Police reform is back on the menu in Olympia.
As they signaled during the midterms, police lobbyists–with the help of their friends in TV news–will 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, aren’t having it—for now, at least.
In an interview, State Senator Manka Dhingra, Chair of the Senate’s Law & Justice Committee, said her committee wouldn’t waste time on a GOP bill based on “politically motivated” complaints from cops. Instead, she said Democrats in Olympia would focus on “solving real problems.”
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 someone’s civil rights. Unless the violation of the law was so “clearly established” that the officer should have known the conduct was illegal, they can pretty much escape liability.
In practice, proving the “clearly established” part of that test is nearly impossible. As King County Superior Court Judge David Whedbee explained to NWSidebar last year, judges frequently interpret the “clearly established” 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 “if we tase him, he’s going to light on fire,” the two cops did exactly that. And, as the more reasonable cop predicted, he burst into flames.
When the man’s family tried to sue the two officers, the Fifth Circuit Court of Appeals dismissed the lawsuit due to the officers’ defense of qualified immunity. The Court explained that overcoming qualified immunity requires proving that the cops had “fair notice” that their actions would be unlawful.
While another officer warning them of the obvious consequences of their actions would seem like “fair notice” to any normal person, “fair notice” in this specific legal context means a prior case where an officer in extremely similar circumstances was held liable for violating someone’s constitutional rights.
As a result of that tendency to interpret “fair notice” so narrowly, judges dismiss most cases against officers on technical legal grounds rather than having a jury weigh the merits of the case.
HB 1025 would end that practice, and it would allow people who win cases against bad cops to recover attorney’s 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 victim’s civil rights in a fight for “answers, damages, and justice.”
Tough Battle Ahead
Despite Rep. Thai’s success in getting a similar bill passed out of the House’s Civil Rights & Judiciary Committee in 2021, ending qualified immunity will likely be a tough battle this year.
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.
Colorado was the lone exception, and its bill only passed because its legislature was still in session when protests over Floyd’s murder erupted nationwide.
At a committee hearing last year, Colorado State Representative Leslie Herod told Washington’s lawmakers that the dire warnings from police lobbyists didn’t pan out in her state. She testified that Colorado’s 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.
But it’s 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. Thai’s bill in 2022 out of concern that the new cause of action could result in significant costs to local governments. That’s 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 someone’s 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 “strongly encouraged” by the work Rep. Thai has done to address their concerns in the bill.
Now, it will be up to Rep. Thai’s 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.
