterms, police lobbyistsâwith the help of their friends in TV newsâwill likely spend much of their energy this year trying to convince lawmakers to loosen restrictions on deadly car chases. But it looks like Democrats, who increased the size of their majorities in the State House even after the GOP spent boatloads of cash blaming the party for rising crime, arenât having itâfor now, at least.Â
In an interview, State Senator Manka Dhingra, Chair of the Senateâs Law & Justice Committee, said her committee wouldnât waste time on a GOP bill based on âpolitically motivatedâ complaints from cops. Instead, she said Democrats in Olympia would focus on âsolving real problems.âÂ
At a press conference last month, advocates for police oversight expressed optimism about one of the real problems Democrats could finally solve this session: granting victims of police abuse their day in court.
It's Time to End Qualified Immunity
State Representative My-Linh Thai (D-Bellevue) is sponsoring House Bill 1025, which would end qualified immunity for police officers in Washington state and allow victims of police misconduct to sue for damages in civil court.
Qualified immunity is a legal defense that protects cops from getting sued for violating someoneâs civil rights. Unless the violation of the law was so âclearly establishedâ that the officer should have known the conduct was illegal, they can pretty much escape liability.Â
In practice, proving the âclearly establishedâ part of that test is nearly impossible. As King County Superior Court Judge David Whedbee explained to NWSidebar last year, judges frequently interpret the âclearly establishedâ test very narrowly. They require a precedent of almost the exact same factual circumstances before allowing a case to go to a jury.
This approach leads to absurd outcomes, like dismissing a case where cops tased a man who had doused himself in gasoline and later died from the resulting burns. In that 2017 case, cops in Texas responded to a call where a man was threatening to kill himself by lighting himself on fire. When they arrived on the scene, they spotted him holding a red gas can that he used to cover himself with fuel after the cops tried to pepper spray him. Despite one cop warning the other two on the scene that âif we tase him, heâs going to light on fire,â the two cops did exactly that. And, as the more reasonable cop predicted, he burst into flames.
When the manâs family tried to sue the two officers, the Fifth Circuit Court of Appeals dismissed the lawsuit due to the officersâ defense of qualified immunity. The Court explained that overcoming qualified immunity requires proving that the cops had âfair noticeâ that their actions would be unlawful.Â
While another officer warning them of the obvious consequences of their actions would seem like âfair noticeâ to any normal person, âfair noticeâ in this specific legal context means a prior case where an officer in extremely similar circumstances was held liable for violating someoneâs constitutional rights.
As a result of that tendency to interpret âfair noticeâ so narrowly, judges dismiss most cases against officers on technical legal grounds rather than having a jury weigh the merits of the case.Â
HB 1025 would end that practice, and it would allow people who win cases against bad cops to recover attorneyâs fees in the process.
At a press conference last month, Maya Manus of the Urban League explained that the people who sue bad cops want more than money. Getting their day in court allows victims to force police departments to turn over evidence and other information about the violation of the victimâs civil rights in a fight for âanswers, damages, and justice.â
Tough Battle Ahead
Despite Rep. Thaiâs success in getting a similar bill passed out of the Houseâs Civil Rights & Judiciary Committee in 2021, ending qualified immunity will likely be a tough battle this year.Â
A Washington Post review found that police officers and their unions successfully killed or neutered nearly every attempt by state legislatures to end qualified immunity following the murder of George Floyd. Police lobbyists convinced both red and blue states that officers would go bankrupt and leave the force in droves if states started allowing people to sue police for violating civil rights.Â
Colorado was the lone exception, and its bill only passed because its legislature was still in session when protests over Floydâs murder erupted nationwide.
At a committee hearing last year, Colorado State Representative Leslie Herod told Washingtonâs lawmakers that the dire warnings from police lobbyists didnât pan out in her state. She testified that Coloradoâs ban on qualified immunity did not lead to an increase in cops quitting their jobs or to a flood of lawsuits against police departments. Instead, she said, Colorado actually saw fewer cops leave their jobs in 2020 than in prior years.Â
But itâs not just the cops who took issue with the proposed legislation the last time it was up for consideration in Olympia. The Washington Association of Counties and the Washington Association of Cities both sent lobbyists to testify against Rep. Thaiâs bill in 2022 out of concern that the new cause of action could result in significant costs to local governments. Thatâs because the bill gives some measure of protection to individual cops by sticking their employer (i.e. the cities and counties) with the tab for any judgment against them if they were following a department regulation or policy when violating someoneâs civil rights.
After including that protection, Rep. Thai won over an unlikely ally in her quest to end qualified immunity. At that committee hearing last year, Michael Transue of the Washington State Fraternal Order of Police testified in support of the bill, noting that his organization was âstrongly encouragedâ by the work Rep. Thai has done to address their concerns in the bill.
Now, it will be up to Rep. Thaiâs Democratic colleagues in Olympia to decide if giving victims of police misconduct their day in court is enough of a priority to overcome what will surely be a fierce lobbying effort in opposition by the same groups who opposed the reform last year.